COILPLUS, INC. TERMS AND CONDITIONS OF SALE OF PROCESSING SERVICES

1. OFFER AND ACCEPTANCE: The terms and conditions set forth herein, together with the applicable quotation or invoice for the processing services (“Services”) and any other Coilplus, Inc. (“Seller”) documents attached hereto or into which these terms and conditions are incorporated by reference (collectively, this “Contract”), constitute an offer or counteroffer by Seller to sell the Services to buyer (“Buyer”).  This Contract is not an acceptance of any offer or counteroffer made by Buyer, and this offer and any contract arising out of this offer are expressly conditioned on Buyer’s assent to all of the terms and conditions set forth in this Contract.  Seller objects to any additional or different terms or conditions contained in any request for quotation, purchase order, or other document or communication previously or hereafter provided by Buyer to Seller, and Seller’s acceptance of any order shall not be construed as assent to any such terms or conditions.  This offer may be revoked by Seller at any time before it is accepted by Buyer, and shall automatically expire thirty (30) days after its date if Buyer has not accepted it before then.  Neither Buyer’s acceptance of this offer nor any conduct by Seller (including, but not limited to, performance of Services or shipment of the final, processed goods (“Goods”)) shall oblige Seller to sell to Buyer any Services in excess of the amount that Buyer has committed to purchase from Seller at the time of such acceptance or conduct.
2. MATERIALS: For each order of Services, Buyer, at its risk and expense, shall timely deliver to Seller’s facility an amount of the goods/materials necessary for processing into the Goods (“Materials”) that is adequate to enable Seller to produce the quantity of Goods required for such order in accordance with this Contract.  Buyer represents and warrants to Seller that (a) Buyer has all right, title and interest in the Materials free of all liens, (b) all documentation furnished by Buyer with respect to the Materials is accurate, (c) the Materials, unless otherwise approved in advance by Seller, do not contain any potentially hazardous, toxic, carcinogenic or otherwise deleterious substances (collectively, “Hazardous Substances”), (d) all Materials containing Hazardous Substances will be packed, labeled, transported and delivered to Seller in accordance with all applicable rules, regulations, tariffs, ordinances and statutes and be preceded by appropriate current Material Safety Data Sheets, (e) the Materials conform to all documentation (including all specifications) furnished by Buyer with respect to the Materials, and (f) the Materials are (i) free from contamination or defect, (ii) merchantable, and (iii) fit and suitable for the particular purpose(s) intended by Seller and Buyer, including the processing of such Materials into Goods in accordance with this Contract.
3. WARRANTIES; FINANCIAL REPRESENTATIONS: Subject to (a) Buyer’s fulfillment of its obligations under the Contract (including, without limitation, under Section 2 of these Terms and Conditions of Sale), (b) the quality of the Materials provided to Seller, and (c) as applicable, tolerances and variations of Goods described in Section 4 of these Terms and Conditions of Sale, Seller warrants only that the Services will be performed in a manner consistent with customary practice in its industry.  SELLER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES AND GUARANTIES, EXPRESS OR IMPLIED, OR ARISING UNDER LAW OR EQUITY OR CUSTOM OF TRADE, WITH RESPECT TO THE SERVICES OR THE GOODS, INCLUDING WARRANTY OF MERCHANTABILITY, WARRANTY OF PERFORMANCE AND WARRANTY THAT THE GOODS ARE FIT FOR ANY PARTICULAR PURPOSE (AND BUYER ACKNOWLEDGES SUCH DISCLAIMER).  Buyer represents and warrants that all credit or financial information previously or hereafter submitted to Seller by or on behalf of Buyer is true, correct and complete as of the time of its submission.  Buyer will promptly provide to Seller such additional financial information as Seller may request from time to time related to Buyer’s creditworthiness and financial condition.
4. VARIATIONS: All Goods shall be subject to tolerances and variations consistent with usual trade practices regarding dimensions, straightness, section, composition and mechanical properties and normal variations in surface and internal conditions and quality, and also shall be subject to deviations from tolerances and variations consistent with practical testing and inspection methods.
5. CLAIMS; LIMITATION OF SELLER’S LIABILITY; TIME LIMIT FOR BRINGING ACTION: Any claim of non-conformity with respect to the Services or the Goods or their shipment or delivery is waived, unless made in writing by Buyer to Seller, specifically stating the details of such non-conformity, within a reasonable time not exceeding thirty (30) days after Buyer receives the Goods.  If Seller receives timely notice from Buyer, Seller shall replace such non-conforming Goods with conforming Goods, repair the non-conforming Goods or return the processing fee with respect to such non-conforming Goods, at Seller’s sole discretion.  In the event that Seller replaces such non-conforming Goods or returns such processing fee, as applicable, (a) either Seller or Buyer shall sell such non-conforming Goods for Buyer’s account and benefit (provided that if Buyer sells such non-conforming Goods, Buyer does so promptly and on an arm’s length basis and uses its good faith efforts to maximize the sale price for such non-conforming Goods), and (b) subject to the next sentence, Seller shall pay to Buyer the amount, if any, by which the price at which Buyer bought the Materials comprising such non-conforming Goods exceeds the price at which such non-conforming Goods are sold pursuant to clause (a).  Seller’s total liability for any and all claims of Buyer shall in no event be greater than the total processing fees paid for the Services during the prior six (6)-month period of the time in question.  IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, AND BUYER WAIVES ALL SUCH CLAIMS REGARDLESS OF THE FORM THAT ANY ACTION IS BROUGHT.  Any action or proceeding by Buyer arising between the parties from any dispute, claim or controversy relating to this Contract, the claimed breach of this Contract, the Services or the Goods, must be commenced within one (1) year after the Goods are delivered by Seller.  Notwithstanding anything in this Contract to the contrary, in no event shall Buyer commence any action related to this Contract later than one (1) year after the cause of action has accrued.
6. NO OFFSET; INCREASED COSTS: Buyer shall pay for the Services in full, without any set-off, counterclaim, recoupment or other similar rights Buyer may have against Seller.  If Buyer is required under law to withhold or deduct any amount from the payment due to Seller, Buyer shall increase the sum it pays to Seller by the amount necessary for Seller to receive an amount equal to the sum it would have received if no withholdings or deductions had been made.  Any increase in Seller’s costs of performance after the date hereof resulting from increased freight rates or surcharges, additional taxes, increased insurance rates, and all other additional charges relating to the performance of Services or the loading, unloading, delivery, storage and transportation of the Materials and Goods, shall be for Buyer’s account.
7. SHIPMENT OF GOODS: Buyer’s receipt of Goods shall immediately occur when Buyer, Buyer’s bailee or other agent or designee (including any customer or supplier of Buyer) receives either actual or constructive possession of the Goods.  Constructive possession shall include, without limitation, receipt by an entity or individual pursuant to a drop ship instruction or other delivery instructions from Buyer.  Constructive possession does not require actual possession by Buyer.  All dates for performance of Services and for shipment or delivery of Goods are approximate.  The date of the bill of lading shall constitute conclusive evidence of the date of shipment.  Partial shipment and/or transshipment shall be permitted.  No non-conforming tender, or delay or failure in the shipment or delivery of any one lot shall excuse Buyer from accepting tender of any remaining installments under this Contract.  Purchase orders shall be issued (and the corresponding Materials shall be delivered) by Buyer at least seven (7) business days in advance of the desired delivery date, and are non-cancellable, irrevocable purchase obligations of Buyer.  Orders are subject to confirmation of longer lead-times.  Regardless of shipping terms or freight payment, Buyer shall bear all risk of loss or damage of Goods in transit.  The quantity of Goods delivered by Seller to Buyer, Buyer’s bailee or other agent or designee shall be measured and determined by Seller at its plant in accordance with the appropriate means or methods established in the industry.  The quantity so determined shall be deemed final and conclusive between Buyer and Seller.
8. SCRAP MATERIALS: Buyer understands and acknowledges that there will necessarily be scrap materials resulting from the Services (“Scrap Materials”).  The amount of Scrap Materials per coil of Materials provided by Buyer will equal the difference between the original weight of such coil and the weight of the Goods resulting from such coil, in each case as measured by Seller.  As Seller’s sole obligation, and Buyer’s sole right, with respect to Scrap Materials, Seller shall take title to such Scrap Materials and issue a credit to Buyer at the AMM Midwest #1 heavy melt price or at such other scrap price as may be set forth in the Contract or otherwise agreed to by Buyer and Seller.
9. EXCUSED PERFORMANCE: If the performance by Seller of its obligations under this Contract is prevented by force majeure (being an act, event or circumstance, whether or not reasonably foreseeable, which directly or indirectly affects the activities of Seller or any other person or entity connected with the performance of Services or the processing, shipment or delivery of the Goods or Materials, including, but not limited to, acts of God, flood, typhoon, earthquake, tidal wave, landslide, severe weather, fire, plague, epidemic, quarantine restriction, perils of the sea; war or threat of the same, civil commotion, blockade, arrest or restraint of government, requisition of vessel or aircraft, acts or threats of terrorism; strike, lockout, slowdown, sabotage, other labor dispute or inability to obtain necessary labor; explosion, accident, breakdown or unavailability in whole or in part of machinery, plant transportation or loading facility, contamination by radioactivity or chemical substances; governmental request, guidance, order or regulation; freight embargoes; unavailability of or delay in transportation or loading facility; curtailment, shortage or failure in the supply of fuel, electric current, other public utility, or raw material including crude oil, petroleum or petroleum products; bankruptcy, insolvency or default of the manufacturer or supplier of any goods or materials incorporated into the Goods or used in the performance of the Services; production schedules of the producing mill; boycotting of goods; substantial change of the present international monetary systems; acts of Buyer; or any other act, event or circumstance whatsoever beyond the reasonable control of Seller), then Seller shall not be liable for loss or damage, or failure or delay in performing its obligations under this Contract and may, at its sole discretion, extend the time for performance of the Services and for the shipment or delivery of the Goods or terminate unconditionally and without liability the unfulfilled portion of this Contract.
10. INFRINGEMENT: Seller shall not be liable to Buyer for any losses, liabilities, settlements, costs or expenses (including attorneys’ fees) paid or incurred by Buyer resulting from any claim that the Materials, Goods or Services or their sale infringe any intellectual property rights of any party.  If Buyer has furnished the specifications, Buyer shall indemnify and defend Seller against any and all claims, suits, losses, liabilities, settlements, costs or expenses (including attorneys’ fees) paid or incurred by Seller resulting from any such claim.
11. PAYMENT: Unless otherwise stated on the face of this Contract, payment is due thirty (30) days from the date of each invoice, without discount.
12. DEFAULT; LATE CHARGES: If any one of the following events (“Event of Default”) shall occur: (a) failure by Buyer to perform any provision of this Contract or any other agreement with Seller (except for failure to pay any amount when due) and such failure has not been cured within thirty (30) days after the date of such failure; (b) failure by Buyer to pay any amount when due (including the processing fees) under this Contract or any other agreement with Seller; (c) Buyer becomes unable to pay its debts generally as they become due or becomes insolvent; (d) insolvency, bankruptcy, liquidation or dissolution of Buyer, or the institution of such proceedings by or against Buyer; (e) appointment of a trustee, receiver, administrator or liquidator over any of Buyer’s assets or property; (f) issuance of an order for the attachment of Buyer’s assets or property; (g) general assignment by Buyer for the benefit of its creditors; (h) cancellation or reduction of trade credit insurance coverage insured for Seller against risk of Buyer’s failure or inability to pay any amount payable by Buyer to Seller under this Contract; (i) any material change in Buyer’s financial condition or business that may have, in Seller’s opinion, an adverse effect on Buyer’s ability to perform under this Contract; or (j) any direct or indirect change in control of Buyer; then Seller may, at its sole discretion, in addition to, and without prejudice to the other rights and remedies that may be available to Seller under this Contract, at law or in equity, (1) forthwith terminate this Contract in whole or in part by notice in writing to Buyer, (2) delay or suspend performance of Services and/or shipment or delivery of the Goods, stop the Goods in transit, hold the Goods at the risk of Buyer, or change terms of sale (including, without limitation, requiring cash-in-advance or cash before performance of the Services); (3) forthwith demand immediate payment of all sums payable by Buyer under this Contract or any other agreement with Buyer, whereupon the same shall become immediately due and payable; and/or (4) pursuant to Seller’s security interest set forth in Section 21, forthwith exercise any rights of a secured party after default under a security agreement (with Buyer paying all costs and expenses, including attorneys’ fees, incurred by Seller in enforcing such rights), including the right to resell the Goods or Materials and all other rights available at law (including under the Illinois Uniform Commercial Code (810 ILCS 5)).  Buyer shall reimburse Seller for all losses or damages arising directly or indirectly from any of these events.  Without limiting the generality of Seller’s remedies and rights set forth above, if any portion of the processing fees is not paid in full when due, Buyer shall pay a late charge on the amount unpaid for each full or partial month from the due date until paid in full at the rate per annum equal to six percent (6%) above the prime commercial lending rate announced from time to time by Chase Bank (or its successor) at its principal New York City office, or at the highest rate permitted by applicable law, whichever is lower.  If any Event of Default occurs, Buyer shall also be liable to Seller for all costs of collection, including attorneys’ fees and disbursements.
13. INDEMNITY: Buyer shall indemnify Seller, its successors, assigns, and customers (whether direct or indirect) against any and all losses, damages and expenses (including attorneys’ fees and other costs of defending any action) that they, or any of them, may sustain or incur as a result of any claim of negligence, breach of warranty, personal injury or death, damage to the environment, patent or trademark infringement, product liability, strict liability in tort, or based on any other theory of law or equity in connection with the Materials furnished by Buyer under this Contract (including, without limitation, any claim by a third party relating to any right, title or interest in the Materials or any defect in, or health or safety issue caused by the Materials), or as a result of any claim that the Materials furnished by Buyer fail to conform to or comply with any federal, state, local or foreign laws, regulations or standards.  Such indemnity shall apply notwithstanding the negligence of Seller, its employees, representatives or agents.
14. TERMINATION: In addition to any other rights of Seller to terminate this Contract, Seller may immediately terminate all or any part of this Contract, at any time without cause, and without any liability to Buyer, by notifying Buyer in writing at least seven (7) days prior to the termination.
15. ENTIRE AGREEMENT; WAIVER; SEVERABILITY: This Contract is the final, complete, and exclusive expression of the parties’ agreement relating to the subject matter of this Contract, and supersedes any prior agreement or understanding between them.  No amendment or modification of any of the provisions of this Contract shall be effective unless made in writing and signed by both parties.  No claim or right of Seller under this Contract shall be deemed to be waived in whole or in part unless the waiver of such claim or right is in a writing signed by Seller.  If any term(s) of this Contract is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, then, at Seller’s option, either (i) such term(s) shall be deemed reformed or deleted, but only to the extent necessary to comply with such statute, regulation, ordinance, order or rule, and the remaining provisions of this Contract shall remain in full force and effect, or (ii) this Contract shall be terminated without any liability of Seller to Buyer.
16. NO ASSIGNMENT: Buyer shall not assign its rights or delegate its duties under this Contract.  Any such attempted assignment or delegation shall be null and void.
17. GOVERNING LAW: This Contract shall be governed by and construed in accordance with the laws of the State of Illinois, without regard to its conflicts of laws principles and excluding the United Nations Convention on Contracts for the International Sales of Goods.
18. DISPUTE RESOLUTION: The parties hereby (i) irrevocably and unconditionally submit to the non-exclusive jurisdiction of the state and federal courts located in Cook County, Illinois with respect to the adjudication of any suit, action or proceeding arising out of or relating to this Contract and (ii) irrevocably and unconditionally waive any objection to the laying of venue in any such court and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.  EACH PARTY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE RIGHT TO A TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING OF ANY KIND OR NATURE IN ANY COURT OR FORUM TO WHICH THEY MAY BOTH BE PARTIES, ARISING OUT OF, RELATING TO OR IN CONNECTION WITH THIS CONTRACT, THE BREACH OF THIS CONTRACT, OR WITH RESPECT TO ANY MATTER OR DISPUTE BETWEEN THEM.  In the alternative, at Seller’s option, any dispute, controversy or claim arising out of or relating to this Contract, including the formation, interpretation, breach or termination of this Contract, including whether the claims asserted are arbitrable, will be referred to and finally determined by arbitration in accordance with the JAMS International Arbitration Rules.  The tribunal will consist of three arbitrators.  The place of arbitration will be Chicago, Illinois.  The language to be used in the arbitral proceedings will be English.  Judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof.  Buyer and Seller will bear equally the costs and expenses of JAMS and the arbitrators.
19. DESIGNS AND TOOLS: Any design work performed by Seller, and any dies, molds, jigs or other tools that Seller manufactures or acquires, in connection with its performance under this Contract shall be and remain the sole property of Seller, notwithstanding any charges to Buyer therefor.  Any such charges convey to Buyer the right to have the designs, dies, molds, jigs and/or other tools used by Seller for performance under this Contract, but do not convey title, right of possession or any other right.
20. COMPLIANCE WITH LAWS: Buyer shall conduct its business in strict compliance with all laws and regulations.  Buyer shall timely obtain, effectuate and maintain in force any required permit, license, exemption, filing, registration and other authorization in respect of the use, handling, transportation, storage, import, sale or disposal of the Materials and the Goods, required under any applicable law or regulation.  Buyer shall not export or re-export, directly or indirectly, the Goods without obtaining any required license or approval.
21. SECURITY INTEREST: To secure Buyer’s obligations to Seller under this Contract or any other agreement, Buyer hereby grants to Seller a security interest in all of the Materials (including all work-in-process) and the Goods under this Contract, whether now owned or hereafter acquired, and all products and proceeds thereof.  Seller may file any financing statements and send any notices necessary or appropriate to perfect or protect such security interest.
22. ELECTRONIC SIGNATURES: This Contract and any related documents may be issued, delivered, or executed by facsimile or email, which shall constitute an original for all purposes.  Buyer shall comply with any method of electronic communication specified by Seller, including requirements for electronic funds transfer or order transmission.