Forsman Farms, Inc. dba Nordsyn 

Terms and Conditions  

(Sale of Product / Performance of Services) 

1. Applicability. These terms and conditions ("Terms") are the only terms which govern the sale of goods and performance of services by Forman Farms, Inc. dba Nordsyn ("Nordsyn") to the customer ("Customer") identified on the accompanying Purchase Order, Quote for Purchase, Statement of Work or Service/Product Agreement between the parties (collectively, the "Sales Confirmation"). These Terms (collectively with the Sales Confirmation, the "Agreement") compromise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over Customer's general terms and conditions of purchase regardless whether or when Customer has submitted its purchase order or such terms. Fulfillment of Customer's order and/or request for services does not constitute acceptance of any of Customer's terms and conditions and does not serve to modify or amend these Terms. 

1. Sale and Cancellation. Pursuant to the Sales Confirmation, and subject to these Terms, Customer agrees to purchase, and Nordsyn agrees to sell, the equipment and product identified in the Sales Confirmation ("Product") to, and/or perform the services described in the Sales Confirmation ("Services") for Customer. No provision of the Agreement may be: (i) changed, altered or modified by Customer unless agreed to in writing in advance by Nordsyn; or (ii) cancelled or terminated by Customer except upon the prior written consent of Nordsyn and, in such event, Customer shall be responsible for paying Nordsyn's then-standard cancellation charges. 

1. Purchase Price. Customer agrees to purchase the Product and/or Services for the purchase price (the “Purchase Price”) specified in the Sales Confirmation. All federal, state, or local transfer, documentary, sales, use, excise, stamp, registration and other taxes or fees of any type due or payable in connection with the sale of the Product shall be paid by Customer, except income taxes of Nordsyn. If Customer fails to pay Nordsyn any part of the Purchase Price when due, interest shall accrue on the outstanding balance at the rate of one and one half percent (1.5%) per month, and shall be paid by Customer to Nordsyn in addition to the unpaid Purchase Price. The Purchase Price shall be payable according to the schedule specified in the Sales Confirmation. 

1. Product Terms and Conditions.  

1. Shipping; Risk of Loss. All pricing and amounts payable hereunder are on a F.O.B. shipping basis from Nordsyn’s facility at 225 Olsen Blvd Cokato, Minnesota. Provided Customer is current in its payments under the payment schedule specified in the Agreement, and is otherwise in compliance with the terms hereof, Nordsyn shall make the Product available for shipment to Customer according to the shipment schedule set forth in the Sales Confirmation. Responsibility for loss or damage to the Product shall reside with Nordsyn until such Product is picked up from Nordsyn’s manufacturing facility, at which point responsibility shall transfer to Customer.  

1. Customer Delay. Nordsyn shall not be liable for any delays directly or indirectly caused by Customer and/or any of its employees, contractors or vendors. Delay in delivery of any Product shall not relieve Customer of its obligation to accept remaining deliveries unless: (i) Nordsyn has failed to perform its material obligations under the Agreement; (ii) any material portion of the Product has not been made available for shipment within 30 days of the last shipment schedule date. If Customer fails or refuses to accept delivery of any Product within 4 days of the date Nordsyn and Customer have agreed for delivery of any Product (provided any such refusal or delay is not due to action or failure to or of Nordsyn) then Nordsyn may store the Product at Customer’s expense and risk in a warehouse on Nordsyn's (or its subcontractor’s or agents) premises or at an alternate location of Nordsyn's choosing and Customer shall immediately pay all handling, transportation and storage costs at the prevailing commercial rates upon submission of invoices thereof. 

1. Title. Title to Product shall pass to Customer free and clear of all liens and encumbrances, immediately upon Customer completing performance of all of its obligations and conditions specified in the Agreement, including payment in full of the Purchase Price, and all associated costs and expenses. Except for those rights specifically granted to Customer herein, transfer of title to Product shall not include the transfer of any Nordsyn IP. 

1. Product Warranty.  

1. Standard Warranty. Nordsyn warrants to Customer that all Product, including materials and equipment furnished as part of the Product, shall be new, of good quality, in conformance with the terms of the Agreement and all legal requirements, and will be free from defects in material and workmanship for 6 months from the date of shipment (the “Standard Warranty”). Any refurbished parts, if available, carry a warranty that such parts shall be of good quality and free from defects in materials and workmanship for a period of 90 days from shipment. All warranty claims must be submitted to Nordsyn within 15 days of discovery of defects within the warranty period, or shall be deemed waived. Notwithstanding any contrary provision or agreement, Nordsyn’s sole responsibility hereunder shall be to furnish replacements for such defective products or parts without charge F.O.B. its factory. This Standard Warranty shall not apply to: (A) any Product that has been subject to misuse, misapplication, neglect (including but not limited to improper maintenance and storage), accident, improper installation, modification (including but not limited to use of unauthorized parts of attachments), adjustment or repair; or (B) damage, loss, or diminution of or to any Product resulting from or related to normal wear and tear, or usage of wear parts. Identifiable items manufactured by others but installed in or affixed to Nordsyn’s Product are not warranted by Nordsyn. To submit a warranty claim on parts, Customer must notify Nordsyn in writing of the alleged warranty claim, obtain a return merchandise authorization ("RMO") from Nordsyn, and return the part to Nordsyn at Customer’s expense within 10 days of issuance of the RMO. Nordsyn will review the warranty claim, inspect the part, and notify Customer in writing of its findings. Notwithstanding any contrary provision or agreement, Nordsyn’s maximum liability for its Product, whether in contract, negligence, or strict liability in tort, is limited to the repair or replacement of the Product at issue, or the parts thereof. 

1. Exclusions. In addition to the exclusions set forth above, the Standard Warranty is inapplicable to and excludes: (A) any defects as to workmanship and materials in any product, components or parts not manufactured by Nordsyn or its affiliates or covered by the warranty of another manufacturer; (B) damage caused by accident, misconduct, misuse, or the negligence of Customer or any party other than Nordsyn, normal wear and tear, normal corrosion; (C) damage caused by disasters such as fire, flood, wind, lightning, electrical surge or power outage; (D) damage caused by Customer’s failure to follow all installation and operation instructions or manuals supplied by Nordsyn or to provide normal maintenance; (E) damage caused by unauthorized or improper installation of attachments, repairs or modifications; (F) damage caused by a product or component part which Nordsyn or its affiliates did not design, manufacture, supply or repair; and  (G) any other abuse or misuse by Customer or any third-party that is not Nordsyn. Nordsyn further excludes corrosion of stainless steel or other metals normally used in the fabrication of the Product from its warranty. Nordsyn is not liable for loss or damage due to: (I) corrosion from exposure to aggressive liquids or atmospheres; or (II) Customer’s failure to properly clean or care for the Product. 

1. Disclaimer. EXCEPT FOR THE STANDARD WARRANTY, NORDSYN MAKES NO, AND DISCLAIMS ALL, OTHER WARRANTIES WHATSOEVER WITH RESPECT TO THE PRODUCTS OR ANY OTHER EQUIPMENT, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. CUSTOMER AGREES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY NORDSYN, OR ANY OTHER PERSON ON NORDSYN'S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN THE AGREEMENT. ALL WARRANTIES HEREIN ARE LIMITED WARRANTIES COVERING ONLY MATERIAL SUPPLIED BY NORDSYN. No representative of NORDSYN has authority to waive, alter, vary or add to the terms hereof without prior approval in writing. 

1. Service Terms and Conditions. 

1. Excluded Services.  The Services provided under the Agreement specifically exclude the following, which at Customer’s option may be performed separately by Nordsyn at Nordsyn’s then-current rates: (i) repairs or damage caused by Customer negligence or misuse of the Services; (ii) repairs or damage attributable to the use of Services for other than the uses for which Services were designed; (iii) repairs required as a result of persons other than Nordsyn’s authorized representatives performing any maintenance, modification, or relocation of any equipment, accessories, custom or special products, modified units, or software necessary to Nordsyn’s performance of Services; (iv) repair or damages to Customer’s property (real or personal) necessitated by or related to accident, theft, unexpected loss, abuse, electrical power failure, flood, fire, lightning, wind damage, or corrosive environments; (v) repairs or service calls necessitated by third parties beyond the control of Nordsyn. 

1. Termination of Services. Notwithstanding any provision of the Agreement to the contrary, Nordsyn may terminate the Agreement for Services: (i) immediately upon an Event of Default; or (ii) for any reason and at any time upon thirty (30) days’ prior written notice to Customer and the refund of any Service Fee(s) paid to Nordsyn for unperformed Services. Customer agrees to provide Nordsyn written notice of any default of the Agreement to state the nature of the default. If Nordsyn does not cure the default within thirty (30) days, Customer may terminate that portion of the Agreement that is in default by giving Nordsyn thirty (30) days prior written notice.  

1. Disclaimer of Service Warranties. NORDSYN WARRANTS THAT SERVICES WILL BE PERFORMED IN A GOOD AND WORKMANLIKE MANNER CONSISTENT WITH INDUSTRY STANDARDS. EXCEPT FOR THE FOREGOING WARRANTY, NORDSYN MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY WARRANTY: (i) OF MERCHANTABILITY; (ii) OF FITNESS FOR A PARTICULAR PURPOSE; (iii) OF TITLE; OR (iv) AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. NO REPRESENTATIVE OF NORDSYN HAS AUTHORITY TO WAIVE, ALTER, VARY OR ADD TO THE TERMS HEREOF WITHOUT PRIOR APPROVAL IN WRITING. 

1. Limitation of Liability.  

1. No Consequential or Indirect Damages. IN NO EVENT SHALL NORDSYN OR ANY OF ITS EMPLOYEES, AGENTS, OFFICERS, MANAGERS, GOVERNORS, OWNERS, SUCCESSORS OR ASSIGNS BE LIABLE UNDER THE AGREEMENT OR THESE TERMS TO CUSTOMER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, INCLUDING ANY DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF USE, DATA, REVENUE OR PROFIT, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT CUSTOMER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

1. Maximum Liability. WITHOUT LIMITING THE PROVISION OF SECTION 6(a) ABOVE, IN NO EVENT SHALL NORDSYN’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT OR THESE TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED: (i) WITH RESPECT TO PRODUCTS, THE TOTAL AMOUNT PAID TO NORDSYN PURSUANT TO THE AGREEMENT: (ii) WITH RESPECT TO SERVICES THE TOTAL AMOUNT PAID TO THE NORDSYN PURSUANT TO THE AGREEMENT IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, OR $10,000.00, WHICHEVER IS LESS. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF CUSTOMER’S REMEDIES UNDER THE AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. The prior sentence limiting liability and damages is a material part of the Agreement, and Nordsyn would not have sold the Product or provided the Services on terms as favorable to Customer as set forth in the Agreement without Customer’s agreement to limit Nordsyn’s liability as provided above. 

1. EXCLUSIVE REMEDY. CUSTOMER’S SOLE REMEDY WITH RESPECT TO PRODUCTS SHALL BE THE STANDARD WARRANTY, AND NORDSYN’S SOLE LIABILITY SHALL BE COMPLIANCE WITH THE STANDARD WARRANTY. 

1. Indemnification. Customer shall indemnify, defend and hold harmless Nordsyn, its officers, managers, governors, employees, agents, affiliates, successors and assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, that are incurred by Indemnified Party or otherwise awarded against the Indemnified Party, arising out of any claim alleging: (i) breach or non-fulfillment of any representation, warranty or covenant under the Agreement by Customer, its employees or agents; (ii) any negligent or more culpable act or omission of Customer, its employees or agents (including without limitation reckless or willful misconduct) in connection with the performance of its obligations under the Agreement; (iii) bodily injury, death of any person or damage to real or tangible personal property caused by the negligent or more culpable acts or omissions of Customer, its employees or agents (including any reckless or willful misconduct; or (iv) any failure by  Customer to comply with any applicable federal, state or local laws, regulations or codes in the performance of its obligations under the Agreement.  

1. Governing Law; Jurisdiction. The Agreement and the parties’ actions thereunder shall be governed by and construed under the laws of the State of Minnesota, without giving effect to that State’s conflict of laws principles. The parties irrevocably agree: (i) to submit and consent to the exclusive venue and jurisdiction of courts of the State of Minnesota, in respect of the interpretation and enforcement of the provisions of the Agreement, and waive and agree not to assert as a defense in any action, suit or proceeding for the interpretation or enforcement of the Agreement that it is not subject thereto or that such action, suit or proceeding may not be brought or is not maintainable in said courts, that said dispute or action was brought in an inconvenient forum, or that the venue of the suit, action or proceeding is improper; and (ii) that service of process may be made in any manner permitted by the laws of the State of Minnesota or the federal laws of the United States in any such action, suit or proceeding against the parties. 

1. Dispute Resolution. Any dispute relating to the interpretation or performance of the Agreement shall be resolved at the request of either party through binding arbitration; provided however, nothing herein shall be construed to prohibit either party from seeking in any court of competent jurisdiction any injunctive relief to which it is entitled hereunder. The arbitration shall be conducted in Minneapolis, Minnesota in accordance with the then-existing rules of the American Arbitration Association. Judgment upon any award by the arbitrators may be entered by any state or federal court having jurisdiction. Both parties agree that this agreement to arbitrate is irrevocable. 

1. Confidential Information and Intellectual Property. In addition to any confidentiality and/or non-disclosure agreement between the parties, Customer agrees that the processes and/or equipment that it is purchasing from Nordsyn include valuable intellectual property, including but not limited to, patentable and unpatentable inventions, know how, confidential information and/or valuable Trade Secrets of Nordsyn (collectively, “Nordsyn IP”). As used herein, the term “Trade Secrets” shall mean all confidential and proprietary information disclosed by one party to the other relating to the whole or any portion or phase of any scientific, technical or non-technical data, design, pattern, process, formula, device, method, technique, compilation, program, software, drawing, plans, component list, or operating manuals relating to the Product. Under the terms and conditions hereof, and except as otherwise limited herein, Nordsyn grants to Customer a royalty-free, limited, non-exclusive license to Customer to use the Nordsyn IP limited to use by Customer of the Product or Services, and for no other purpose. Customer expressly agrees, by acceptance of Product and Service, that it shall keep confidential the Nordsyn IP as specified herein and use its commercially reasonable efforts to protect the Nordsyn IP unless Nordsyn notifies Customer in writing or a court determines (from which an appeal may not be taken) that such information is no longer confidential or a Trade Secret. The grant of this license to Customer shall continue to remain in full force and effect for so long as Customer continues to: (i) use the Product or subscribes to the Services; and (ii) remains in compliance with the terms of the Agreement. 

1. No Sub-Licensing. Customer agrees that it shall not assign, sub-license, or in any way transfer Customer’s license to the Nordsyn IP granted hereunder without the express written approval of Nordsyn.  

1. No Modifications. Other than in connection with the installation, repair, and commissioning of the Product, Customer shall not modify any Product or processes purchased from Nordsyn without the express, written approval of Nordsyn, which Nordsyn may withhold at its sole discretion. Whether or not Nordsyn allows any modification of equipment, the Product or process, any and all such modification to equipment, the Product and/or process, regardless whether made by Customer or jointly with Nordsyn or a third-party, shall become the intellectual property of Nordsyn and, except with respects to such licensing and royalty-free rights and interests granted hereunder, Customer hereby assigns all its right, title and interest in and to such modifications to Nordsyn and agrees to cooperate with Nordsyn to execute all documents and take such actions as are necessary to evidence the transfer. This cooperation provision shall survive any termination or expiration of the Agreement. 

1. Replication and Reverse Engineering Prohibited. Customer shall not directly or indirectly attempt to replicate or reverse engineer (or assist any third-party in replicating or reverse engineering) any software, electronics, process, equipment or Product and shall not seek to produce (or assist any third-party in producing) any similar or competing equipment or process that is based in whole or part on the Product or processes or based on concepts embodied in the Product or processes. 

1. Equitable Relief. Customer recognizes that any breach of the terms of this Section 10 may give rise to irreparable harm for which money damages would not be an adequate remedy, and accordingly agrees that Nordsyn shall be entitled to enforce the terms of this Section 10 by a decree of specific performance without the necessity of proving the inadequacy as a remedy of money damages. If specific performance is elected as a remedy hereunder, such remedy shall be in addition to any other remedies available at law or equity.  

1. Survival. This Section 10 shall survive for as long as Customer, and/or any successor in interest, owns and/or operates the Product plus 5 years thereafter and 5 years after any permitted transfer of ownership or complete cessation of operation. 

1. Force Majeure. In the event that Nordsyn is unable to perform its obligations because of circumstances outside of its control including natural disaster, fire, strike, lightning, lockout, inability to obtain materials, delays of carriers or suppliers, action or decrees of governmental bodies or communication line failure not the fault of Nordsyn or like events, Nordsyn shall give notice to Customer and shall take commercially reasonable efforts to resume performance. Upon receipt of such notice all obligations of Nordsyn shall be suspended, all time periods automatically extended, and any applicable fees due abated for the period applicable to such force majeure. 

1. Default. An event of default (“Event of Default”) under the Agreement shall occur upon the occurrence of any one of the following events: (i) Customer does not pay any amount due to Nordsyn under the Sales Confirmation; (ii) Customer ceases doing business as a going concern; (iii) Customer makes an assignment for the benefit of its creditors or admits in writing to its inability to pay its debts as they become due; (iv) Customer files, or has filed against it, a petition in bankruptcy or for its reorganization, arrangement, composition or readjustment under any state insolvency law or Customer liquidates all or a substantial part of its assets not in the ordinary course of its business, dissolves or takes other similar action; or (v) Customer shall default in the performance of any of its obligations to Nordsyn arising under the Sales Confirmation, these Terms, or any other agreement between the parties and such default is not cured within 15 days of Nordsyn providing notice of same. 

1. Remedies. Upon the occurrence of any Event of Default, Nordsyn may at its option and without notice or demand, exercise all or any one of the following remedies: (i) declare immediately due and payable all invoices and all other sums due or to become due under the Agreement or any other agreement between Customer and Nordsyn, together attorneys’ fees, court costs, other costs of collection and all applicable termination fees; (ii) terminate all of its obligations arising under the Agreement and any other agreement between Customer and Nordsyn; or (iii) exercise all other legal and equitable remedies which Nordsyn may have. The foregoing remedies shall be deemed cumulative and may be exercised successively or concurrently. Customer agrees to pay Nordsyn’s attorney's fees and other costs incurred in enforcing the Agreement.  

1. Assignment. Nordsyn may, in its sole discretion and without notice to or consent of Customer, assign Nordsyn's rights and obligations under the Agreement, and may subcontract any portion of Nordsyn's performance of the Agreement to a third-party. Customer may not assign the Agreement or otherwise transfer its rights or obligations under the Agreement to any third-party without the prior written consent of Nordsyn.  

1. General Provisions. The following sections of the Terms shall survive termination or expiration of the Agreement: 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 15. The relationship between the parties created by the Agreement is that of independent contractors and not partners, joint venturers, agents, or otherwise. No waiver by either party of any right under, or breach of, any provision of the Agreement shall be construed as a waiver of any continuing or succeeding breach of such provision or right. The Agreement (including all Schedules and these Terms): (i) are binding upon and inure to the benefit of Nordsyn and Customer and their respective successors, transferees, or assignees; and (ii) constitute the entire agreement between the parties with respect to the subject matter of the Agreement, superseding all prior agreements, representations, communications and understandings, oral or written. A determination that any provision of the Agreement is invalid or unenforceable shall not affect the other provisions of the Agreement. The Agreement may not be amended or modified except by a written agreement signed by both parties. In the event of a conflict between the Sales Confirmation and these Terms, these Terms will take precedence, and shall supersede and be controlling over the Sales Confirmation. By accepting delivery of the Products or Services, Customer is also agreeing to these Terms. Except for the money due upon an open account, no action may be brought for any breach of the Agreement or these Terms more than one (1) year after the accrual of such cause of action. These Terms may be amended by Nordsyn from time to time without notice to or the consent of Customer. 

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