Terms and Conditions

I. STANDARD TERMS AND CONDITIONS OF SALE

The Standard Terms and Conditions of Sale set forth below shall apply to all quotations and offers made by and purchase orders accepted by ISM Enterprises (hereinafter “ISM”):

ANY DIFFERENT OR ADDITIONAL TERM, WHETHER OR NOT MATERIAL, PROPOSED BY THE BUYER IN ANY PURCHASE ORDER OR OTHERWISE IS HEREBY OBJECTED TO. THIS IS NOT AN ACCEPTANCE OF ANY PRIOR OFFER, NOR IS IT A CONFIRMATION OF ANY PRIOR ORAL DISCUSSION. ISM will sell to the Buyer the products described in its product quotation subject to the following Terms and Conditions:

1. ACCEPTANCE:

Acceptance by ISM of the Buyer’s order is expressly conditioned upon Buyer’s agreement to all of the Standard Terms and Conditions of Sale set forth herein and any inconsistent or additional terms contained in the Buyer’s purchase order, purchase contract or other document are hereby rejected. The Standard Terms and Conditions of Sale contained herein shall not be modified other than in a single writing executed by the Buyer and ISM. Such Standard Terms and Conditions of Sale constitute the entire agreement between ISM and the Buyer with respect to the subject matter contained herein and supersedes all prior oral or written representations and agreements.

2. PRICES AND TAXES:

The prices quoted by ISM are subject to change without notice due to metal price fluctuations. Unless otherwise stated in ISM’s sales quotation, prices quoted are F.O.B., ISM’s facility at 629 East Butler Road, Butler, PA 16002.The amount of any local, state or federal tax levied on the products referred to herein shall be added to the amount paid by and remain the sole responsibility of the Buyer. ISM reserves the right to revise payment terms if at any time ISM, acting in its sole discretion, deems the credit worthiness of the Buyer to be in question. The Buyer shall pay, to the extent permitted by law, all reasonable costs and expenses, including attorney fees and costs incurred by ISM in connection with any collection action for payment of the amounts due herein. If the products covered hereby are to be delivered to the Buyer over a specified period of time following the order date, or if the Buyer orders a specific quantity or estimated quantity of products based on an estimated need, the Buyer shall accept shipment of and pay for all products stated or estimated in such order and such payment shall be made in accordance with this Section 2 above, and in any event, on or before the end of such specified period of time, if any.

3. PACKAGING:

All products shipped in returnable containers are the property of ISM and the Buyer shall return any such containers to ISM. Buyer shall be liable for the failure to return such containers. Goods in containers are invoiced at their net weight.

4. DELIVERY:

Any dates or schedules which may be specified for the delivery of the products covered hereby have been stated only approximately and are estimated from the date of receipt of the Buyer’s order. ISM shall not incur any liability, either direct or indirect, nor shall any order be cancelled, because or as a result of any delays in meeting such dates or schedules. Company reserves the right to satisfy delivery of the products through partial delivery and part performance.

5. FORCE MAJEURE:

ISM shall in no event be responsible or liable for any delays or failures in manufacture or delivery due to any cause or condition beyond the control of ISM, including, without limiting the generality of the foregoing, strikes or other labor difficulties, fire, floods, inability to secure transportation facilities, actions of the elements, shortage of materials or equipment, riots or other civil commotion, and war.

6. PRODUCT SELECTION AND SUITABILITY:

ISM shall not be responsible for how the products are used or installed and the product’s conformance with applicable Federal, state, local or foreign laws, rules, regulations, and ordinances. IN NO EVENT SHALL ISM BE RESPONSIBLE FOR ANY LOSS OR DAMAGE ARISING OUT OF THE BUYER’S IMPROPER SELECTION, MISAPPLICATION OR MISUSE OF A PRODUCT.

7. LIMITED WARRANTY:

ISM will repair or replace, at its discretion, any of the products which fail to meet the applicable specifications within ninety (90) days from date of shipment, provided that ISM’s warranty shall extend only to the original purchaser from ISM, provided further the Buyer notifies ISM in writing within thirty (30) days after the Buyer is aware of any such defect, and provided, finally, that ISM shall in no event be responsible for the cost of labor or other charges incurred by the Buyer in returning any of the products to ISM for replacement. No returns shall be made without prior written consent of ISM. ISM shall not be liable for repair or replacement under this paragraph for any product defect resulting from the misuse, improper selection or misapplication of the product.

8. EXCLUSION OF OTHER WARRANTIES:

EXCEPT FOR THE EXPRESS LIMITED WARRANTY SET FORTH ABOVE, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, WHICH APPLY TO THE PRODUCTS AND ISM HEREBY DISCLAIMS SAME. NO WARRANTIES OR REPRESENTATIONS AT ANY TIME MADE BY ANY REPRESENTATIVE OF ISM SHALL BE EFFECTIVE TO VARY OR EXPAND THE ABOVE-REFERENCED EXPRESS WARRANTY OR OTHER TERMS HEREOF.

9. LIABILITY LIMITATION:

In no event shall ISM be liable to the Buyer or to any third party for consequential, incidental, special or other damages of any kind resulting from or in any manner related to the products, their design, use, or any inability to use the same, including, without limitation, damages arising out of or in any manner relating to the delivery of the products or any delay with respect to their delivery, it being understood that the sole and exclusive remedy of the Buyer or any third party shall be the replacement or repair of defective products pursuant to the “LIMITED WARRANTY” provision hereinabove contained. IN NO EVENT SHALL THE MEASURE OF DAMAGES EXCEED THE PURCHASE PRICE ACTUALLY PAID BY THE BUYER FOR THE PRODUCTS. Should the products prove so defective, however, as to preclude the remedying of warranted defects by repair or replacement, the Buyer’s sole and exclusive remedy shall be the refund of the actual purchase price paid by Buyer to ISM upon return of the products to ISM.9. LIABILITY LIMITATION:

In no event shall ISM be liable to the Buyer or to any third party for consequential, incidental, special or other damages of any kind resulting from or in any manner related to the products, their design, use, or any inability to use the same, including, without limitation, damages arising out of or in any manner relating to the delivery of the products or any delay with respect to their delivery, it being understood that the sole and exclusive remedy of the Buyer or any third party shall be the replacement or repair of defective products pursuant to the “LIMITED WARRANTY” provision hereinabove contained. IN NO EVENT SHALL THE MEASURE OF DAMAGES EXCEED THE PURCHASE PRICE ACTUALLY PAID BY THE BUYER FOR THE PRODUCTS. Should the products prove so defective, however, as to preclude the remedying of warranted defects by repair or replacement, the Buyer’s sole and exclusive remedy shall be the refund of the actual purchase price paid by Buyer to ISM upon return of the products to ISM.

10. CANCELLATION OR CHANGES OF ORDERS:

No orders may be withdrawn or cancelled by the Buyer, nor may they be deferred when ready, unless ISM shall first be paid a cancellation or deferral charge of a reasonable amount acceptable to ISM. In the event the Buyer shall request reasonable changes in its order after receipt thereof by ISM, the Buyer shall be responsible for all charges reasonably assessed by ISM with respect to such changes. In no event shall the Buyer request unreasonable changes with respect to any of the terms of any order, including but not limited to changes with respect to quantity and delivery dates. The reasonableness of a requested change shall be solely determined by ISM using its reasonable discretion.

11. RETURN OF PRODUCTS:

The Buyer may return any allowed product in the original package and in a non-objectionable condition only with ISM prior written consent.

12. NO PROTECTION FROM CLAIM OF INFRINGEMENT:

ISM makes no representation or warranty that the delivery or subsequent use of the products ordered shall be free of the claim of any third party by way of infringement.

13. SECURITY INTEREST:

The Buyer grants to ISM a purchase money security interest under Pennsylvania law in the products covered hereby and any proceeds thereof resulting from the resale of the products until full payment is received, with respect to any sales on open account. The Buyer hereby authorizes ISM to file any and all court and other documents to establish and maintain such security interest.

14. APPLICABLE LAW AND FORUM:

The terms and conditions applicable to any sale of goods by ISM shall be determined and construed in accordance with, and shall be governed by, the laws of the State of Pennsylvania, excluding its conflict of law principles, and Buyer and ISM agree to submit to the exclusive jurisdiction of either the Butler County Court of Common Pleas or the U.S. District Court for the Western District of Pennsylvania for purposes of resolving any dispute or claim arising in connection with said transaction(s).

15. MISCELLANEOUS:

These Standard Terms and Conditions of Sale contain the entire agreement and understanding of the parties and merge and supersede all prior discussions, agreements and understandings of every nature between the parties covering the products. These Standard Terms and Conditions of Sale shall not be amended except in a writing signed by both parties. Failure, delay, or any partial exercise by either party of any right, power, or privilege available to such party hereunder shall not operate as a waiver, or preclude further exercise by such party of any other right, power, or privilege. If any provision or any portion of these Standard Terms and Conditions of Sale are construed to be illegal, invalid or unenforceable, such provision or portion thereof shall be deemed stricken and deleted from these Standard Terms and Conditions of Sale to the same extent and effect as if it were never incorporated herein, but all other provisions of these Standard Terms and Conditions of Sale and the remaining portion of any provision that is construed to be illegal, invalid or unenforceable in part shall continue in full force and effect. The obligations and rights of the parties with respect to an order of products hereunder shall not be delegated or assigned by either party without the prior written consent of the other party. Any notice or other documents to be given or delivered hereunder by any party to any other party shall be in writing and shall be delivered personally or sent by certified mail, postage prepaid return receipt requested, or by a nationally recognized overnight courier service, to the respective addresses set forth on ISM’s quotation. Each party is acting as an independent contractor and not as an agent, partner, or joint venture with the other party for any purpose. Neither party shall have any right, power, or authority to act or to create any obligation, express or implied, on behalf of the other party.

II. WEBSITE USE TERMS AND CONDITIONS

This website (the “Website”) is owned and operated by ISM Enterprises, (“ISM”). The below-stated Website Use Terms and Conditions (“Website Use Terms and Conditions”) are the terms and conditions that control use of this Website.

ISM reserves the right to change these Website Terms and Conditions from time to time. Any changes to the Website Use Terms and Conditions will be in writing and posted on the Website. The date of the latest changes will be indicated at the top of the document. You are advised to check the Website Use Terms and Conditions periodically for updates. Continued use of this Website following the posting of changes will mean that you agree to be bound by these changes.

IF YOU DO NOT AGREE WITH THESE WEBSITE USE TERMS AND CONDITIONS, YOU ARE NOT GRANTED PERMISSION BY ISM TO ACCESS OR OTHERWISE USE THIS WEBSITE.

Title

A user of this Website shall use information acquired through the Website solely for user’s own informational purposes. Unless expressly provided in these Website Terms and Conditions, ISM does not grant any express or implied right(s) to you under any patent(s), copyright(s), trademark(s), or trade secret information through the Website. Accordingly, unauthorized use of any material contained on this Website may violate copyright laws, trademark laws, trade secret laws, the laws of privacy and publicity, and other regulations and statutes. All content (“Content”) included on this Website, such as text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, is the property of ISM and is protected by United States and international copyright laws. The compilation of all content on this Website is the exclusive property of ISM and protected by U.S. and international copyright laws. All software used on this Website is the property of ISM or its software suppliers and protected by United States and international copyright laws. Content included on this Website, such as text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, is Copyrighted by ISM 2002. All rights reserved. Limited permission to reproduce Content is granted, provided that (1) the above copyright notice appears on all copies; (2) use of the Content is for informational use only; (3) the Content is not modified in any way; and (4) no graphics available from this Internet Website are used separate from accompanying text.

Trademarks

ISM and other marks indicated on our Website and our packaging are registered trademarks of ISM, or ISM’s affiliates in the United States and other countries. ISM’s graphics, logos, page headers, button icons, scripts, and service names are trademarks or trade dress of ISM, or its affiliates or subsidiaries. ISM’s trademarks and trade dress may not be used in connection with any product or service that is not related to ISM, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits ISM or its affiliates. All other trademarks not owned by ISM, its affiliates or its subsidiaries that appear on this Website are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by ISM, affiliates, or its subsidiaries.

Prohibited Conduct

ANY COMMUNICATION OF MATERIAL YOU TRANSMIT TO THE WEBSITE BY ELECTRONIC MAIL OR OTHERWISE, INCLUDING ANY DATA, QUESTIONS, COMMENTS, SUGGESTIONS OR THE LIKE IS, AND WILL BE TREATED AS, NON- CONFIDENTIAL AND NON-PROPRIETARY. Anything you transmit or post may be used by ISM for any purpose, including, but not limited to, reproduction, disclosure, transmission, publication, broadcast and posting. Furthermore, ISM is free to use any ideas, concepts, know-how, or techniques contained in any communication you send to the Website for any purpose whatsoever, including, but not limited to, developing, manufacturing, and marketing products using such information without incurring any obligation whatsoever to you, and by sending such communication, you waive all your rights thereto. The user of the Website is responsible in full for the content and accuracy of all information that he or she sends to ISM and for ensuring that the rights of third parties are not prejudiced.

Links to Other Websites

This Website may provide hyperlinks to other Websites on the internet. The other websites so linked have not been reviewed by us and are maintained by third parties over which we exercise no control. We expressly disclaim any responsibility for the i) content or accuracy of information contained on such linked websites; ii) quality of any product or service provided by or advertised by any linked website. We neither endorse nor make any representation regarding any linked website.

Disclaimers regarding information provided on the Website

The conditions of your use and application of technical assistance and information (whether verbal, written or by way of production evaluations), including any suggested formulations and recommendations, are beyond our control. Therefore, it is imperative that you test our products, technical assistance and information to determine to your own satisfaction whether they are suitable for your intended uses and applications. This application-specific analysis at least must include testing to determine suitability from a technical as well as health, safety and environmental standpoint. Such testing has not necessarily been done by ISM. All information is given without warranty or guarantee. It is expressly understood and agreed that the customer assumes and hereby expressly releases ISM from all liability, in tort, contract or otherwise, incurred in connection with the use of our products, technical assistance and information. Any statement or recommendation not contained herein is unauthorized and shall not bind ISM. Nothing herein shall be construed as a recommendation to use any product in conflict with patents covering any material or its use. No license is implied or in fact granted under the claims of any patent. ISM will endeavor to provide accurate and up-to-date information on the Website; however, because of time lags in synchronizing the information on the Website with data in other ISM information systems, the information and services available on this Website may include inaccuracies or typographical errors. ISM reserves the right to amend or supplement the Website at any time and without prior notice. ISM will not be liable for problems arising out of the interaction between this Website and the local hardware and/or software you use to access the Website. ALL SUCH INFORMATION AND SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. IN NO EVENT SHALL ISM BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THIS WEBSITE OR WITH THE DELAY OR INABILITY TO USE THIS WEBSITE, EVEN IF ISM HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. ISM makes no warranties, express or implied, that the using of this Website does not infringe any patent of any third party.

Governing Law

You agree with ISM that these Website Use Terms and Conditions shall be governed by Pennsylvania law and that by clicking to accept these Website Use Terms and Conditions you are entering into a legally binding agreement with ISM. Any disputes regarding these Website Use Terms and Conditions shall be heard by the Pennsylvania state courts for Butler County, Pennsylvania or U.S. District Court for the Western District of Pennsylvania, and each party consents to the personal and exclusive jurisdiction of such courts. The content found on this Website is controlled and published on this Website by ISM from its offices in Butler, Pennsylvania, USA. ISM makes no representation that materials in the Website are appropriate or available for use in other locations, and access to them from territories where any of the contents of this Website are illegal is prohibited. Those who choose to access this Website from other locations do so on their own volition and are responsible for compliance with applicable local laws.

No Waiver

Failure to insist on strict performance of any of the Website Use Terms and Conditions of this Agreement will not operate as a waiver of any subsequent default or failure of performance.

Severability

If any part of these Website Use Terms and Conditions is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Website Use Terms and Conditions shall continue in effect.