ADDITIONAL TERMS AND CONDITIONS OF PURCHASE

1. CUSTOMER. Customer is the person or entity shown on the face of this Invoice as the “Customer.”  No other person or entity may claim any rights under this invoice either through contract or as a third party beneficiary thereto.

2. BINDING AGREEMENT. Customer shall be bound by the terms of this Invoice whether or not signed by Customer unless Customer objects in writing specifying a term or terms involved. The failure of the Customer to object to the terms of the Invoice including but not limited to the identification of the materials shown on the face hereof, unit pricing, quantity or the total due, within ten (10) days after the invoice date shall be conclusively deemed to constitute acceptance by Customer of such terms. In addition to the foregoing, in the event the Customer receives this invoice prior to receipt of the materials, Customer shall be required to immediately notify Drawn Metal Tube of any dispute or discrepancy in the identification of the materials shown on the face hereof, unit price, quantity or the total due. The acceptance by Customer of the materials without such prior notification to Drawn Metal Tube of the dispute or discrepancy shall be considered a waiver by Customer of its claim and Customer shall be deemed to have accepted the materials in accordance with the terms of this invoice. The order covered by this Invoice may not be cancelled by Customer unless Drawn Metal Tube consents thereto in writing.

3. PAYMENT.  Payment is due upon receipt of this Invoice unless other payment terms are specifically indicated.  A finance charge at the rate of one and one-half (1.5%) percent per month (or the highest rate permitted by law, if lower) of the invoice balance will be charged if payment is received within thirty (30) days from the due date. In the event Customer intends to resell the materials, it is agreed that payment to Drawn Metal Tube shall not be dependent upon receipt of payment by Customer from its buyer.

4.  DELIVERY. Subject to the terms of this Invoice, Drawn Metal Tube will use its efforts to deliver the materials in an orderly and businesslike fashion following its receipt of the same from suppliers, etc.  Unless otherwise specified on the face of this Invoice, Customer agrees to accept delivery of the materials when tendered by Drawn Metal Tube. In those instances when Drawn Metal Tube does not have the materials in stock, it will schedule a delivery date (the date the materials are delivered to customer) following its receipt of the materials and Customer agrees to accept the delivery of the materials when tendered by Drawn Metal Tube.  In the event Customer requests a postponement of the delivery, Drawn Metal Tube, at its option, may (a) require Customer to pay the balance due on the originally specified payment date or (b) utilize the materials for other customers or other purposes. In the event Customer pays the balance due as set forth in (a) above, Drawn Metal Tube agrees to hold the materials for Customer for a period not exceeding thirty (30) days. In the event Customer does not pay the balance due as required; does not accept delivery of the materials within the thirty (30) day period after having paid for same; or Drawn Metal Tube elects to use the materials as set forth in (b) above, then Drawn Metal Tube, at its option, may refund the Customer any monies previously paid for the materials or reorder the materials for the Customer. Said reorder will be subject to availability and pricing schedules then in effect. However, nothing set forth above shall relieve Customer of the obligation to pay for the materials as specified in this Invoice. Any postponement of the delivery date specified by Drawn Metal Tube at the request of Customer is an accommodation by Drawn Metal Tube and does not relieve Customer of its obligations hereunder.  The delivery date specified by Drawn Metal Tube may be changed by it in accordance with the other provisions of this Invoice. Notification of a change in the delivery date shall be given to Customer orally or in writing. Time of delivery is not of the essence unless specifically set forth on face of this Invoice.

5.  INSPECTION. Customer shall inspect the materials within twenty-four (24) hours after delivery.  Unless Customer gives written notice to Drawn Metal Tube within ten (10) days from the delivery date specifying any damage or defect or other objection to the materials or shipment, it shall be conclusively presumed, as between Customer and Drawn Metal Tube that Customer has fully inspected and acknowledged that the materials comply with all the terms, conditions and specifications of the order and that Customer is satisfied with and has accepted the materials in such condition and repair.

6. RETURNS.  No returns will be accepted without prior return authorization from Drawn Metal Tube. All requests for returns must be made within thirty (30) days from the delivery date. Materials tendered for return (except those tendered for defects) must be in saleable condition and, in all cases, must be packed in original cartons and returned shipping prepaid to Drawn Metal Tube accompanied by a return authorization number clearly displayed on the shipping label. Regardless of shipping terms, materials returned shall remain at the risk of Customer until actually received by Drawn Metal Tube.

7.  WARRANTY. Materials will, at the option of Drawn Metal Tube, be accepted for return, repair or replacement, provided Customer gives written notice of the damage, defect or other objection to the materials, to Drawn Metal Tube within ten (10) days from the delivery date. Thereafter, Drawn Metal Tube shall have no further obligation. Drawn Metal Tube makes no representation that the materials are suitable for any specific use or purpose. In addition, Drawn Metal Tube shall not be responsible for mismarkings on shipments except to the extent that the same may be returned in accordance with the warranty contained herein. Drawn Metal Tube will be the sole judge of whether materials tendered for return are damaged or defective or whether Customer’s claim should be honored. Drawn Metal Tube will be given a reasonable opportunity to investigate any claim.

8.  LIMITATION OF LIABILITY. Drawn Metal Tube shall not be obligated to accept the tender of any materials for return, repair or replacement if Customer: (a) Makes or attempts to make alteration of any kind to the materials; (b) is negligent or does not use due care with regard to the materials; (c) Subjects the materials to abuse or other than ordinary use; (d) Permits any third party to do any of the foregoing; (e) Does not give notice of the existence or nature of any damage, defect or other objection to the materials within the time periods specified herein. In no event shall Drawn Metal Tube be responsible for payment of any incidental or consequential damage, including without limitation, loss of use, property or profit; personal injury; or liability to third parties.

9. DISCLAIMER OF WARRANTIES. THE OBLIGATIONS OF DRAWN METAL TUBE SPECIFIED IN PARAGRAPH 7 HEREOF SHALL BE THE TOTAL LIABILITY OF DRAWN METAL TUBE HEREUNDER.  DRAWN METAL TUBE MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, IN FACT OR IN LAW, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.

10. OWNERSHIP OF MATERIALS. The materials shall remain the property of Drawn Metal Tube until payment has been made in full (including all finance charges, if any), Drawn Metal Tube may enter Customer’s premises while an employee of Customer is present in order to retake possession of any materials for which payment in full has not bee received.

11. MATERIALS. Drawn Metal Tube, in its sole and absolute discretion, reserves the right to substitute comparable items for the materials itemized on the reverse side of this Invoice in accordance with industry or trade standards. The temper, surface quality and tolerances of materials shall conform to industry or trade standards, Drawn Metal Tube may make reasonable adjustments to the quantity ordered in conformity with industry or trade practices. Quantity variations of 10% shall be acceptable. Customer may not reject materials based upon quantity variations as indicated above nor may any Customer reject materials based upon comparable substitutions or variations in temper, surface quality or tolerances in conformity with industry or trade standards.

12. FORCE MAJEURE. Drawn Metal Tube shall not be liable to Customer for any delay or failure to perform its obligations with regard to the order covered by this Invoice or otherwise if the same arises from any cause beyond the reasonable control of Drawn Metal Tube (whether or not similar in nature to any of those hereinafter specified), including but not limited to labor disputes, strikes, other labor or industrial disturbances, inadequate transportation facilities, delays or interruptions in transportation, currency or price fluctuation, acts of God, floods, lightning, shortages of materials, rationing, utility or communications failures, malfunctions or disturbances, earthquakes, casualty, war, acts of the Public Enemy, riots, insurrections, embargoes, blockages or actions, restrictions, regulations or orders of any government agency or subdivision thereof.

13. SHIPMENT, LOSS OR DAMAGE. Customer hereby assumes all risk of loss and damage to the materials in accordance with the terms of delivery. Unless otherwise specified on the face of this Invoice, risk of loss or damage shall pass to the Customer upon the earlier of (a) delivery of the materials to a common carrier for transportation to Customer or (b) delivery of the materials to the Customer’s facility or other location designated by Customer. The method of shipment of the materials shall be at the discretion of Drawn Metal Tube unless otherwise specified on the face of this Invoice.

14. INDEMNIFICATION. Customer shall indemnify against and hold Drawn Metal Tube harmless from any and all claims, actions, suits, proceedings, costs, expenses, damages and liabilities, including attorneys’ fees arising out of, connected with or resulting from Customer’s possession, use or resale of the materials. Customer shall pay Drawn Metal Tube all costs and expenses, including attorneys’ fees incurred by Drawn Metal Tube in exercising any of its rights or remedies hereunder or in enforcing any of the terms, conditions or provisions of this Invoice.

15. ASSIGNMENT. The Customer may not assign its rights under this Invoice without the prior written consent of Drawn Metal Tube. Provided such consent is given, Customer agrees to remain fully liable for payment without exception until Drawn Metal Tube is paid in full by assignee or any other source. Notice of payment will be provided by Drawn Metal Tube within ten (10) days of its receipt.

16. TAXES AND DUTIES. In the event any taxes or duties are imposed or increased on the materials covered by this Invoice between the date hereof and the date of delivery, Customer agrees that that amount thereof shall be added to the price of the materials covered by this Invoice. Customer agrees to pay all applicable federal, state and local taxes upon or on account of the materials covered by this Invoice.

17. NOTICES. All notices required or permitted in connection with this Invoice shall be in writing and sent by registered or certified mail, return receipt requested with proper postage affixed. Notices shall be sent to the address for the party indicated on the face of this Invoice or to such other address which the party from time to time designated in writing. Notice shall be deemed given upon receipt.

18. ENTIRE AGREEMENT. There are no representations, promises, or warranties, covenants or undertakings other than those contained in this Invoice which represents the entire understanding between the parties.

19. MODIFICATION AND WAIVER. None of the terms of this Invoice shall be deemed to be waived or modified unless in writing and signed by the party against whom waiver or modification is sought. No waiver of any of the provisions in this Invoice shall be deemed a waiver of any other provision or a continuing waiver of that provision.

20. SUPERSEDING EFFECT. This Invoice shall be deemed to supersede any agreement entered into by the parties concerning the materials, or any prior or subsequent course of dealing, written or oral, or any trade usage, or any terms or conditions of Customer’s purchase order or other document received from Customer. This Invoice governs the transaction described herein exclusively and separately from any prior or subsequent transaction. In no event shall prior trade relations or customs between the parties operate to modify, enhance, define or contradict any term contained herein

21. SEVERABILITY.  If any provision of this Invoice is for any reason declared to be invalid, the validity of the remaining provisions shall not be affected thereby.

22. APPLICABLE LAW.  This Invoice shall be deemed to have been made in the State of New York and all matters pertaining to its enforcement and interpretation shall be governed by and construed in accordance with the laws of that State.  Any litigation relating to the terms of this Invoice or to a breach thereof or relating to the underlying transactions shall be in the State of New York, which shall be the exclusive jurisdiction.

23. PARAGRAPH HEADINGS. The paragraph headings of this Invoice are for convenience and reference only and in no way define, limit or describe the scope or intent of this Invoice nor in any way affect this Invoice.