1. OFFER AND ACCEPTANCE. These Terms and Conditions of Sale (“Terms”) apply to all sales of goods and related services (the “Products”) by North Central Companies, Inc. (“NCC”) to any customer (“Customer”) with notice of these Terms, however gained, including the use of NCC’s website. These Terms, together with those contained in any Sales Order Contract of NCC, constitute the entire agreement (“Agreement”) between the parties and shall prevail over any contradictory terms and conditions in any purchase order, acceptance acknowledgment, invoice, or other standard form used in the performance of this Agreement. Customer may use its standard business forms to administer purchases under the Agreement but use of such forms is for Customer’s convenience only and does not alter the provisions of the Agreement. NCC hereby expressly rejects any term or condition of any purchase order, confirmation or other document of Customer (whether before or after the date hereof) that is different from or in addition to the provisions of this Agreement, unless specifically agreed to in a writing signed by NCC. Customer’s acknowledgment of a Sales Order Contract or commencement of performance, including receipt or use of the Products, will constitute Customer’s acceptance of the terms and conditions of this Agreement. No course of dealing or usage of trade or actual course of performance shall be relevant to explain or supplement any terms used herein. No change in or modification to the Agreement shall be binding upon the parties, unless such alternative terms are part of a written agreement mutually negotiated and executed by the parties and that agreement expressly states that its terms will take precedence over these terms in the event of a conflict.

2. MATERIAL SPECIFICATIONS. If Customer requires that the Products meet certain specifications, Customer is responsible for providing such specifications to NCC. If Customer has not provided Customer specifications to NCC in writing prior to NCC’s issuance of NCC’s written Sales Order Contract, NCC makes no warranty that the Products will meet such specifications.

3. PRICE AND PAYMENT. Pricing for the Products is as stated in the Sales Order Contract and will be due and payable in U.S. Dollars within thirty (30) days of the Product ship date, as notified by NCC to Customer in writing. All prices are net of taxes, fees and other similar charges relating to the Products imposed by any municipal, state, federal, or other governmental taxing authority (collectively, “Tax”). Customer shall be responsible for all such Tax; provided that Customer shall not be responsible for any tax imposed on, or with respect to, NCC’s income, revenues, gross receipts, personnel or real or personal property or other assets. NCC shall collect applicable Tax unless Customer submits a valid tax exemption certificate, and indicates which Products are covered by it. Invoices issued by NCC will be paid by Customer regardless of disputes relating to other invoices; Customer agrees not to withhold or offset payments against any amount owing to Customer by NCC. If payment is not received when due, Customer shall pay interest on the past due amount at a rate of 1.5% per month, or the maximum legal rate, whichever is less, and NCC’s costs of collection, including reasonable attorneys’ fees, expenses and court costs, if any, incurred by NCC.

4. DELIVERY.
(a) Unless otherwise specified, the Products shall be packaged in accordance with NCC’s standard packing. In instances of bulk carload, tank truck or tank car shipments, shipper’s weights shall govern.
(b) All specified delivery dates are NCC’s best estimates. NCC will use commercially reasonable efforts to deliver Products in accordance with any agreed upon delivery schedules, but NCC shall not be liable for delays in delivery. NCC reserves the right to modify the delivery dates with notice to Customer. NCC reserves the right to ship in installments or multiple loads, or to group shipments of multiple orders, and in such event, NCC shall invoice, and payment shall be due in accordance with Section 3, for the quantity of Product actually shipped.
(c) All sales are FOB from the point specified in NCC’s Sales Order Contract (under U.C.C. shipping terms). Methods and route of shipment will be at the discretion of NCC unless Customer specifies otherwise in writing and NCC agrees in writing. Title and risk of loss shall pass to Customer when the Products are received by Customer at the FOB point specified in NCC’s Sales Order Contract.
(d) In the event Customer is unable to take delivery of any shipment or refuses delivery of a scheduled shipment, NCC will store the shipment at Customer’s sole risk and expense.
(e) Customer is responsible for checking all Products to ensure Products are delivered without damage and that the correct quantities and types of Products have been received.

5. WARRANTIES AND CLAIMS.
(a) NCC warrants that at the time and place of delivery, (i) if NCC provided specifications for Products or if no specifications are provided by Customer, then Products shall conform to NCC’s specifications; or (ii) if Customer provided specifications for Products in accordance with Section 2 above, then Products shall conform to the Customer’s specifications. NCC assumes no liability for any errors that are caused by the inaccuracy or incompleteness of Customer-supplied specifications. THE FOREGOING WARRANTIES ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, STATUTORY OR OTHERWISE. NCC EXPRESSLY DISCLAIMS WARRANTIES OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT OF ANY THIRD PARTY, AND WARRANTIES AS TO QUALITY OR CORRESPONDENCE WITH PRIOR DESCRIPTION OR SAMPLE. THIS WARRANTY ONLY APPLIES TO THE ORIGINAL PURCHASER OF THE PRODUCTS.

(b) Customer must provide NCC with timely written notice of alleged non-conforming Product. All claims must be received in writing by NCC within the earlier of ten (10) days after receipt of a shipment at the original shipment destination or the further processing or sale of the Product by Customer. Failure to make a claim within such period constitutes a waiver of all such claims by Customer and acceptance of the Products.

(c) NCC’s sole obligation and Customer’s sole remedy with respect to NCC’s nonconforming Product is, at NCC’s option, to replace any nonconforming Product, or credit Customer for the purchase price of any nonconforming Product in lieu of replacement. NCC must be given a reasonable opportunity to inspect alleged nonconforming Product, and, if requested by NCC, the nonconforming Product must be returned to NCC.

6. LIMITATION OF LIABILITY.
(a) NCC SHALL NOT HAVE ANY LIABILITY TO CUSTOMER OR ANY OTHER PERSON OR ENTITY FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES OF ANY DESCRIPTION, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR LOST PROFITS, WHETHER ARISING OUT OF WARRANTY (INCLUDING ANY IMPLIED WARRANTIES), BREACH OF CONTRACT, STRICT LIABILITY, NEGLIGENCE, OTHER TORT, OR OTHERWISE, AND REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER NCC HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT WILL NCC’S AGGREGATE LIABILITY ARISING IN CONNECTION WITH THE PRODUCTS EXCEED THE PURCHASE PRICE PAID BY CUSTOMER FOR THE PRODUCT WITH RESPECT TO WHICH SUCH CLAIM IS MADE, SUBJECT IN ALL CASES TO AN AFFIRMATIVE OBLIGATION ON THE PART OF THE CLAIMING PARTY TO MITIGATE ITS DAMAGES.
(c) No action may be brought by Customer against NCC after one (1) year after the cause of action has accrued, and Customer acknowledges and agrees that this provision shall be grounds for dismissal of any suit or claim asserted by Customer after such time.

7. INDEMNIFICATION. Customer agrees to defend, indemnify and hold NCC (including its affiliates and joint venturers) and its (and their) employees, agents, directors and officers (each an “indemnitee”) harmless for claims, damage, loss and expenses (including reasonable attorneys’ fees), imposed upon, incurred by or asserted against the indemnitee that are caused by, are attributable to, result from or arise out of (a) Customer’s or its agents provided specifications, including, without limitation, any resulting violation of intellectual property or proprietary rights; (b) Customer’s or its agents’ willful misconduct or negligence; (c) Customer’s use, handling, storage, sale or resale of the Products; or (d) Customer’s noncompliance with any law.

8. EVENTS BEYOND NCC’S CONTROL. NCC shall not be responsible if events beyond NCC’s control make it impossible or commercially unreasonable for NCC to perform, including so-called “Acts of God” or “force majeure” events, vendor or Manufacturer delays, and raw material shortages. In the event of the occurrence of any of the foregoing, NCC may distribute its available Products among its customers on such a basis as NCC deems fair and equitable, without liability to Customer.

9. GENERAL.
(a) Cancellation of any order by Customer will be subject to acceptance by NCC and to a restocking charge in accordance with NCC’s policy then in effect. If Customer is in default under any Sales Order Contract, including failure to pay invoices, NCC may cancel orders not yet shipped, suspend shipments of Product, require cash in advance of deliveries and/or reduce payment terms until all invoices are current and NCC receives adequate assurance of future performance. NCC’s rights are cumulative, are not exclusive, and are in addition to all other rights and remedies it may have at law or in equity.
(b) All non-public, confidential or proprietary information of NCC is confidential, solely for the use in performing hereunder and may not be disclosed, used or copied unless authorized in advance by NCC in writing.

(c) Failure by either party, at any time or from time to time, to require the performance by the other of any term hereof shall not constitute a waiver of such term or provision.
(d) The invalidity, in whole or in part, of any term herein, shall not affect any other term, each of which shall be enforced to the full extent permitted by law.

(e) Customer may not assign, delegate or transfer any rights or obligations governed by this Agreement without the prior written consent of NCC. This Agreement shall be binding on the parties and their permitted assigns, heirs, executors and personal representatives.
(f) Any notices required or permitted to be given hereunder shall be in writing and effective when received by a party at the address that each party has last notified the other by written notice. Notice shall be deemed properly given if sent by email with read receipt requested, facsimile, overnight courier mail, hand-delivered, or registered mail with return receipt.

(g) This Agreement shall be governed by and interpreted in accordance with the laws (without giving effect to conflicts of law principles) of the State of Minnesota and all disputes arising in connection with it shall be exclusively resolved in Minneapolis, Minnesota. The parties agree that the UN Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.