Heavy Metal Steel Company, Inc. places rebar and rebar accessories pursuant to rebar construction contracts, but it also is a reseller of rebar, rebar accessories and other construction supplies on an FOB basis. All FOB sales of goods (the "goods") by Heavy Metal Steel Company, Inc. ("Seller") to any purchaser of the goods ("Buyer") shall be subject to the following terms and conditions, which shall be binding on Buyer and its successors, agents, parents, affiliates and assigns:

1. FOB. If delivery occurs in Seller's own vehicles, the sale shall be FOB the location designated by Buyer for delivery. All other sales shall be FOB the location from which the goods are shipped.

2. Payment. Payment is due on receipt of invoice. Invoices unpaid within 30 days accrue interest and late charges at the rate of 1.5 percent per month.

3. No Warranty; Limitation of Liability. All sales are without warranty by Seller, express or implied. Seller assigns to Buyer any right to pursue recovery from the manufacturer of the goods for any breach of a warranty made by the manufacturer. Seller's liability for delay or default in delivery shall be limited to refund of the purchase price. Seller shall not be liable under any circumstances for incidental, indirect, punitive, special, liquidated, or consequential damages, lost profits, indemnification for damages of any kind claimed or recovered from Buyer by any other party, or attorney's fees.

4. Security Interest; Insolvency of Buyer. Buyer grants a continuing purchase money security interest in the goods and authorizes Seller to file a financing statement describing the goods. Buyer represents and warrants that it is not insolvent. If Buyer is or becomes insolvent, Buyer must notify Seller in writing within five days of becoming insolvent, and Seller shall be entitled to terminate its contract with Buyer at its sole option.

5. Additional or Inconsistent Terms. These Terms of Sale shall prevail over any additional or inconsistent terms or conditions provided in Buyer's purchase order or any other writing and over any additional or inconsistent oral agreements or negotiations unless explicitly accepted in writing by Seller's authorized agent, and Seller rejects any such terms or conditions. However, the terms and conditions contained in any proposal for the sale of the goods that is submitted by Seller to Buyer shall apply except to the extent that they explicitly conflict with these Terms of Sale, and if price, quantity or description of the goods is not specified in Seller's proposal or Seller's invoice, an oral agreement between Buyer and Seller's President or Superintendent regarding the missing term(s) may apply to supplement these Terms of Sale if acknowledged by Seller.

6. Change in Price. Prices quoted by Seller shall remain in effect only for the time specified in Seller's proposal, if any. Otherwise, prices are subject to change in case of a material change in the market price of rebar prior to delivery.

7. Unforeseen Events. Seller shall not be liable for delay or default in delivery resulting from any cause beyond Seller’s reasonable control, including, but not limited to, governmental action, strikes or other labor troubles, fire, damage or destruction of Goods, wars (declared or undeclared), acts of terrorism, manufacturers’ shortages, availability or timeliness of transportation, materials, fuels or supplies, and acts of God (each a "Force Majeure Event"). Upon the occurrence of a Force Majeure Event: (a) the time for Seller’s performance shall be extended reasonably and the Parties shall adjust all affected dates accordingly; (b) the purchase price shall be adjusted for any increased costs to Seller resulting from such Force Majeure Event; and (c) Buyer shall not be entitled to any other remedy.

8. Choice of Law. All sales shall be governed by the laws of the State of California, 8.without regard to its conflicts of law rules.

9. Dispute Resolution. Any dispute between the parties shall be resolved through mediation. If not resolved, disputes will be resolved through binding arbitration in San Diego County, California under the California Arbitration Act. Buyer waives any right to trial by jury and waives any right to bring a class action or "private attorney general" action against Seller through arbitration or in any other forum.

10. Applicability of Terms of Sale. These Terms of Sale shall apply unless written objection is emailed to Seller not later than 24 hours of receipt of invoice. Time shall be of the essence regarding the 24-hour limit for emailing objections.

Loyola Marymount University Student Housing Replacement

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