TERMS AND CONDITIONS OF SALE FOR ACCUBRINE® AUTOMATED BRINEMAKER (“Equipment”)

1. TERMS TO GOVERN. The terms and conditions set forth herein shall constitute the sole terms and conditions of sale. No terms or conditions, other than those stated herein, whether contained in Buyer's purchase order or elsewhere, shall be binding on Seller unless agreed to in writing by Seller. Buyer’s acknowledgement without prompt written objection shall constitute an acceptance by Buyer of these terms and conditions.
2. TITLE/RISK OF LOSS. Title and risk of loss shall pass to Buyer at the time the Equipment is delivered to the Buyer.
3. PAYMENT AND CREDIT TERMS. Buyer shall pay Seller for the Equipment within thirty (30) days from the date of the invoice. Interest at the maximum rate permitted by law will accrue on all invoices unpaid as of the due date. All payments by Buyer shall be final 180 days after shipment of the Equipment and Buyer shall not have the right to audit payments or deduct future payments after such date. Notwithstanding anything else herein contained, the Seller reserves the right to modify payment terms or to allow no credit whatsoever to Buyer if, subsequent to the date of an order, the Seller determines that it cannot grant Buyer the credit terms which are specified herein. Buyer understands that this reservation is necessary to allow the Seller's credit department to have adequate time to review Buyer's credit status.
4. WARRANTY AND LIMITATION OF LIABILITY. Seller warrants that all Equipment furnished under any Purchase Orders issued hereunder shall be free from defects in material and workmanship for a period of one (1) year beginning after the completion date of installation and customer training, subject to Seller’s limited warranty statement, a copy of which is located at www.AccuBrine.com. Seller shall in no event be liable for incidental, special, or consequential damages (including lost profits) whether the claim is based on contract, tort, strict liability or any other theory and in no event shall damages exceed the purchase price of the Equipment.
5. OPERATION OF EQUIPMENT. Buyer shall be responsible for operation of the Equipment. Buyer shall operate the Equipment in a reasonably competent manner and in compliance with the operations manual for the Equipment.
6. EXCLUSIVE REMEDY. If upon delivery to Buyer the Equipment appears not to meet Seller’s limited warranty statement, Buyer shall immediately notify the Seller who shall have a right to inspect the Equipment. Buyer shall not return, repair or dispose of any Equipment that fails to meet the above warranty without Seller's written consent. Such consent shall not be unreasonably withheld. In the event Seller breaches the limited warranty statement, Buyer's sole and exclusive remedy and Seller's sole and exclusive liability shall be limited to repair of any defect in workmanship and repair or replacement of any defective part as set forth in the Seller’s limited warranty statement.
7. FORCE MAJEURE. Seller shall be excused for failure to deliver or delay occasioned by conditions beyond Seller’s reasonable control, including, but not limited to, Acts of God, fire flood, windstorm, acts of governmental authorities, strikes shortage of raw materials, breakdown, shortage or non-availability of transportation facilities or equipment or any similar event not within Seller’s control. Seller shall give notice to Buyer as soon as reasonably possible in the event of Force Majeure and shall work diligently to overcome such event.  If any event of Force Majeure persists for more than 90 days, Buyer may terminate this Contract.
8. INCREASES.  Any increase in applicable freight rates or taxes taking effect before the fulfillment of this Contract shall be for Buyer’s account.  Seller reserves the right to add energy and/or transportation related surcharges for Buyer’s account.
9. SHIPPING. Buyer shall furnish complete shipping instructions in sufficient time to enable Seller to perform its obligations hereunder. Seller shall not be obligated to make shipment in absence thereof.
10. DEFAULT. If Buyer (1) refuses to accept any shipment properly tendered hereunder, (2) fails to tender any payment hereunder when due, or (3) fails to perform in any other respect according to its obligations set out in the terms herein (each of which shall be a material breach of contract), Seller may treat such default as (a) a total breach of the entire Contract, and/or (b) partial breach of Contract.
11. TAXES. Buyer shall be liable for any taxes or other exactions levied by Federal, State or local authorities upon the sale, delivery, storage, consumption or transportation of the Equipment and if any such items are paid or required to be paid by the Seller, the amount shall be added to and become part of the price payable to the Seller for such Equipment.
12. TERMINATION FOR BREACH. If either party breaches any of its obligations under this Contract, the non-breaching party may give fifteen (15) day notice of termination, and if the breach has not been cured during the said 15-day period, this Contract shall terminate. In the event either party (i) files a voluntary petition in bankruptcy (ii) makes an assignment for the benefit of creditors; (iii) is adjudicated as bankrupt; (iv) becomes insolvent, the other party may terminate this Contract effective immediately. Termination, pursuant to this Section, while being in itself a remedy for breach, shall not preclude any other legal or equitable remedy which is available to the terminating party.
13. GOVERNING LAW:  This Contract shall be governed by the laws of the state of Minnesota and any action relating hereto shall be brought in federal/state court in Hennepin County, Minnesota.
14. EQUAL OPPORUNITY/UNION NOTICE. Seller is an equal opportunity employer and is a United States government contractor. Therefore, this Contract is subject to the rules and regulations imposed upon contractors and subcontractors pursuant to 41 C.F.R. Chapters 60 and 61. Unless this Contract is exempt by regulations issued by the Secretary of Labor, there is incorporated herein by reference the following: 41 C.F.R. 60-1.4; 41 C.F.R. 60-250.4 and 61-250.10 and 41 C.F.R. 60-741.4.
15. ASSIGNMENT. The rights and obligations under this Contract are not assignable by either party unless in writing and signed by the other party.

11/20/09