Gibbs Interwire & STEEL COMPANY, INC.

TERMS AND CONDITIONS FOR TOLL WORK

This Agreement (the “Agreement”) pertains to any and all work that  Gibbs Interwire & STEEL COMPANY, INC. (“Gibbs Interwire”) performs on material sent to Gibbs Interwire by a customer (hereinafter generally referred to as “Toll Work”).  Toll Work shall include without limiting the generality of the foregoing, any and all edging, slitting, straighten and cut, torsion straighten, or oscillating work, that Gibbs Interwire’ performs at a customer’s request.

1.  Complete Agreement:  You hereby agree that Gibbs Interwire undertakes Toll Work only upon the terms and conditions set forth in this Agreement.  Any terms and conditions in your documents, including any purchase order, are objected to and shall be without force and effect and shall not be binding upon Gibbs Interwire except to the extent, if any, that such terms and conditions shall be identical to the terms and conditions set forth herein.  No salesman or agent of Gibbs Interwire has any authority to change this Agreement in any manner. Your delivery of material to Gibbs Interwire for Toll Work shall constitute your acceptance of this Agreement.
2.  Payment: Payment terms are stated on the face of Gibbs Interwire’ Order Acknowledgment, where applicable, and Gibbs Interwire’ Invoice, as well as hereunder.
3.  All bills are payable (in funds at par) to the address Gibbs Interwire has designated for payment on the invoice.
4.  In addition to the price specified, the amount of freight charges (including specifically and without limitation any fuel surcharge received by Gibbs Interwire) and transportation taxes, if any, and any present or future federal or provincial sales tax, use tax, excise tax, customs duty, goods and services tax, value added tax, or any similar tax or governmental charge applicable to your order and to the sale and/or furnishing of the materials and/or services rendered by your order, shall be paid by you.
5.  All payments for the materials furnished hereunder shall be made upon the basis of materials delivered as shown by Gibbs Interwire’ delivery documents and records, whether signed by you or not.
6.  If you fail to make payment when due, or if Gibbs Interwire at any time has any doubt as to your ability or intention to pay, we may decline to make any further shipments on this or any other order with you.  The rights and remedies of Gibbs Interwire set forth herein shall not be exclusive, and Gibbs Interwire shall have all other rights and remedies at law.
7.  In the event of a default by you in making any payment due under this order or any other contract with or obligation to Gibbs Interwire, then, until you cure such default, Gibbs Interwire may, at its election, apply any payments from you in such proportion to your various accounts with Gibbs Interwire as it deems proper.  Payments not received within thirty (30) days of shipment shall be deemed delinquent and shall bear interest at an annual rate of eighteen (18%) percent or at the maximum legal rate, if less.
8.  Delivery and Risk of Loss:
9. Unless otherwise specified in writing by Gibbs Interwire, all deliveries shall be FOB Gibbs Interwire’ point of shipment.  Freight, plus all applicable surcharges and taxes, shall be payable by you to the ultimate points of destination unless otherwise specified in writing to Gibbs Interwire. Gibbs Interwire will use all reasonable means to comply with any packaging, loading or bracing requests made by you.  Any extra costs due to compliance with such requests may be charged to you. If no packaging, loading or bracing requests are made by you, Gibbs Interwire shall comply with the minimum requirements customarily applying to the method of transportation used for such products.
10.  Risk of damage or loss to goods shall pass to you upon Gibbs Interwire’ delivery to carrier or upon tender to your agent.
11.  Pursuing claims with carriers for loss or damage in transit shall be your responsibility.
12.  Responsibility for obtaining necessary transportation permits, if any, shall be with you unless otherwise assumed by Gibbs Interwire.
13.  Gibbs Interwire shall not be liable for any delay in delivery due to (1) fires, floods, explosions, the elements, acts of God, labor disputes, accidents to machinery, acts of sabotage, riots, war, delays in transportation or lack of transportation facilities, restrictions imposed by federal or state legislation, failure of suppliers of Gibbs Interwire to meet delivery schedules, delay in Gibbs Interwire’ Credit Department receiving information upon which approval of your order is based, or any cause, condition or contingency beyond the control of Gibbs Interwire, whether similar to those enumerated or not.  In the event of any of the foregoing, Gibbs Interwire may apportion its production in such manner as it may consider equitable.
14.  YOU AGREE THAT GIBBS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, LIQUIDATED, PENAL, OR OTHER DAMAGES INCLUDING DELAY IN OR FAILURE TO DELIVER  OR PERFORM THE AGREEMENT IN WHOLE OR IN PART, IRRESPECTIVE OF WHETHER CLAIMS OR ACTIONS FOR SUCH DAMAGES ARE BASED UPON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, WARRANTY OR OTHERWISE.
15.  Customer’s Warranty of Title.  You warrant to Gibbs Interwire that you own good title to the material you are supplying to Gibbs Interwire for Toll Work.  You further represent that such materials are delivered free from any security interest or other lien or encumbrance, unless stated in writing to Gibbs Interwire.  If any other party has a claim of any kind against the materials you deliver to Gibbs Interwire, you agree to have such party consent in writing to the terms of this Agreement.  You further agree to indemnify and save Gibbs Interwire harmless with respect to any claim or action brought by any person, party, or entity with respect thereto, whether based upon contract, tort, negligence, strict liability, warranty or otherwise.  

5. Gibbs Interwire Disclaimer of Warranty, Limitation of Damages, Indemnification:  Gibbs Interwire represents that it will use its best efforts to process your material, but GIBBS MAKES NO WARRANTY WITH RESPECT THERETO.  Your sole remedy for material that is processed by Gibbs Interwire and does not meet the written specifications you have provided Gibbs Interwire is as follows:
6.  You shall have the right to file a claim with Gibbs Interwire for a credit in the amount invoiced by Gibbs Interwire for work that is not performed by Gibbs Interwire using its best efforts in a workmanlike manner;
7.  Your claim for a credit shall only cover that portion of work that is non conforming.  Any credit allowed by Gibbs Interwire will be a pro rata reduction based on workmanship that is found by Gibbs Interwire to be non conforming;
8.  Credits only will be allowed by Gibbs Interwire if it is agreed by the parties that Gibbs Interwire has not used its best efforts to process the material.

YOUR REMEDY SET FORTH ABOVE, WHICH SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY, IS EXPRESSLY LIMITED AS FOLLOWS:

1.  YOU AGREE THAT GIBBS SHALL NOT BE RESPONSIBLE FOR THE COST OF MATERIAL THAT GIBBS PROCESSES, OR CONSEQUENTIAL, INCIDENTAL, SPECIAL, LIQUIDATED, PENAL, OR OTHER DAMAGES INCURRED BY YOU OR YOUR CUSTOMER OR ANY THIRD PARTY, AND YOU RELEASE GIBBS FROM ANY AND ALL LIABILITY, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, YOU UNCONDITIONALLY AGREE TO INDEMNIFY AND SAVE GIBBS HARMLESS WITH RESPECT TO ANY CLAIM OR ACTION BROUGHT BY ANY PERSON OR ENTITY WITH RESPECT THERETO.

1.  Technical or other advice is furnished by Gibbs Interwire solely as an accommodation and shall not increase the scope of Gibbs Interwire’ responsibility or liability.  Gibbs Interwire shall have no liability in respect of any loss or damage caused by reliance on such advice, whether or not negligent, unless furnished by Gibbs Interwire in bad faith.
2.  Gibbs Interwire, without limiting the generality of the foregoing, shall in no event have any liability in respect to labor costs, downtime of any machinery or equipment, production delays or stoppages, shipping delays or contract cancellations or breaches, loss of business or profits, or any incidental or consequential damage or loss of any nature or kind, whether or not similar to the foregoing.  Under no circumstances shall Gibbs Interwire’ maximum liability for damages exceed the contract price for the materials claimed to be defective or unsuitable.

There are no remedies which extend beyond those stated above, and Gibbs Interwire’ sole responsibility is as stated.  Any and all representations, promises, warranties, or statement by Gibbs Interwire’ salesmen or agents which differ in any way from the terms of this Section shall be given no force or effect.

6.  Claims:
7.  Damages in Transit:  Shipments must be inspected by you before unloading to ascertain any damage enroute.  The carriers, when accepting material at Gibbs Interwire’ plant, are responsible for damages in transit, and all claims for damages in transit should be made promptly by you to the carrier.
8.  Claims for shortages, defective materials or nonconformity to specifications will be investigated promptly provided that you give Gibbs Interwire written notice of the alleged defect or nonconformity, in writing, within thirty (30) days after receipt of the materials.  If the alleged defect or nonconformity to specifications is discernible from prompt inspection of the materials, advise Gibbs Interwire immediately upon receipt of the materials.
9.  In any event, if you do not provide Gibbs Interwire with written notice of any defect or nonconformity within thirty (30) days after delivery, such failure to notify Gibbs Interwire shall constitute an irrevocable acceptance of the materials and workmanship, a waiver, and admission that you have had full and complete opportunity to inspect the materials, an admission that the materials and workmanship fully comply with all terms and specifications, and you shall be estopped from claiming otherwise.
10.  No claim will be allowed except as provided above, and your remedies as provided herein and in Section 5 above are your exclusive and sole remedies.
11.  Miscellaneous:
12.  All changes in your order must be in writing and confirmed by Gibbs Interwire. All costs for changes will be at your expense, subject to the terms and conditions herein.
13.  Gibbs Interwire’ failure to insist upon strict performance of any provision of this Agreement shall not constitute a waiver of that or any other provision or any of Gibbs Interwire’ rights under this Agreement, nor shall it constitute a waiver by Gibbs Interwire of any subsequent default by you in the performance of this Agreement.  The terms, conditions, and limitations herein, and the rights of Gibbs Interwire, may be enforced at any time in whole or in part,
14.  You agree to pay any and all costs, expenses, and reasonable attorneys’ fees, on a solicitor and his own client basis, which Gibbs Interwire may incur or become liable for by reason of Gibbs Interwire enforcing or attempting to enforce the terms of this Agreement.
15.  This Agreement shall be construed in accordance with the laws of Ontario and the laws of Canada applicable therein.  You submit to the non-exclusive jurisdiction of the courts of Ontario for the determination of any issues arising out of or in connection with this Agreement.  You further agree that the provisions of the Vienna Sales Convention shall not apply to the subject matter of this agreement.
16.  This Agreement shall be binding upon and inure to the benefit of the respective heirs, executors, administrators, receivers, legal representatives, successors, and permitted assigns of the parties.
17.  The Parties have required that this Agreement and all documents relating thereto be drawn up in English.  Les Parties ont demande′ que cette convention ainsi que tous les documents que s’y attachment soient re′dige′s en anglais.
18.  All of the provisions of this Agreement are separate and severable.  If any provision or part of any provision is held invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the remainder of such provision or any other provision of this Agreement.
19.  Captions have been inserted solely for convenient reference and shall not limit or affect the scope or meaning of any provision contained herein.
20.  All reference to “you” and “your” shall mean the buyer.

ACKNOWLEDGMENT REGARDING TERMS AND CONDITIONS OF SALES.  BUYER HAS REVIEWED THESE TERMS AND CONDITIONS OF SALE AND ACKNOWLEDGES THAT THEY INCLUDE PROVISIONS WHICH LIMIT SELLER’S WARRANTIES, CONDITIONS AND LIABILITY WITH RESPECT TO PRODUCTS SOLD.  BUYER ACCEPTS THE TERMS AND CONDITIONS OF SALES CONTAINED IN THIS AGREEMENT IN THEIR ENTIRETY