STORAGE TANK AGREEMENT STANDARD TERMS AND CONDITIONS

A. 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 makes no other warranty of any kind and excludes and disclaims all other express and implied warranties, including any implied warranties of fitness for a particular purpose, merchantability and noninfringement. NORTHSTAR shall not be liable for damages to persons and property resulting from the negligence or misconduct of any person (including the Authorized Reseller, Buyer, or Buyer’s agents) other than for damages directly caused solely by NORTHSTAR’s improper installation, repair, or mishandling of the Storage Tank(s). The 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.

B. Buyer agrees to assumes complete responsibility for, and agrees to defend and indemnify Northstar (together with NORTHSTAR’s owners, members, shareholders, officers, directors, agents, contractors and employees) from any and all claims, adverse results, and losses, including damage to and loss of property and injury to or death of persons, arising out of the handling, storage or use of Storage Tank(s) and Product(s) other than for losses or damage due solely to Northstar’s negligent installation, maintenance or repair of the Storage Tank(s) or delivery of Products. The buyer’s obligations under this paragraph shall apply whether or not any Storage Tank(s) is/are handled, operated, stored, transported, set up, or used alone or in conjunction with other equipment.

C. LIMITATION OF LIABILITY. NORTHSTAR SHALL NOT BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, STATUTORY, OR OTHER DAMAGES, LOSS, EXPENSES, OR 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 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, NEGLIGENCE, INDEMNITY, STRICT LIABILITY OR OTHERWISE).

 

D. LIMITATION OF DAMAGES. NORTHSTAR’S MAXIMUM AGGREGATE LIABILITY TO BUYER FOR ANY CLAIMS OR LIABILITIES IN ANY WAY RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE GREATER OF $500 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 TORT, INDEMNITY, CONTRACT, STATUTORY, AND ADMINISTRATIVE ACTIONS OR CLAIMS) AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

E. 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) from NORTHSTAR or the Authorized Reseller.

F. Buyer shall do all things reasonably necessary to protect the title of NORTHSTAR to the Storage Tank(s) and shall keep NORTHSTAR’s property free and clear of all liens, security interests and encumbrances. NORTHSTAR may make any or all filings and recordations at its election to provide notice to interested parties and to protect NORTHSTAR’S interest in the Storage Tank(s) from efforts by third parties to assert a security interest, lien or claims against the property. Buyer grants NORTHSTAR authority, and appoints NORTHSTAR to act as its agent, to execute and complete any such notices or filings.

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. 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 assigns and successors. If any provision in this Agreement is invalid or unenforceable in any respect, the validity or enforceability of the remaining provisions of this Agreement shall not be affected.

J. 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 Tanks, or to prevent the misuse or damage of the Storage Tanks, the prevailing party will be entitled to an award of reasonable attorney’s 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.

K. This Agreement represents the entire agreement between the parties concerning the Storage Tank(s) and the subject matter of this Agreement. The buyer’s use and possession of the Storage Tank(s) is expressly limited to and conditioned on the acceptance of the terms of this Agreement, including these Terms and Conditions which are incorporated into and a part of the Agreement. By accepting delivery and installation of the Storage Tank(s), 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 use and possession of the 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.