Regional Metals Recycling Operations

MW METALS GROUP, LLC

TERMS AND CONDITIONS OF PURCHASE

1. ACCEPTANCE/ENTIRE AGREEMENT: “Goods” shall mean the goods described in a purchase order submitted to you (also referred to as “Seller”) from MW Metals Group, LLC (“MWM”) for the purchase of such goods (each, an “Order”). Your acceptance of an Order from MWM, sales to MWM of Goods, and MWM’s purchases of Goods from you, are each expressly limited to and conditioned upon, the provisions of MWM’s Order and these Terms and Conditions of Purchase (the “Terms”), which shall govern such purchase and sale, and shall supersede all other agreements and terms between you and MWM, unless otherwise agreed in writing. “Agreement” shall mean only MWM’s Order for the Goods, and any signed agreement between Seller and MWM, in each case as supplemented by these Terms. MWM agrees to purchase Goods from you only on the express condition that you assent to these Terms. Your acceptance of MWM’s Order in any manner, including by fulfillment and/or delivery of such Order, shall cause the Agreement to be formed and accepted by you, and which shall also constitute your assent to these Terms. Such Agreement shall constitute the entire agreement between you and MWM with respect to the sale and purchase of the Goods. Except for any specifications, descriptions, or representations by you with respect to the Goods, including as to quality and quantity (each of which shall be part of the Agreement unless contradictory to MWM’s Order or these Terms, in which case such provisions are hereby rejected), the Agreement shall supersede any prior or other agreements, written or oral, between you and MWM. Except as expressly provided in the preceding sentence, MWM expressly objects to any contrary, different, inconsistent, or additional terms or conditions contained in any quotation, acknowledgment, or other document of Seller or otherwise, and any such term or condition shall be superseded by the provisions of MWM’s Order and these Terms, which shall prevail. No contrary, different, inconsistent, or additional terms or conditions shall be of any force or effect unless agreed to by MWM in writing, and Seller agrees that any such provision shall not constitute a part of MWM’s Order or the Agreement. Neither MWM’s Order, nor MWM’s acceptance of or payment for any Goods, shall constitute acceptance of any terms of Seller, and any reference to any document containing terms of Seller is hereby rejected and deemed to exclude any terms contained therein unless agreed to by MWM in writing. If MWM’s Order is deemed to be an acceptance of an offer by Seller, such acceptance is hereby limited to the express terms of MWM’s Order and these Terms, and any variances must be agreed to by MWM in writing. No implied terms or conditions shall be substituted for any of these Terms or the Agreement to resolve any conflict. Any trade usage or course of dealing inconsistent with the terms of MWM’s Order and/or these Terms is also expressly negated. Nothing herein shall limit any rights of MWM pursuant to the State of Ohio Uniform Commercial Code (the “UCC”).
2. SALE AND DELIVERY; TAXES: Subject to Section 7 of these Terms, Seller shall sell and deliver to MWM the types and quantities of Goods specified in MWM’s Order, at the prices, on the payment terms, and from Seller’s site(s) specified in the Order and/or MWM’s invoice generated for such Order. The final purchase price for the Goods shall be determined and paid by MWM after weighing and inspections are performed, all inspection, grading, weighing, and sorting reports are received, and the final price is calculated based on such results, as further provided in Section 4. MWM is not required to accept or pay for quantities of Goods in excess of or deviating from the Order unless and until such deviations and/or excess quantities are approved by MWM in writing. Goods sold and delivered by Seller, and Seller’s performance, shall each be in accordance with the Order, the Terms, the Agreement, all instructions, specifications, and warranties, and all federal, state, and local laws, ordinances, orders, rules, and regulations (collectively, “Applicable Laws”). Failure by Seller to comply in any respect with any of the foregoing shall entitle MWM, in addition to any other rights or remedies of MWM, to terminate any or all Orders and MWM shall be relieved of all liability for any undelivered portion of the Goods. Seller represents and warrants that the prices by which the Goods are sold to MWM do not exceed Seller’s currently established prices for the Goods, if any, and if Seller offers a lower price to any other person, the price to be paid by MWM for the Goods shall be automatically reduced to such lower price. All Goods shall be made available at Seller’s site(s) specified in the Order, and Seller shall load all Goods into the trailers or other receptacles provided at the site(s) by MWM or its customer in accordance with the schedule provided by MWM or its customer. Seller shall be responsible for all costs associated with loading all Goods, and loads shall be limited to the capacities of such trailers, and in compliance with Applicable Laws. Such containers shall be located in areas on each site which are readily and safely accessible for pick-up of the trailers and the Goods. All trailers shall remain the property of the person providing the trailers (whether or not it is MWM), and Seller shall be responsible for all damage or loss to such trailers caused by Seller, its personnel, its contractors, or any other person under the direction or control of Seller or on Seller’s site with or without permission of Seller, and shall be responsible for all injuries or death to any persons while at Seller’s site(s). Seller shall maintain appropriate and customary insurance for such purposes. Except as may be provided in the Order, the price includes all applicable federal, state and local taxes, fees, and charges in effect on the Order date, as may be adjusted accordingly
3. WARRANTY: Seller represents and warrants to MWM as follows: (i) all Goods shall fully conform with the Order, all instructions of MWM, any approved samples, and all specifications for the Goods, including, without limitation, any specifications provided by Seller and/or MWM, as supplemented by the applicable specifications for the Goods set forth in the current version of the Scrap Specifications Circular published by ReMA; (ii) all Goods shall be of the types, quantities, composition, and qualities specified by Seller and in the Order and shall be fit for the purpose intended; (iii) all Goods and all performance by Seller shall be in compliance with all Applicable Laws; (iv) MWM shall receive good and marketable title to all Goods, free and clear of all liens, claims, charges, and other encumbrances; (v) all Goods shall be the type, quantity, and percentage of material set forth in the Order, shall not have been commingled with other materials, shall have been generated in accordance with the descriptions provided by Seller, and shall be merchantable and free from defects, which shall include, without limitation, that the Goods shall be free from all foreign objects, including wood, stones, dirt, paper, ice, snow, oils, grease, radioactive materials, PCBs, and other hazardous substances; (vi) any chlorofluorocarbons or other substances described in 42 U.S.C. §7671A were removed from the Goods prior to their sale to MWM in full compliance with all Applicable Laws; and (vii) any facility where the Goods are or have been generated, handled, processed, reclaimed, or otherwise managed was and is in compliance with all Applicable Laws. All representations and warranties of Seller shall survive Seller’s performance and any termination of the Agreement.
4. WEIGHTS; INSPECTION; REJECTION AND REVOCATION OF ACCEPTANCE: All purchases of Goods shall be subject to determination of final weight and quality, including conformance with the Order, these Terms, and all specifications for the Goods, as determined in accordance with this Section 4. Gross, tare, and net weights of Goods shall be determined by weighing at a certified and approved scale at the receiving yard or other destination for delivery of the Goods (the “Destination Weight”) which shall control; provided, however, that all loads are subject, in MWM’s sole discretion, to weighing at an independent scale location designated by MWM (an “Independent Scale”). All weight discrepancies determined and not otherwise resolved by MWM shall be adjusted in a fair and equitable manner as determined by MWM. The final weight of the Goods as approved by MWM shall be used to calculate the price for the Goods in accordance with MWM’s Order. Inspection and testing of the Goods may be performed by MWM at any time before, during, or after pick-up of the Goods. MWM’s determination as to the quality of the Goods and the compliance of the Goods with the Agreement shall be final, conclusive, and binding. No inspection or testing, failure to inspect or test, acceptance of Goods, and/or payment, shall affect or waive any of MWM’s rights or remedies under the Agreement or affect or waive any warranties of Seller, and all warranties of Seller shall survive approval, inspection, testing, delivery, acceptance, and payment by MWM. MWM’s acceptance of all Goods shall be in writing, and MWM may revoke any acceptance in accordance with the UCC. MWM may reject any Goods for any reason, including after payment, and may return such Goods at Seller’s expense, in addition to other remedies of MWM hereunder, at law, and/or in equity, including as set forth in Section 5 and Section 6.
5. INDEMNIFICATION:  In addition to any other remedies available to MWM hereunder, at law, or in equity, all of which shall be cumulative, Seller shall indemnify and hold harmless MWM, its shareholders, officers, directors, successors, assigns, agents, representatives, affiliates, sureties, employees, and customers from and against all suits, claims, judgments, awards, demands, liabilities, losses, damages, liens of whatsoever kind or nature, and without limitation, all costs, expenses and attorney’s fees arising from or related to: (a) a breach by Seller or any subcontractors of MWM’s Order and/or the Agreement; (b) any default of any other contract or agreement between MWM and Seller; (c) Seller’s or its subcontractor’s performance hereunder, and/or any actions or omissions of such persons, including, but not limited to, which result in the death or injury to any persons or properties; and (d) failure to comply with any Applicable Laws. At MWM’s request, Seller shall defend at its own expense any litigation for which Seller is required to indemnify MWM, and MWM shall have the right to participate in such defense with counsel of its choice. MWM may, with its own counsel, assume such defense at Seller’s expense if Seller fails to assume such defense promptly at MWM’s request. MWM shall have no responsibility for, and Seller shall promptly pay, all claims for labor, services, materials and other items furnished in connection with Seller’s fulfillment of the Order. Seller expressly agrees that neither Seller nor any assignee, subcontractor, supplier, materialman, worker, or other person shall file or perfect any lien or other attachment against the Goods or any other property of MWM or MWM’s customers. Seller hereby expressly waives all rights to any such lien or attachment, and Seller agrees to obtain for MWM such express waivers from each such assignee, subcontractor, supplier, materialman, worker, or other person. Seller agrees to promptly discharge by bond or otherwise any such lien or attachment, and to indemnify and protect MWM and MWM’s customers against all losses and expenses in connection therewith. MWM may withhold all or any part of any payments to Seller, and pay such amounts directly to any person which MWM believes has not or will not be paid for labor, services, materials or other things furnished in connection with this order.
6. OTHER REMEDIES: If Seller, any facility or site through which the Goods are generated or produced, or all or any portion of the Goods are not in conformity with any warranties, the Order, these Terms, or the Agreement, or the Goods vary in quality from the description, specifications or warranties for the Goods or are otherwise defective for any reason, at MWM’s option and in addition to any other rights and remedies of MWM hereunder or at law and/or equity, MWM may take any or all of the following actions: (a) reject or revoke acceptance as to the entire load or lot, or any portion thereof; (b) at Seller’s risk and expense, hold the Goods or any portion thereof for Seller, or return such Goods or any portion thereof to Seller; (c) require a credit or refund for such Goods, or require replacement Goods as MWM may direct in its sole discretion; (d) undertake promptly to cure any defects at Seller’s risk or expense; and/or (e) retain such Goods with an equitable adjustment of price. The amount of such credit, refund, or other adjustment to price may be determined by MWM as the unit price for such Goods multiplied by the weight of any nonconforming Goods and/or foreign objects delivered with the Goods, or alternatively, MWM may adjust the price for the Goods in accordance with prior practices and/or industry standards. In addition to and without limiting any other remedies of MWM, MWM shall be entitled to offset and deduct any claims for monies due or to become due from MWM from the payment of the purchase price or any unpaid balance thereof with respect this or any other Order or any other amounts owed to Seller in connection with this Agreement or otherwise by MWM or any of its affiliates. Seller shall pay (and to the extent paid by MWM, shall reimburse MWM) for all expenses for handling, inspection, and return of defective Goods or Goods not in compliance with such warranties, which shall include, but not be limited to, all costs associated with removal, replacement, transportation, and the cost of substitute Goods. MWM’s acceptance of any Goods not in compliance with MWM’s order or these Terms shall not constitute a waiver of MWM’s rights with respect to any Order or future Orders or deliveries. Seller expressly assumes all risks of loss to Goods returned by MWM while such Goods are in transit. No waiver by MWM of a breach of any provision hereof shall constitute a waiver of any continuing or future breach of such provisions or of any other provision hereof.  In no event shall MWM be liable for any failures, breaches, or delays due to a cause beyond MWM’s reasonable control, and in no event shall MWM be liable for any incidental, consequential, special, or punitive damages. All remedies set forth in the Agreement are in addition to, and not in lieu of, any additional remedies available at law or in equity, including as provided by the UCC. MWM may exercise any of the rights and remedies available to it, and may recover attorneys’ fees and other litigation expenses if MWM prevails in any action to enforce the Agreement.
7. CHANGES: No amendment, modification, or recission of any Order and/or the Agreement, nor any waiver or release of any provisions of the Agreement, shall be effective unless in writing signed by MWM. Any approved modified Order will automatically incorporate the unmodified terms of the Order and the Agreement. MWM may change specifications, method of shipment, quantities, delivery schedules, and may delay or suspend shipments, upon written notice to Seller. If the cost or time required for furnishing the Goods is increased or decreased as a result of any change so ordered, the price or time for delivery, or both shall be increased or decreased by the amount of any increase or decrease resulting directly from such change, however no change shall be allowed either in delivery schedule or price unless Seller notifies MWM in writing within five (5) days from Seller’s receipt of the change, such claim is not prohibited by other provisions of this Agreement, and MWM accepts in writing such changed terms. Upon receipt of any change notice, Seller agrees to proceed diligently in the performance of MWM’s Order as changed, and nothing in this Section 7 shall entitle Seller to stop or delay performance with respect to MWM’s Order. Seller shall make no changes to the Goods, including any materials, composition, specifications, location, or processes, without providing to MWM at least ninety (90) days advanced written notice, and MWM must approve all such changes in writing.
8. ASSIGNMENT: Seller shall not assign MWM’s Order or Agreement, nor delegate or subcontract any rights or obligations of Seller under MWM’s Order or the Agreement, or any of the work to be done hereunder, in each case without MWM’s prior written consent, to be given in MWM’s sole discretion. Any assignment or subcontract not consented to by MWM shall be null and void, and shall constitute a breach of this Agreement. If Seller is receiving the Goods from a manufacturer or other producer, Seller shall require compliance with all the provisions of the Agreement by such person(s), and Seller agrees to pass through to MWM any warranties of such persons with respect to the Goods. Despite any such assignment, each of Seller and its assignee shall remain responsible for the obligations pursuant to Sections 3, 5, and 6 hereof. In the event of any change of ownership or control of Seller, any sale of substantially all of the assets of Seller, or any merger, consolidation, or other change resulting by operation of law, MWM reserves the right to terminate any or all Orders and/or the Agreement.
9. CONFIDENTIALITY: Seller agrees that all documents, materials, or other information furnished by MWM shall be the property of MWM, be held in custody for MWM, and be returned to MWM upon request. Seller shall keep confidential, and shall not use or disclose for any purpose except for Seller’s performance of an Order, all such materials and all other proprietary information of MWM, and shall not make or permit copies to be made except with MWM’s written consent. Neither Seller nor any other person may decompile, duplicate, reverse engineer, make modifications or inventions to, or create derivative works of, any of such information of MWM, and no licenses are granted to Seller with respect thereto. At the request of MWM, all copies of MWM’s information in Seller’s possession or control shall be delivered to MWM, and Seller shall make no further use either directly or indirectly of any such item or any information derived therefrom. The provisions of this Section 9 shall indefinitely survive the completion or termination of all Orders and the Agreement.
10. TERMINATION: Without prejudice to any rights of MWM, MWM may, for its convenience, terminate any Order in whole or in part at any time by written notice to Seller. MWM may also terminate the whole or any part of an Order for any breach or failure to perform by Seller of any of the terms and conditions of the Order, or upon the occurrence of any of the following events, each of which shall also constitute a default hereunder: (i) if Seller fulfillment of the Order is delayed or is beyond the time specified, or (ii) if Seller fails to perform any other provisions of the Order, fails to comply with any provisions of the Agreement, or breaches any representation or warranty, or (iii) if Seller becomes insolvent or the subject of any proceedings under any Applicable Law relating to bankruptcy or relief of debtors, including, but not limited to, an assignment for the benefit of creditors, or a receiver is appointed for Seller. Upon termination, Seller shall, to the extent and at the time specified, stop work and related activities for such Order. MWM shall have no liability for cancellation charges or for any amount other than the unpaid amount of the agreed price for Goods delivered to and accepted by MWM prior to termination. In the event of any such termination for default, MWM may, in addition to any other remedies, procure upon such terms, and in the manner as it may deem appropriate, Goods similar to the Goods ordered, and Seller shall be liable to MWM for all costs of such procurement. Further, upon any termination, Seller shall protect all property in which MWM has or may acquire interest, and shall transfer and make delivery to MWM of all available conforming Goods (if desired by MWM). MWM’s rights of termination for default set forth above shall be in addition to any other rights and remedies of MWM hereunder, or at law or in equity.
11. GENERAL PROVISIONS: All purchases and sales of Goods, Orders, these Terms, and the Agreement, and any and all claims arising in relation thereto, shall be governed by the laws of the State of Ohio, regardless of principles of conflicts of law. The applicability of the UN Convention on Contracts for the International Sale of Goods is hereby expressly waived by the parties and it shall not apply to the terms and conditions of the Order or the Agreement. Any action arising from or relating hereto shall be instituted and litigated in any federal or state court located in Montgomery County, Ohio, and the parties hereby irrevocably consent to such jurisdiction. Time is of the essence in the performance of all of Seller’s obligations under MWM’s Order and the Agreement. MWM and Seller shall at all times be independent contractors, and no other relationship is created or construed. The provisions of this Agreement shall bind and inure to the benefit of the parties hereto and their respective permitted successors and assigns. MWM’s failure in any one or more instances to require the performance of any term or condition in the Agreement shall not act as a waiver of MWM’s right to insist on strict performance in the future. If any provision of the Agreement is determined to be invalid, illegal, or unenforceable, such determination shall not render the other provisions of the Agreement invalid, illegal or unenforceable.