PRODUCT SUPPLY AND STORAGE TANK AGREEMENT STANDARD TERMS AND CONDITIONS

A. During the Term of this Product Supply and Storage Tank Agreement (the “Agreement”), if Buyer can purchase Product of equal quality and quantity, and for a like use, from a manufacturer located within the United States at lower prices than offered by Seller, either Seller shall from month to month, upon presentation by Buyer of satisfactory written evidence of firm offers at lower pricing, meet said lower prices during the time in which they continue to be offered, or Buyer will be permitted to secure the Product based on the competitive firm offer for so long as Seller fails to meet the lower price.

B. Prices are subject to change with written notification by Seller. Delivery of Product and risk of loss occurs when the Product is placed into the Storage Tanks(s) at the Facility. Delivered volumes are those amounts placed into the Storage Tank(s).

C. Any amounts owed by Buyer to Seller and not paid when due shall bear interest at the rate of 1½% per month, but not more than the amount allowed by law, on the unpaid balance from the original due date of the invoice until paid. Buyer shall also be liable to Seller for Seller’s reasonable costs of collection incurred in collecting any amounts owed by Buyer, including reasonable attorneys’ fees at trial, on appeal and on petition for review. Buyer may not set off any charges or amounts owed by Seller without the express written consent of Seller. If Buyer fails to make payments when due, or if Seller determines in its sole discretion that Buyer’s financial condition does not warrant the extension of credit,  or if Buyer files a voluntary petition or is the subject of any such filing under any Federal or state bankruptcy or insolvency laws, or is adjudicated bankrupt, is declared insolvent or transfers assets for the benefit of creditors, Seller may take any or all of the following actions, in addition to any other action permitted by law: request reasonable assurance from Buyer, terminate the Agreement, or refuse or suspend deliveries under this Agreement except upon receipt of prepayment of cash or Buyer providing security satisfactory to Seller.

D. Buyer grants Seller a purchase money security interest or similar security interest in the Product(s), and in Buyer’s proceeds therefrom, until Seller receives the full purchase price paid in cash. On request, Buyer shall execute and deliver or cause to be executed and delivered, to Seller, any and all documents or finance statements which the Seller will reasonably require to perfect and/or protect Seller’s security interest in the Product(s) or proceeds, and its ownership interest in the Storage Tank(s). Buyer grants Seller authority, and appoints Seller to act as its agent, to execute and complete any such notices or filings in Buyer’s name. The buyer shall do all things reasonably necessary to protect the title of Seller to the Storage Tank(s) and shall keep the Storage Tank(s) free and clear of all liens, security interests and encumbrances.

E. When in the opinion of Seller, it is experiencing a period of shortage of supply of a Product, Seller may allocate its available supply among any or all of its various customers upon such basis as it shall deem reasonable. Seller shall notify Buyer of the short supply status and Seller shall have no liability for failure to deliver the agreed or ordered quantity of Product during the period of short supply.

F. NORTHSTAR may remove the Storage Tank(s) at any time in the event that it determines, in its sole discretion, that Buyer is not properly maintaining or protecting the Storage Tank(s), or that Buyer is not purchasing Product(s) as required in this Agreement, and in any event upon termination or expiration of this Agreement.

G. Upon termination or expiration of this Agreement for any reason, at its own expense, Buyer shall either (i) purge and clean the Storage Tank(s) of all Product(s) and residue and return them to NORTHSTAR freight prepaid, or (ii) permit NORTHSTAR free access to clean and remove the Storage Tank(s) at Buyer’s expense and obligation to pay for reasonable transportation, pump-out, disposal costs and any other costs reasonably incurred by NORTHSTAR in connection with the cleaning, removal and transportation of the Storage Tank(s).

H. Buyer is responsible for retaining personnel with sufficient technical skill and training to properly handle, set up, operate, maintain and use the Storage Tanks(s) and the Product(s). NORTHSTAR shall not be liable for, and hereby disclaims responsibility for, advice provided by any of its personnel with respect to the Storage Tank(s) or the Product(s). It is expressly understood that any technical advice furnished by NORTHSTAR is given gratis and as a commercial courtesy, and NORTHSTAR assumes no obligation or liability for the advice given or results obtained, all such advice being given and accepted at Buyer’s sole assumed risk.

I. Product Limited Warranty. Seller makes no representation or warranty of any kind whatsoever, either expressed or implied, except that Product meets any applicable specifications set out in the Agreement. Failure of Buyer to give Seller notice of a Product-related claim or defect within ten (10) days from delivery shall constitute a waiver by the Buyer of all claims in respect of such Product(s). Product shall not be returned to Seller without Seller’s permission. No Product related claim will be valid after goods have been processed in any manner. Seller’s sole responsibility and liability for any breach of this Product warranty is, at its option, to either replace the Product or refund the purchase price following notice.

J. Storage Tank Limited Warranty. Northstar warrants that the Storage Tank(s)s is/are suitable for use in storing the Product(s) in accordance with the manufacturer’s specifications and on the condition of Buyer’s compliance with the requirements of this Agreement and Buyer’s exercise of good commercial practices in the use and storing of the Product(s). NORTHSTAR does not accept any liability, and Buyer agrees that NORTHSTAR shall not be liable, for damages to persons and property, resulting from anyone (including Buyer or Buyer’s agents), other than for damages directly caused solely by NORTHSTAR’s improper repair or mishandling of the Storage Tank(s). Seller’s sole responsibility for any breach of this Storage Tank warranty is to use commercially reasonable efforts to maintain and repair the Storage Tank(s) following notice.

K. NORTHSTAR makes no other warrantIES of any kind EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT AND excludes and disclaims all other express and implied warranties, including any implied warranties of fitness for a particular purpose, merchantability and noninfringement.

L. Buyer’s sole recourse for any defects, faults, failures. or liability for the Storage Tank(s) shall be through the manufacturer’s warranty for the Storage Tank(s), if any, to the extent such warranty is in effect and applicable. NORTHSTAR agrees to pass through all such third-party warranties as may be allowed by the manufacturer. The buyer agrees to assert any warranty claims only against the manufacturer of the Storage Tank(s) and agrees not to assert any such claim against Northstar.

M. Buyer assumes complete responsibility for, and agrees to defend and indemnify Northstar (together with NORTHSTAR’s owners, shareholders, members, officers, directors, agents, contractors, and employees) against all claims, losses and adverse results, including damage to and loss of property and injury to or death of persons, arising out of the handling, storage or use of the Storage Tank(s) and Product(s), other than for third-party losses or damage due solely to Northstar’s negligence or misconduct, or supply of defective Product.

N. LIMITATION OF LIABILITY. NORTHSTAR SHALL NOT BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, STATUTORY, OR OTHER DAMAGES, OR LOSS, EXPENSES, PERSONAL INJURY OR PROPERTY DAMAGE, DIRECTLY OR INDIRECTLY ARISING FROM THE INSTALLATION, FILLING, HANDLING, MAINTENANCE, REPAIR, STORAGE, DELIVERY OR USE OF THE PRODUCT(S), OR BUYER’S USE OF THE STORAGE TANK(S), SEPARATELY OR IN COMBINATION WITH ANY OTHER PRODUCTS, EQUIPMENT OR MATERIALS, INCLUDING WITHOUT LIMITATION LOSS OF PROFIT, LOSS OF USE, OR DAMAGE DUE TO DELAY OR BUSINESS INTERRUPTION, WHETHER OR NOT NORTHSTAR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, AND REGARDLESS OF THE NATURE OF THE CLAIM (WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, TORT, MISREPRESENTATION, BREACH OF WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE).

 

O. LIMITATION OF DAMAGES. NORTHSTAR’S MAXIMUM AGGREGATE LIABILITY TO BUYER FOR ANY CLAIMS OR LIABILITY IN ANY WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE GREATER OF $500, THE PURCHASE PRICE FOR ANY DEFECTIVE PRODUCT, OR THE AMOUNT OF NORTHSTAR’S ACTUAL INSURANCE COVERAGE, IF ANY, COVERING THE CLAIM. IN NO EVENT WILL THE LIABILITY OF NORTHSTAR IN ANY WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE MAXIMUM AGGREGATE AMOUNT SET OUT ABOVE REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING WITHOUT LIMITATION INDEMNITY, TORT, CONTRACT, STATUTORY, AND ADMINISTRATIVE ACTIONS OR CLAIMS) AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

P. The parties shall be excused from performance of their obligations hereunder when and to the extent that such performance is delayed or prevented by any circumstances reasonably beyond their control or by fire, explosion, any strike or labor dispute, natural disaster, terrorist activity, or any act or omission of any governmental authority (including, in Buyer’s case, if its need for the Product(s) is reduced or eliminated, and in Seller’s case, if there is a shortage of Product or Seller is unable to obtain (on terms and conditions deemed economically and commercially practicable by Seller) any raw material (including energy), equipment or transportation. Should any of the foregoing conditions continue for a period of 30 or more days after its first occurrence, Seller may cancel all pending orders or terminate the Agreement without incurring any liability to Buyer. Additionally, if either party determines that it will incur economic hardship because of a change in circumstances from those that existed at the time the Agreement started, including but not limited to cost increases sustained by Seller (for example, costs related to raw materials, energy and transportation) which Seller cannot immediately pass through to Buyer, said party incurring economic hardship may terminate the Agreement with respect to future purchases if the other party cannot or will not agree to grant relief from such economic hardship within seven days from the date the party to incur such hardship requests relief.  If any Product price becomes controlled or restricted by any governmental decision, order, rule, or law, then Seller may, at any time after such control or restriction becomes effective, terminate the Agreement on written notice to Buyer.

Q. Buyer shall not assign this Agreement, in whole or in part, without prior written consent of NORTHSTAR. The Agreement shall be binding upon and inure to the benefit of Buyer and NORTHSTAR and their respective authorized assignees or successors.

R. Any action in any way arising under or related to this Agreement may be commenced in the courts of competent jurisdiction where the Facility is located, and the law of that jurisdiction will be the governing law for any dispute arising between the parties. In any action by NORTHSTAR against Buyer in any way related to this Agreement, or to protect its ownership rights in the Storage Tank(s), or to prevent the misuse or damage of the Storage Tank(s), the prevailing party will be entitled to an award of reasonable attorneys’ fees and litigation costs by the court at trial, on appeal, and on petition for review. The parties waive their right to a jury trial.

S. This Agreement represents the entire agreement between the parties concerning the Product(s) and the Storage Tank(s). These Terms and Conditions are incorporated into and a part of the Agreement. Buyer agrees that NORTHSTAR is not to be bound by any term or condition of Buyer in any written form of any kind (purchase order, acknowledgment or otherwise), and that any new or additional term by Buyer in any such form, or in any communication of any kind, oral or in writing, is rejected and of no effect. The use of any form by Buyer in connection with the purchase, use and possession of the Product(s) and Storage Tank(s) is for Buyer’s convenience only, and the terms and conditions of any such form are not a part of, and will not serve to modify or supplement, this Agreement. This Agreement only may be modified by a writing signed by both parties. If any provision in this Agreement is adjudicated to be invalid or unenforceable in any respect, the validity or enforceability of the remaining provisions of this Agreement shall not be affected.