JADE-STERLING STEEL CO., INC.

TERMS AND CONDITIONS OF PURCHASE

ANY AND ALL PURCHASES MADE BY JADE-STERLING STEEL CO., INC., AN OHIO CORPORATION, AND/OR ITS AFFILIATED ENTITIES (COLLECTIVELY, “PURCHASER” OR “JADE-STERLING” OR “COMPANY”), ARE SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS OF PURCHASE (“TERMS AND CONDITIONS”).  THESE TERMS AND CONDITIONS TAKE ABSOLUTE PRECEDENCE AND PREVALENCE OVER ANY TERMS AND CONDITIONS OF THE SELLER.  SELLER ACKNOWLEDGES THAT SELLER HAS READ AND UNDERSTANDS THESE TERMS AND CONDITIONS AND AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS.  IN THE EVENT OF ANY INCONSISTENCIES BETWEEN ANY PURCHASE ORDER, PURCHASE AGREEMENT, INVOICE, CREDIT APPLICATION OR THE LIKE, OR ANY DOCUMENT ANCILLARY TO THE FOREGOING (COLLECTIVELY, THE “ORDER”), AND THESE TERMS AND CONDITIONS, THESE TERMS AND CONDITIONS SHALL CONTROL.  JADE-STERLING AND SELLER EXPRESSLY AGREE THAT JADE-STERLING MAY MODIFY THESE TERMS AND CONDITIONS FROM TIME TO TIME, AND SUCH MODIFICATIONS SHALL BE BINDING UPON THE SELLER AS OF THE DATE OF SUCH MODIFICATIONS.   

1. Acceptance Of Terms And Conditions.  Jade-Sterling hereby orders from the vendor (“Seller”) identified on the Order the goods (“Goods”) and/or services (“Services”) specified in the Order, subject to and upon these Terms and Conditions.  Jade-Sterling shall not be bound by any proposed contractual provisions not appearing in these Terms and Conditions.  THE EARLIER OF EXECUTION OF THE ORDER (AS SET FORTH IN SECTION 2 BELOW) OR SHIPMENT BY SELLER OF THE GOODS AND/OR PROVISION OF THE SERVICES ORDERED SHALL CONSTITUTE IRREVOCABLE ACCEPTANCE OF AND AGREEMENT TO THESE TERMS AND CONDITIONS AND AN IRREVOCABLE WAIVER BY SELLER OF ALL TERMS AND CONDITIONS CONTAINED IN ANY ACCEPTANCE FORM OF ANY OTHER COMMUNICATIONS WHICH ARE INCONSISTENT WITH THE TERMS AND CONDITIONS SET FORTH ON THE ORDER UNLESS SPECIFICALLY AGREED TO IN WRITING BY JADE-STERLING.

2. Contract Formation. Jade-Sterling shall not be bound by the Order until Seller executes and returns to Jade-Sterling the acknowledgment copy of the Order. The Order expressly limits acceptance to terms stated herein, and any additional or different terms proposed by the Seller are rejected unless expressly assented to in writing. No contract shall exist except as hereinabove provided.  By acceptance of the Order, whether expressed or deemed, as provided herein, Seller waives the application of any legal provisions that would govern these Terms and Conditions or the Order or modify the interpretation of the same, including without limitation to the “knock-out rule,” as well as any other similar doctrine under the laws of any relevant jurisdiction, such as the United States Uniform Commercial Code, Mexican Commercial Code, or Federal Civil Code, or that of any political subdivision; therefore, such legal provisions and doctrines shall not apply if interpretation of these Terms and Conditions or the Order is required under law.

3. Price. The pricing set forth on the Order is the firm price and Jade-Sterling shall not be liable for my price increases of any nature. All prices are F.O.B. destination unless otherwise specified. In the case of open orders, no Goods shall be charged a price higher than Jade-Sterling's last purchase of said Goods from Seller unless Seller has provided written notice of such price increase to Jade-Sterling at least ten (10) days prior to shipment.  Unless otherwise specified in the Order or otherwise agreed in writing by Jade-Sterling and Seller, payment by Jade-Sterling shall be made in US Dollars and according to discount terms offered by Seller or, if not offered, within ninety (90) days following the later date of Seller’s invoices or receipt of the Goods and/or Services hereunder.  Jade-Sterling shall be entitled to set off, deduct, or recoup any credit, claims, or refunds to which Jade-Sterling is entitled under any Order, invoice, contract, or transaction between Jade-Sterling and Seller, against any amounts due or arising under the Order.

4. Import Duty and Taxes. The prices set forth on the Order and any prior quotes by Seller shall include any United States duties (regular or special), tariffs and taxes which are payable by Jade-Sterling will not be liable for any extra charges because of any additional or new import duties or because of a recalculation of the same.

5. Delivery and Materials. Promptness of delivery is of the essence of the Order. Deliveries are to be made both in quantities and at a time which is specified on the Order by Jade-Sterling. Jade-Sterling will have no liability for payment for material or items which are in excess of quantities specified in the Order or any schedules furnished to Seller, nor shall Seller manufacture the materials or items in advance of the Order or schedules notwithstanding the quantities specified in any Order outstanding for the material or items, nor shall Jade-Sterling be liable for Services which go beyond the face of the Order. In the event of any late delivery, Jade-Sterling may, at its option, cancel the Order, partially cancel the Order er, vary delivery terms thereunder, or purchase substitute Goods or Services elsewhere. Any losses sustained or costs incurred by Jade-Sterling by reason of late delivery of Goods or rendering of Services shall be paid to Jade-Sterling by Seller. All items shall be packed by Seller in suitable containers for protection of the items. No charge shall be made by Seller for boxing, packaging, or weighing unless otherwise provided for in the Order. Any provisions herein for delivery of Goods or the rendering of Services by installment shall not be construed as making the obligations of Seller severable.

6. Warranties and Indemnification. By accepting the Order or by delivering to Jade-Sterling the Goods ordered, or by rendering for Jade-Sterling any of the Services ordered herein, Seller hereby warrants that the Goods and Services: (i) will be in full conformity with Jade-Sterling's specifications, drawing samples and data or other description furnished or specified by Jade-Sterling; (ii) will be of the highest quality and free from defects in materials and workmanship (including defects in design); (iii) will be merchantable; (iv) will be fit and sufficient for the use and purposes intended by Jade-Sterling; (v) will be free of all liens and encumbrances; (vi) will comply with all applicable laws and governmental regulations; (vi) are not the subject of, involved in, or related to any pending litigation or existing claim in any manner, nor would any of the foregoing affect any party’s rights to use or sell such goods and/or services; and (viii) either alone or in combination with other material, will not infringe or contribute to the infringement of any patents, trademarks or copyrights in the United States or any foreign country or result in a violation of the laws relating to unfair competition or a claim arising thereunder. Seller agrees to indemnify and hold Jade-Sterling, its affiliated entities, and its customers harmless from any and all liabilities, inducing all costs, losses, expenses and attorney’s fees, which may be incurred by Jade-Sterling for damages or injuries arising out of any defect in material or design delivered or furnished hereunder, death or injury to any person, damage to any property or any other damage or loss including economic loss by whomsoever suffered resulting or claimed to result, in whole or in part, from any defect in or condition of the goods, including improper manufacture or the failure of any Goods and/or Services to comply with any express or implied warranties of Seller or any of Jade-Sterling’s specifications contained in (or made part of) the Order, or any breach of Seller's warranties. By accepting the Order, Seller agrees to defend at Seller's own expense all suits, actions, or proceeding in which Jade-Sterling, any of Jade-Sterling's distributors, dealers, or customers, or any users of any of Jade-Sterling's products are made defendants, for actual or alleged infringement of any U.S. or foreign patents, trademarks or copyrights or for actual or alleged violation of the unfair competition laws or any claim arising hereunder resulting from the alleged violation of the unfair competition laws or any claim arising thereunder resulting from the use or sale of the Goods purchased hereunder, either alone or in combination with other materials, and further agrees to pay and discharge any and all judgments or decrees which may be rendered in any such suit, action or proceedings against such defendants therein. Seller agrees that these warranties shall survive acceptance of the Goods. Said warranties shall be construed as conditions as well as warranties, shall run to both Jade-Sterling and its customers, and shall be in addition to any warranties of additional scope given to Jade-Sterling by Seller.  In addition to the other remedies available to Jade-Sterling for non-conforming or defective Goods, Jade-Sterling may require Seller to participate at Seller’s expense in any recall or other field service action conducted by Jade-Sterling or its customers based in whole or in part on non-conforming or defective Goods, including reimbursing Jade-Sterling for administrative, labor, and other expenses incurred by Jade-Sterling.  Jade-Sterling and Seller will jointly investigate the root cause of any non-conforming or defective Goods and decide the reasonable amount of Seller’s reimbursement costs to Jade-Sterling after reviewing the possible effect of non-conforming or defective Goods provided by other suppliers and the aggregate amount of Jade-Sterling’s purchases of Goods from Seller.  Seller will reimburse Jade-Sterling for all direct, indirect, special, incidental, and consequential damages (including professional fees) resulting from non-conforming or defective Goods, breach of a contract, a default, or other acts or omissions of Seller, including amounts charged by Jade-Sterling’s customers and costs, expenses, and losses incurred directly or indirectly by Jade-Sterling or its customers in conducting recall campaigns or other field service actions (including administrative costs, parts and labor costs, the cost of any extended warranties, and any fines or penalties).

7. Risk of Losses. Seller shall bear the full risk of loss of any Goods purchased pursuant hereto until Goods are delivered to and received by Jade-Sterling. Seller specifically bears the risk of loss of any Goods delivered to a common carrier whether or not Seller is responsible to pay for transportation.

8. Complete Agreement. The Order, together with these Terms and Conditions, constitutes the entire and only agreement between the parties hereto and any representation, affirmation of fact and course of prior affirmation of fact and course of prior dealings, promise or condition, in connection therewith, if not incorporated herein, shall not be binding upon Jade-Sterling. No waiver or alteration or modification of any of the provisions hereof. All specifications, drawings and data submitted to Seller with the Order are hereby incorporated herein and made a part hereof.

9. Cancellation. Jade-Sterling may, at any time, cancel all or any part of the work covered by this order, and terminate the Order in whole or in part, even though Seller is not then in default. Seller will, in accordance with notice of cancellation, terminate work under any Orders or subcontracts outstanding, place no further Orders or subcontracts, and take all steps necessary to protect the material or property in Seller’s possession in which Jade-Sterling has acquired or may acquire an interest. In the event of cancellation, Jade-Sterling's obligation, if any, shall be limited to reasonable compensation for materials completed or services furnished in accordance with the terms of the Order and not previously paid for. In no event will Jade-Sterling be responsible for materials which are in excess of quantities specified in the schedules furnished nor for items manufactured in advance of the schedules, notwithstanding the quantities specified in any Orders outstanding for the materials, not for services which go beyond the face of the Order. If, however, cancellation arises out of Seller's breach of any condition hereof, including breach of warranty, or by Seller's delay, Seller shall not be entitled to any claim for compensation, and Jade-Sterling shall have against Seller all remedies provided by law and equity.

10. Inspection. All Goods or equipment purchased hereunder are subject to inspection and approval at Jade-Sterling's destination. Jade-Sterling reserves the right to reject and refuse acceptance of Goods which are not in accordance with Jade-Sterling's instructions, specifications, drawings or data or Seller’s warranties. Jade-Sterling will charge Seller for the cost of inspecting Goods rejected. Goods not accepted will be held for Seller’s instruction at Seller's risk and if Seller so directs, will be returned at Seller's expense. No Goods returned hereunder shall be replaced without a new Order. Payment for any Goods hereunder shall not be deemed an acceptance thereof.

11. Insolvency. Jade-Sterling shall have the unrestricted right to cancel any Order in the event of the happening of any of the following or any other comparable events, in which event Jade-Sterling mall have no liability for lost or anticipated profits of Seller; (i) Seller's insolvency or (commission of an act of bankruptcy); (ii) commencement of proceedings by, for or against Seller under any law relating to bankruptcy or the relief of debtors; (iii) the appointment of a receiver or trustee for Seller; (iv) the execution by Seller of an assignment for the benefit of the debtors; and (v) the determination by Jade-Sterling, in its sole judgment, that Seller's financial condition is such as to endanger its performance hereunder.

12. Nondisclosure. Seller warrants and agrees that all designs, constructions, arrangements, disclosures and devices shown or described in the Order, and all drawings, specifications and documents forming a part thereof by reference or otherwise are the property of Jade-Sterling and are submitted in confidence upon the understanding, agreement and warranty by Seller that such designs, constructions, arrangements, disclosures and devices shall not be disclosed or utilized in whole or in part by Seller or on behalf of any other person, firm or corporation without the prior written consent of Jade-Sterling.

13. Nonassignment. The terms and conditions contained herein have been issued in reliance upon Seller's reputation and good standing. Therefore, under no circumstances may Seller make any assignment of the Order or these Terms and Conditions or of its rights thereunder and hereunder without the prior written consent of Jade-Sterling. Payment to Seller absent notice of assignment shall continue full and complete discharge of Jade-Sterling's payment obligations hereunder. Payment to an assignee of Seller's rights hereunder shall be subject to setoff or recoupment for any present or future claim or claims which Jade-Sterling may have against Seller. Jade-Sterling reserves the right to make direct settlements and/or adjustments in price with Seller under the terms of the Order, notwithstanding any assignment of claims by Seller.

14. Nonwaiver. No waiver or failure to enforce compliance with the terms hereof by Jade-Sterling shall constitute a waiver of Jade-Sterling's right to insist upon strict compliance with the terms of the Order or these Terms and Conditions thereafter

15. Governing Law. This Purchase Order and any dispute which may arise from the Order or these Terms and Conditions or any goods purchased hereunder shall be governed by the laws of the State of Ohio.

16. Choice of Forum. Any litigation arising hereunder shall be brought only in a court of general jurisdiction located in Summit County, Ohio.

17. Headings. The headings used herein are solely for the convenience of the parties and shall have no force or effect upon the interpretation of any provision hereof.

18. Export Regulations.  Seller acknowledges that certain Services and/or Goods sold by Seller hereunder and any documentation and other technology of Seller may be subject to application export control and sanction laws, regulations, and orders.  Seller certifies, represents, and warrants that it is in compliance and shall take all necessary acts to remain in compliance with all applicable export and re-export control laws and regulations, including, without limitation, the Export Administration Regulations maintained by the U.S. Department of Commerce, trade and economic sanctions and regulations maintained by OFAC (defined below), and the International Traffic in Arms Regulations maintained by the U.S. Department of State.  Seller hereby agrees to defend, indemnify and hold Jade-Sterling harmless from and against any and all claims, damages, losses, risks, liabilities and expenses (including attorney’s fees and costs) arising from or related to any breach of the foregoing certification.

19. FCPA; Anti-Bribery.  In carrying out its responsibilities hereunder, Seller shall comply with all applicable anti-bribery laws including, but not limited to, the U.S. Foreign Corrupt Practices Act, as revised (“FCPA”), and the Organization for Economic Cooperation and Development Anti-Bribery Convention.  Seller understands that the FCPA generally prohibits the promise, payment or giving of anything of value either directly or indirectly to any government official for the purpose of obtaining or retaining business or any improper advantage. For purposes of this section, “government official” means any official, officer, representative, or employee of any non-U.S. government department, agency or instrumentality (including any government-owned or controlled commercial enterprise), or any official of a public international organization or political party or candidate for political office.  Seller represents and warrants that, in the performance of the Order or these Terms and Conditions and in connection with its provision and/or sale of Services and/or Goods, (i) neither it nor any of its representatives are governmental employees or officials or candidates for political office and Seller will advise Jade-Sterling of any change in such representation; (ii) Seller and its representatives have not and will not make, offer, or agree to offer anything of value to any government official, political party, or candidate for office; (iii) Seller will comply with all provisions of the FCPA and the regulations thereunder as amended from time to time; and (iv) Seller agrees to indemnify, defend, and hold Jade-Sterling harmless for damages and expenses resulting from a violation of the foregoing by Seller or its representatives.

20. OFAC.  Pursuant to United States Presidential Executive Order 13224 (“Executive Order”), Seller may be required to ensure that it does not transact business with persons or entities determined to have committed, or to pose a risk of committing or supporting, terrorist acts and those identified on the list of Specially Designated Nationals and Blocked Persons (“List”) generated by the Office of Foreign Assets Control (“OFAC”) of the U.S. Department of the Treasury. The names or aliases of these persons or entities (“Blocked Persons”) are updated from time to time.  Seller certifies, represents and warrants to Purchaser that: (a) it is not acting, directly or indirectly, for or on behalf of any person, group, entity or nation named by any Executive Order of the United States Treasury Department as a terrorist, “Specially Designated National and Blocked Person” or any other banned or blocked person, entity, nation or transaction pursuant to any Law that is enforced or administered by the Office of Foreign Assets Control; and (b) it is not engaged in this transaction, directly or indirectly on behalf of, or instigating or facilitating this transaction, directly or indirectly on behalf of, any such person, group, entity or nation. Seller hereby agrees to defend, indemnify and hold Purchaser harmless from and against any and all claims, damages, losses, risks, liabilities and expenses (including attorney’s fees and costs) arising from or related to any breach of the foregoing certification.

21. Product Liability Insurance.   Seller shall at all times maintain product liability insurance and vendor’s insurance of not less than $1,000,000 per occurrence and $5,000,000 in the aggregate and shall name Jade-Sterling as an additional insured thereunder.  Seller shall provide Jade-Sterling with a copy of a certificate evidencing that such product liability insurance coverage is in full force and effect as of the date of this Purchase Order.  Seller further agrees that not less than thirty (30) days prior to the expiration of any such product liability insurance or vendor insurance policy, Seller will deliver to Jade-Sterling evidence of a renewal or a new policy to take the place of the policies expiring.