ALL SALES BY SELLER ARE MADE SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS (“TERMS AND CONDITIONS”). TERMS ADDITIONAL TO OR DIFFERENT FROM THOSE IN THESE TERMS AND CONDITIONS, INCLUDING BUT NOT LIMITED TO TERMS CONTAINED IN BUYER’S PURCHASE ORDER, QUALITY MANUALS, OR REQUIRED IN ORDER TO ACCESS OR PARTICIPATE IN ANY ONLINE BUYER PORTALS, ARE DEEMED MATERIAL AND HEREBY REJECTED UNLESS ACCEPTED IN A WRITING SIGNED BY AN OFFICER OF NIAGARA LASALLE CORPORATION (“SELLER”). Seller’s acceptance of Buyer’s purchase order or commencement of performance shall not constitute acceptance of any of Buyer’s terms and conditions of purchase. Buyer’s assent to these terms and conditions shall be conclusively presumed from Buyer’s receipt of Seller’s order acknowledgment without written objection sent to Seller within ten (10) days after receipt of Seller’s order acknowledgement or accepted purchase order. BUYER ACCEPTS THESE TERMS AND CONDITIONS AS THE CONTROLLING TERMS AND CONDITIONS FOR PURCHASES BY BUYER FROM SELLER. BUYER AGREES THAT THERE SHALL NOT BE A “BATTLE OF FORMS” AS DESCRIBED IN SECTION 2-207 OF THE UNIFORM COMMERCIAL CODE.

Seller’s base prices, together with related extras, are subject to change without notice. Each shipment will be priced separately, both as regards to base price and extras, in accordance with Seller’s prices in effect at the time of the respective shipments. Prices, quotations, shipments, and delivery are F.O.B. our works. Delivered prices are computed by adding to our F.O.B. mill price, actual transportation costs, including transportation taxes, from our mill to destination.

Any change in transportation charges and taxes thereon which become effective prior to shipment to Buyer shall be for the account of the Buyer. In addition to the stated prices, the Buyer shall reimburse the Seller for any sales, purchase, use, consumption and excise taxes, retailers’ occupation taxes, taxes measured by sales and similar taxes which the seller at any time either pays or must collect.

The purchase price of the products shall be as stated on the applicable Seller order acknowledgement or accepted purchase order; provided, however, that if Seller announces a surcharge, such surcharge shall become effective for products scheduled for shipment beginning on the date set forth in Seller’s announcement of such surcharge or, if there is no such date, immediately upon such announcement. Seller reserves the right to change all quotations at any time. Seller shall be bound only upon issuance of an order acknowledgment or shipment of all or any part of the products ordered.

Unless otherwise agreed to in writing by Seller, payment terms are net thirty (30) days from the date of invoice payable in United States dollars or the equivalent thereof, with a ½% discount of the mill price of the material only for payment within ten (10) days from the date of invoice. Payments shall be made electronically (including, without limitation, by ACH or wire transfer) in accordance with Seller’s payment instructions. If Buyer fails to make payment in full or in part or refuses to pay any applicable price increases or surcharges, Seller shall have the right to: (i) immediately suspend performance and cancel the unfinished portion of the order, or (ii) proceed with the order, given an extension of time for performance as is necessitated by the temporary suspension. Seller shall have right to enforce payment of the full purchase price, including any price increase or surcharge, for products already delivered or in process. An interest charge of 1-1/2% monthly (18% annual rate) or the maximum allowed by state law will be imposed on all past due accounts. To pay all collection costs incurred by seller in enforcement of the terms and conditions of this agreement, including court costs, actual reasonable attorney’s fees and collection agency fees, within the standards of the industry, but not less than 25% of the unpaid amount of principal and interest.

Buyer may not modify, cancel, or otherwise alter purchase orders after receipt of purchase order by Seller without Seller’s written consent. If Buyer cancels a purchase order without Seller’s written consent, Buyer shall, at a minimum, be liable for the cost of the hot roll steel ordered by Seller to fulfill Buyer’s purchase order.

Seller warrants that products shall conform in material respect to specifications accepted in writing by Seller when tendered to Buyer. SELLER MAKES NO OTHER WARRANTY WHATEVER, EXPRESS OR IMPLIED. ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND ALL IMPLIED WARRANTIES OF FITNESS FOR ANY PARTICULAR PURPOSE ARE DISCLAIMED BY SELLER.

Buyer’s sole and exclusive remedy with respect to the portion of any products proven to have failed to meet in material respect the specifications accepted in writing by Seller shall be, at Seller’s discretion: (1) replacement of products in Buyer’s possession or (2) credit against the purchase price of such products upon authorized return by Seller. SELLER’S LIABILITY, WHETHER IN CONTRACT, IN TORT, UNDER WARRANTY, IN NEGLIGENCE, OR OTHERWISE, SHALL NOT EXCEED THE PURCHASE PRICE OF THE PRODUCTS AGAINST WHICH CLAIM IS MADE, AND UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, DEMURRAGE CHARGES, COSTS OF SHIPMENT, DOWNTIME, LOST PROFITS, OR LOST SALES. Seller’s liability on any claim of any kind whatsoever, or any loss or damage arising out of connected with or resulting from its sale of product to Buyer, or from the performance or breach thereof, or from the design, manufacture, sale, delivery, resale, technical direction in selection, inspection, repair, operation or use of any steel covered by or furnished by Seller to Buyer shall in no case exceed the replacement value of such steel which gave rise to the claim.  Seller and Buyer expressly agree to this allocation of risk and the price stated for the products is consideration in limiting Seller’s liability.

NO DELIVERY DATES ARE GUARANTEED. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CLAIMS FOR LABOR OR FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES INCLUDING, BUT NOT LIMITED TO, DEMURRAGE CHARGES, COST OF SHIPMENT, DOWNTIME, LOST PROFITS, LOST SALES, OR ANY OTHER DAMAGES RESULTING FROM DELAY IN DELIVERY. ACCEPTANCE OF PRODUCTS BY BUYER SHALL CONSTITUTE A WAIVER BY BUYER OF ANY CLAIM FOR DAMAGES ON ACCOUNT OF DELIVERY DELAY.

In any event and in addition to all other limitations stated herein, Seller shall not be liable for any act, omission, result or consequence, including but not limited to any delay in delivery or performance, which is (i) due to any act of God, the priority of any government order, any order bearing priority rating or order placed under any allocation program (mandatory or voluntary) established pursuant to law, local labor shortage, fire, flood or other casualty, governmental regulation or requirement, shortage or failure of raw material, supply, fuel, power or transportation, breakdown of equipment, pandemic or outbreak of communicable disease, or any cause beyond Seller’s reasonable control whether of similar or dissimilar nature to those above enumerated, (ii) due to any strike, labor dispute, or difference with workers, regardless of whether or not Seller is capable of settling any such labor problem, or (iii) due to acts of Buyer.

Unless expressly specified in Seller’s order acknowledgement, all deliveries are F.O.B. point of shipment (Uniform Commercial Code definition), whether freight prepaid by Buyer or freight collect to destination, and risk of loss to the products shall pass to the Buyer at the point of shipment from Seller’s facility, whether freight prepaid or freight collect to destination, regardless of which party arranges the freight charges or particulars of shipment. For products priced at destination, any charges at destination for spotting, switching, handling, storage, demurrage and other accessory services shall be for Buyer’s account, unless otherwise stated in the Seller’s order acknowledgement. Risk of loss, damage or delay in transit shall be borne by Buyer. Seller reserves and retains title to products supplied hereunder until payment in full of the purchase price therefore is received by Seller. With respect to freight collect shipments, it shall be the responsibility of the Buyer to select the carrier involved and for freight prepaid, freight collect or any other arrangement, it shall be the responsibility of the Buyer to file and pursue any claims with the carrier related to loss, damage or delay in transit. Buyer shall not have the right to divert such shipment without permission of the Seller. Unless specified in Seller’s order acknowledgment or accepted purchase order, Seller reserves the right to select the mode of transportation.

Claims by Buyer for shortage of products or for products damaged during shipment, storage, or processing must be made within ten (10) days of receipt by Buyer. Any claim that the products received by Buyer do not conform in material respect to the specifications on the face of Seller’s Order Acknowledgment or Invoice must be made within sixty (60) days of receipt of shipment, which Buyer and Seller agree is a reasonable time. THE FAILURE TO NOTIFY SELLER OF ANY CLAIM WITHIN THE TIME PERIOD SPECIFIED BY THIS SECTION SHALL CONSTITUTE A WAIVER OF AND BAR SUCH CLAIM. SELLER SHALL INCUR NO LIABILITY FOR SHORTAGE OR DAMAGE ALLEGED TO HAVE OCCURRED OR EXISTED AT OR PRIOR TO DELIVERY TO THE BUYER UNLESS BUYER SHALL HAVE ENTERED FULL DETAILS THEREOF ON CARRIER’S DELIVERY RECEIPT WHICH MUST BE SIGNED BY THE CARRIER’S AGENT. SELLER MUST BE GIVEN AN OPPORTUNITY TO INVESTIGATE THE CLAIM BEFORE BUYER DISPOSES OF THE PRODUCTS. ANY DAMAGED PRODUCTS SHALL NOT BE RETURNED, REPAIRED OR DISCARDED W ITHOUT SELLER’S WRITTEN PERMISSION. Buyer agrees that the provisions of the Seller’s claims management policy shall govern all claims submitted to the Seller by the Buyer for products sold hereunder, unless provided otherwise in Seller’s order acknowledgement. No allowance will be made to Buyer for storage, materials or labor involved in the movement of rejected products from the plant of Buyer or Buyer’s processor or Buyer’s storage facility. A variation between Seller and Buyer’s scale weight of up to one percent (1%) shall be permissible.

The products sold hereunder shall be subject to Seller’s standard manufacturing variations, tolerances and classifications.

Seller assumes no obligation or liability for any technical advice furnished to Buyer, including without limitation technical advice with respect to the use of Seller’s products and services, all such technical advice being given and accepted at Buyer’s risk. Seller will not be liable for any damages of any kind arising out of or relating to the use of or the inability to use the information provided, including but not limited to any special, indirect, incidental or consequential damages including, but not limited to, demurrage charges, cost of shipment, downtime, lost profits or lost sales, whether foreseeable or not, and even if Seller has been advised of the possibility of damages.

Prices quoted do not include any taxes or other assessments. All taxes of any kind levied by any federal, state, municipal, foreign, or other governmental authority which Seller is required to collect or pay with respect to the production, sale, purchase, delivery, storage, processing, use, consumption, or shipment of products sold hereunder shall be the responsibility of Buyer. This also includes, in the case of export orders, responsibilities for any tariffs, duties or the management of any special import restrictions or other customs formalities associated with the importation of the products by the Buyer. Buyer agrees to pay all such taxes and further agrees to reimburse Seller for any such payments made by Seller.

Seller reserves the right to enforce these terms and conditions at any time and none shall be deemed waived unless such waiver is in writing and signed by an authorized officer of Seller.

BUYER SHALL NOT ASSIGN OR DELEGATE ANY OR ALL OF ITS DUTIES OR RIGHTS HEREUNDER WITHOUT THE PRIOR WRITTEN CONSENT OF SELLER.

The Buyer and Seller agree that any action arising out of this sale, including any action for a breach of warranty, must be commenced within one (1) year after the products are delivered to the Buyer.

This agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Indiana, without regard to conflict of law principles.

BUYER, ACTING FOR ITSELF AND ITS SUCCESSORS AND ASSIGNS, HEREBY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY LITIGATION ARISING FROM OR RELATED TO THIS AGREEMENT. BUYER EXPRESSLY AND IRREVOCABLY CONSENTS TO THE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN HAMMOND, INDIANA, AND WAIVES THE RIGHT TO ASSERT THAT ANY ACTION IN ANY SUCH COURT IS IN THE IMPROPER VENUE OR SHOULD BE TRANSFERRED TO A MORE CONVENIENT FORUM.

Any pricing information provided by Seller to Buyer is proprietary to Seller and shall be held in confidence by Buyer, shall only be used by Buyer in connection with this agreement, and shall not be used for any other purposes or disclosed to third parties without Seller’s prior written consent. Buyer shall be liable for any loss to Seller or commercial gain by others from unauthorized use of confidential information occasioned by Buyer’s failure to comply with this provision.

Except as otherwise agreed to by Seller in writing, these terms and conditions, together with the applicable Seller order acknowledgement or accepted purchase order, constitute the complete agreement between Seller and Buyer, superseding any prior oral or written communications. Buyer agrees that Seller may modify these terms and conditions from time to time, and such modifications shall be binding upon Buyer.