Steel Tech Enterprises LLC

General Terms and Conditions of Purchase

These terms and conditions of sale (these “Terms”) are the only terms that govern the sale of goods (“Goods”) and services (“Services”) provided by Seller to Steel Tech Enterprises LLC (herein after referred to as “STE”) d/b/a Steel Tech Williamsport/TMF Center, including its wholly owned subsidiary East Iowa Machine Company, LLC (d/b/a EIMCo, Hawkeye Metal Spinning, LLC and JBT Machining, LLC), STE and Seller are collectively referred to herein as the “Parties” and individually as “Party.”

1. Applicability and Acceptance.

• Entire Agreement. The accompanying purchase order(s) (the “Purchase Order”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral.
• Each Purchase Order is an offer to Seller for the purchase of the Goods and Services enumerated therein. Seller’s acceptance of any Purchase Order constitutes acceptance of the Terms set forth in this Agreement. Seller accepts a Purchase Order and these Terms and forms a contract by: (1) commencing work under the Purchase Order; (2) accepting the Purchase Order in writing; (3) the passage of five (5) days without objection from Seller; or (4) any other conduct that recognizes the existence of a contract with respect to the subject matter of the Purchase Order. This Agreement supersedes any of Seller’s general terms and conditions of sale regardless of whether or when Seller has submitted an order confirmation, invoice, or additional terms. STE expressly rejects Seller’s general terms and conditions of sale, and acceptance of Goods or Services does not constitute acceptance of any of Seller’s terms and conditions or serve to modify or amend these Terms. ANY TERMS AND CONDITIONS CONTAINED IN ANY SELLER DOCUMENT, INCLUDING BUT NOT LIMITED TO ANY DIFFERENT, INCONSISENT, CONFLICTING, SUPPLEMENTAL, OR ADDITIONAL TERMS OR CODNITIONS, SHALL NOT CONSTITUTE A PART OF THE CONTRACT OF SALE RESULTING AND ARE HEREBY REJECTED UNLESS SUCH TERMS AND CONDITIONS ARE SPECIFICALLY AGREED TO IN A WRITING SIGNED BY AN AUTHORIZED REPRESENTATIVE OF STE.

2. Delivery, Title, and Risk of Loss.

• Time is of the essence. Seller shall deliver the Goods in the quantities and on the date(s) specified in the Purchase Order or as otherwise agreed in writing by the parties (the “Delivery Date”). STE has the right to return any Goods delivered prior to the Delivery Date at Seller’s expense and Seller shall redeliver such Goods on the Delivery Date. If Seller fails to have Goods ready for shipment in time to meet STE’s Delivery Date(s), Seller will be responsible for any additional costs of premium or expedited transportation of Goods. STE will have the right to either arrange for expedited shipment of the Goods or require Seller to ship the Goods, and Seller will pay or reimburse STE for the entire cost of such expedited shipment. Partial shipments will not be accepted unless authorized in advance.
• Seller shall deliver all Goods to the address specified in the Purchase Order (the “Delivery Point”) during STE’s normal business hours or as otherwise instructed by STE. Seller shall pack all Goods for shipment according to STE’s instructions or, if there are no instructions, per industry standard and in a manner sufficient to ensure that the Goods are delivered in undamaged condition. Seller shall label or tag each package according to STE’s instructions. Seller shall provide papers with each shipment showing the Purchase Order number, STE’s part number, Seller’s part number (where applicable), number of pieces in the shipment, number of containers in the shipment, a description of the material(s), Seller’s name and number, and the bill of lading number. Seller must provide STE prior written notice if it requires STE to return any packaging material. Any return of such packaging material shall be made at Seller’s risk of loss and expense.
• Title and risk of loss pass to STE upon delivery of Goods at the Delivery Point- to be defined as: after the Goods are unpackaged by Seller, but before the Goods are unloaded by STE. All Goods and Services are subject to STE’s inspection. Receipt of, payment for, or inspection of, Goods or Services will not constitute acceptance of the Goods or Services or a waiver of any breach of warranty. Seller hereby waives the objection of delayed notification of defects.
• STE may, prior to shipment and by notice to Seller, modify the time and place of delivery and/or method of transportation in any Purchase Order. If any such modification results in an increase or decrease in the cost or time required for performance, the Parties shall make an equitable adjustment.

3. Price.

The price of the Goods and Services is the price stated in the Purchase Order (the “ Purchase Price”). Unless otherwise specified in the Purchase Order, the Purchase Price includes all packaging, transportation costs to the Delivery Point, insurance, tariffs, duties, countervailing fees, or similar government imposed charges, including, but not limited to, all sales, use or excise taxes. No increase in the Purchase Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of STE.

4. Payment Terms.

• Seller shall invoice charges for all Goods at the time of actual shipment and for all Services at the time of acceptance of the Services. All undisputed invoices shall be due and payable within one hundred twenty (120) days after the date of delivery of the Goods or by such other date as set forth in the applicable Purchase Order. In the event that STE disputes any Seller invoice as being inaccurate or incorrect, STE will provide Seller with notice of that dispute, along with a description of the reason(s) why STE believes the invoice is inaccurate or incorrect, and thereafter, the Parties will negotiate in good faith to resolve the invoice dispute. STE shall have no obligation to make payment any a disputed invoice until such dispute is resolved. Seller shall continue performing its obligations under this Agreement notwithstanding any such dispute.
• Without prejudice to any other right or remedy it may have, STE reserves the right to set off at any time any amount owing to it by Seller against any amount payable by STE to Seller or its affiliated companies under this Agreement or any other agreement between STE and Seller.

5. Warranties.

• Seller warrants to STE that for the Warranty Period (as defined below) from the Delivery Date, all Goods will: (i) be free from any defects in workmanship, material, and design; (ii) conform to applicable specifications, drawings, designs, samples, and other requirements; (iii) be fit for their intended purpose and operate as intended; (iv) be merchantable; (v) consist of all new materials and, at the time of Delivery, be of good and marketable title, free of all liens, claims, and encumbrances; (vi) not infringe or misappropriate any third party’s patent or other intellectual property rights; (vii) be manufactured, packaged, labeled, stored, loaded for shipment, and shipped in strict conformity with all applicable laws relating thereto; and (viii) contain no counterfeit parts or components.
• Warranty Period means the longest of (i) five (5) years from the date of delivery of the Goods to STE; (ii) the warranty period provided by applicable law; or (iii) the warranty period provided by STE to its customers or end users for the Goods (or any STE products in which the Goods are contained).
• These warranties survive any delivery, inspection, acceptance or payment of or for the Goods by STE.
• Seller warrants to STE that it shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with best industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.
• The warranties set forth in this Section 4 are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of STE’s discovery of the noncompliance of the Goods or Services with the foregoing warranties.

6. Remedies.

• In addition to any other rights specifically provided elsewhere in the Agreement, if STE reasonably determines that the Goods or Services do not conform to the Agreement, STE may: (i) reject the non-conforming or defective Goods or Services; (ii) require Seller, at Seller’s risk and expense (including applicable shipping, labor, and materials costs), to either repair or replace the nonconforming Goods or Services; (iii) require Seller to implement at Seller’s expense, containment, inspection, sorting, and other quality assurance procedures; and/or (iv) indemnify STE for any costs or penalties levied by its customers. If, after reasonable notice, Seller fails to promptly repair or replace nonconforming or defective Goods or Services, STE may repair or replace the nonconforming or defective Goods or Services and charge all related costs to Seller without voiding the warranties in this Agreement and without STE waiving any other rights or remedies.
• Notwithstanding the expiration of the warranty period set forth above, STE, its customer, and/or the manufacturer of the finished product on which the Goods are installed may voluntarily or pursuant to a government mandate make an offer to owners of such finished product to remediate a defect that relates to safety or the failure of the finished product to comply with any applicable law, safety standard, or guideline (a “Recall”). Seller will be liable for losses associated with the Recall to the extent the Recall is based upon a reasonable determination that the Goods fail to conform to the warranties set forth in this Agreement.

7. Indemnification.

Seller shall defend, indemnify and hold harmless STE, along with STE’s employees, officers, directors, shareholders, contractors, agents, subsidiaries, parents, affiliates, assigns, and its customers (“Indemnitees”) from and against all claims, liabilities, costs, damages, demands, expenses, fees (including but not limited to reasonable attorneys’ fees which fees shall include hourly charges of in-house legal staff at rates of comparable experienced counsel in the same geographic region, “Legal Fees”), judgments and related costs for any personal injuries, including death, or property loss or damage, arising directly or indirectly, relating to, or in any manner connected with (a) any breach (alleged or otherwise) or default by or on behalf of Seller of any of its obligations under this Agreement (including without limitation its representations and warranties); (b) any claim or allegation against any Indemnitees resulting from or arising out of the negligent, reckless or willful conduct of Seller, its employees, suppliers, subcontractors, agents or representatives; (c) Seller or its employees, suppliers, subcontractors, agents or representatives performance of the Purchase Order hereunder; and/or (d) from any allegation that the Goods or the Services directly or indirectly violate or infringe any patent, trade secret, copyright, trademark or other intellectual property or proprietary right by any party (including third parties), or misappropriate any confidential information.

If the Services, Goods, or any part thereof, is held to constitute infringement or the sale or use of the Services or Goods is enjoined, regardless of whether such determination constitutes a final judgment, Seller shall, at its expense and at STE’s option, either procure for STE the right to sell and use the affected Goods or Services; replace same with substantially equal but non-infringing Goods or Services; or remove said Goods or Services and refund the Purchase Price.

8. Damages.

STE may, at its election, recover any and all damages (including direct, indirect, incidental, and consequential damages), costs (including attorneys’ and other professionals’ fees and costs), expenses and losses incurred as a result of any breach of this Agreement. STE’s liability to Seller shall not exceed the Purchase Price of the applicable Purchase Order.

9. Environment and Sustainability.

Seller represents and warrants that it has and will continue to comply with all applicable environmental laws, regulations, ordinances, and industry standards. Upon request, Seller shall provide information related to the environmental impact of any Goods (or any materials used therein) including but not limited to greenhouse gas emissions, waste generation, recycled content, amounts of regulated chemicals in a Good, and disposal information. Seller agrees to respond fully and promptly to STE’s environmental due diligence requests or any similar Environmental Social Governance (“ESG”) inquiries. Seller agrees to notify STE promptly of any changes to its production or procurement processes that may alter Seller’s environmental impact.

10. Inspection and Audit.

STE has the right to inspect and test the Goods at any time before delivery and may enter Seller’s facility to inspect the facility, Goods, materials, and any of Seller’s property related to the Purchase Order. Seller’s inspection of Goods, regardless of when occurred, does not constitute acceptance of any work-in-process or finished Goods. Nothing herein releases Seller from the obligation of testing, inspection, and quality control. Upon reasonable notice to Seller, either STE or its direct or indirect customers may conduct a routine audit at Seller’s production facilities for the purposes of quality, cost, or delivery verification. Seller will ensure that the terms of its contracts with its subcontractors provide STE and its customers with all of the rights specified in this section.

11. Compliance with Law.

Seller shall be solely responsible for compliance with all applicable laws, regulations, ordinances, and industry standards regarding the operation of its business, this Agreement, and Seller’s performance of its obligations hereunder. Seller shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Seller shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Seller. Seller assumes all responsibility for shipments of Goods requiring any government import clearance. STE may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods. Seller shall notify STE of any relevant California Prop 65 warnings even if not supplied in the State of California.

12. U.S. Federal Government Contract Requirements.

STE is an equal opportunity employer and federal contractor or subcontractor. Consequently, the Parties agree that, as applicable, they will abide by the requirements of 41 CFR 60-1.4(a), 41 CFR 60-300.5(a) and 41 CFR 60-741.5(a) and that these laws are incorporated herein by reference. These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. These regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability. The Parties also agree that, as applicable, they will abide by the requirements of Executive Order 13496 (29 CFR Part 471, Appendix A to Subpart A), relating to the notice of employee rights under federal labor laws.

 

13. Termination.

In addition to any remedies that may be provided under these Terms, STE may immediately terminate this Agreement and/or any Purchase Order by giving written notice to Supplier under the following circumstances: (a) if Seller repudiates or threatens to repudiate, any of its obligations under this Agreement; (b) if Seller fails to, or threatens not to, timely deliver Goods conforming to the requirements of, and otherwise in accordance with, the terms and conditions of this Agreement; or (c) if Seller fails to provide STE, within a commercially reasonable time after STE’s request (but in no case exceeding ten (10) days after such request) with adequate and reasonable assurance of Seller’s financial and operational capability to perform timely any of Seller’s obligations under this Agreement.

• Notwithstanding any other provision of this Agreement, either Party may immediately terminate this Agreement and/or any Purchase Order by giving written notice to the other Party under the following circumstances: (a) if the other Party becomes insolvent, or any voluntary or involuntary petition in bankruptcy or corporate reorganization is filed by or against such other Party, or a receiver is appointed with respect to any other assets of such other party or a liquidation proceeding or its equivalent is commenced by or against such other Party and such matter is not dismissed within twenty (20) days after filing; or (b) if the other Party fails to perform any of the obligations under this Agreement or any Purchase Order and such failure cannot be cured or, if the failure can be cured such failure is not cured within a reasonable period of time (not to exceed thirty (30) days) after the defaulting party’s receipt of written notice from the non-defaulting party requesting a remedy thereof.
• Notwithstanding the foregoing, STE may, at any time and without cause, terminate this Agreement and/or any Purchase Order in whole or in part by notice to Seller. In the event STE terminates without cause this Agreement and/or any Purchase Order in whole or in part (a) Seller shall forthwith cease all Services and terminate work to the extent specified and, for the benefit of STE, dispose of finished Goods and work-in-progress on the Goods as STE may direct in writing; (b) Seller will use its reasonable commercial efforts to mitigate any costs associated with such termination, including seeking to use raw materials and components for other customers or applying them to future orders; and (c) subject to Seller meeting its obligations set forth in the preceding clauses (a) and (b), STE shall pay Seller for Goodes and Services properly completed prior to the effective date of termination and for any works-in-progress which cannot be readily applied to other customers or otherwise utilized by Seller.

14. Waiver.

No waiver by STE of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by an authorized representative of STE. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement by STE operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder by STE precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege by STE. Failure of STE to object to provisions contained in Seller’s Order Confirmations or other communications shall not be deemed a waiver of the Agreement or acceptance of such provisions. No course of dealing or custom in the trade shall constitute a modification or waiver by STE of any right.

15. Confidential Information.

All non-public, confidential, or proprietary information of STE, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by STE to Seller, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement, and may not be disclosed or copied unless authorized in advance by STE in writing (“Confidential Information”). Seller shall maintain the confidentiality of any Confidential Information in the same way it protects its own confidential information of like kind, but in no event shall Seller take less than reasonable precautions to prevent the unauthorized disclosure, publication, dissemination, or use of the Confidential Information. Seller shall not use the Confidential Information for its own, or any third party’s, benefit. Seller shall promptly notify STE in the event it becomes aware of the misuse or improper disclosure of the Confidential Information, including access to the information via a cyber event, and shall fully cooperate with STE in attempting to retrieve or limit the damage from the misuse or improper disclosure of such Confidential Information. Upon STE’s instruction, Seller shall promptly return or destroy all documents and other materials received from STE. STE shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Seller at the time of disclosure; or (c) rightfully obtained by Seller on a non-confidential basis from a third party.

16. Force Majeure.

In addition to all other limitations stated herein, neither Party shall be liable for any act, omission, result, or consequence of any failure, inability, or decision to not accept delivery of any good or product ordered or to delay performance caused by acts or omissions, including, but not limited to, those which are due to any act of God; a pandemic; war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; any order bearing priority rating or order placed under any allocation program established pursuant to law; fire, flood or other casualty; governmental regulation or requirement (whether legal or not); or any cause beyond a Party’s reasonable control whether of similar or dissimilar nature than those above enumerated. Change in economic circumstances, financial hardship, increased cost of performance, strikes, or labor disputes shall not constitute a force majeure event. The Party claiming a force majeure event shall promptly notify the other Party. Such Notice shall include a description of the nature of the event of force majeure and its possible consequence. During the delay or failure of performance on the part of the Seller, and for an appropriate period thereafter, STE shall be entitled to (i) purchase replacement Goods from other available sources, which shall reduce the volume of ordered Goods by the amount of Goods thus replaced (and Seller will reimburse STE for any increased costs); and/or (ii) require the Seller to deliver replacement Goods from other available sources at the prices established in the delivery contract. If Seller’s performance is delayed for a period of 30 days or more due to an event of force majeure, STE may terminate this Agreement and/or the applicable Purchase Order immediately upon notice to Seller without penalty, termination charges, or liability on account of such termination.

17. Insurance.

Seller shall maintain in effect, at Seller’s expense, the following insurance coverage protecting both Seller and STE from any and all claims and liabilities for property damage, personal injury, death, and economic damage, to any person, that arises from the Goods or their use or the performance of the Services or any activities connected with the Services: (a) Commercial General Liability Insurance Policy, including (i) $2 million combined single limit for bodily injury including death and property damage, which amount may be provided for with a primary and excess umbrella policy; (ii) $2 million general aggregate limit; (iii) $2 million aggregate limit for products-completed operations; and (iv) an endorsement for Manufacturers Errors & Omission in the amount of $2 million; (b) Business Automobile liability coverage with a minimum limit of $1 million combined single limit for each occurrence for bodily injury including death and property damage; (c) Workers compensation insurance compliant with applicable statutory limits and employers liability insurance with limits of $500,000 each accident, $500,000 disease each employee, and $500,000 disease policy limit; (d) Excess liability insurance with a minimum limit of $5 million each occurrence and $1 million aggregate to apply in excess of all insurance coverages stipulated above; and (e) Recall insurance in the amount of $2 million. All standard coverages shall be provided under a commercial general liability policy form without modifications that reduce coverage. All insurance policies required to be carried by Seller shall be written on an occurrence, not a claims-made, basis by companies duly authorized to transact the prescribed coverages in each jurisdiction in which Seller operates that have a rating of A-VIII or better. Upon STE’s request, Seller shall cause STE, along with STE’s directors, officers, shareholders, parents, affiliates, subsidiaries, employees, successors and assigns, to be named as additionally insured and loss payee under each policy and shall cause each insurer to agree not to cancel or materially modify such policy without giving STE at least 30 days prior written notice. Seller shall furnish to STE certificates evidencing compliance with the foregoing. Except where prohibited by law, Seller shall waive, and shall require its insurer to waive, all rights of subrogation against STE’s insurers and STE.

18. Assignment.

Seller’s rights, interests, or obligations hereunder may not be assigned, transferred, or delegated by Seller without the prior written consent of STE. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Seller of any of its obligations under this Agreement. STE may at any time assign or transfer any or all of its rights or obligations under this Agreement without Seller’s prior written consent to any affiliate or to any person acquiring all or substantially all of STE’s assets.

19. Subcontractors.

Seller shall ensure that all its liabilities and obligations under the Agreement flow down to its suppliers and subcontractors. Seller shall ensure compliance by its suppliers and subcontractors with such liabilities and obligations as required by STE and its customers. The Seller shall be responsible for all acts and omissions of its subcontractors as fully as if they were the acts and omissions of the Seller or its employees or agents.

20. Relationship of the Parties.

The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

21. No Third-Party Beneficiaries.

This Agreement benefits solely the Parties to this Agreement and their respective successors and permitted assigns. Nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

22. Governing Law; Jurisdiction.

This Agreement is governed by, and construed in accordance with the laws of the State of Iowa without giving effect to any conflict of laws provisions thereof that would result in the application of the laws of a different jurisdiction. All legal proceedings shall be instituted in the state or federal courts of the State of Iowa. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts.

23. Notices.

All notices shall be in writing and addressed to: (a) STE at Legal Department, Steel Technologies LLC, 700 N. Hurstbourne Parkway, Ste. 400, Louisville, KY 40222 with a copy to stlegalnotices@sttxna.com; or (b) Seller at the address set forth on the face of the Order Confirmation or to such other address for either party as that party may designate by written notice. All notices must be delivered by nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested).

24. Survival.

Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Warranties, Remedies, Insurance, Compliance with Laws, Confidential Information, Governing Law; Jurisdiction, and Survival.

25. Limitation of Liability.

Nothing in this Agreement shall exclude or limit (a) Seller’s liability under Sections 2, 5, 6, 7, 8, 10, 11, 12, 13, 14, 16, 17, 18, 19 hereof, or (b) Seller’s liability for fraud, personal injury or death caused by its negligence or willful misconduct.

26. Modification.

STE and Seller expressly agree that STE may modify these Terms from time to time without notice, and such modifications shall be binding upon Seller. Seller agrees to periodically review the online terms and conditions for updates (available at STEInc.com).

27. Severability.

If any term or provision of this Agreement is determined to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.