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General Terms and Conditions for the Sale of Products

  1. Applicability.
    • These terms and conditions of sale (these “Terms“) are the only terms which govern the sale of the products (“Products“) by Aero Healthcare US LLC (“Seller“) to the buyer named on the Order Confirmation (“Buyer“).
    • The accompanying order confirmation (the “Order Confirmation“), Seller quote or price list (collectively “Quote“), Master Services Agreement between Seller and Buyer, if any, (“MSA“), only the list of Products to be purchased, quantities ordered, requested delivery date and Delivery Point listed on Buyer’s purchase order (the “Purchase Order Transaction Terms“), and these Terms (the Order Confirmation, Quote, MSA, Purchase Order Transaction Terms and these Terms collectively, “Agreement“) comprise 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 any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. For the avoidance of doubt Purchase Order Transaction Terms does not include any general terms and conditions of any Buyer purchase order. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms. In the event of any conflict between the Order Confirmation, Quote, MSA, Purchase Order Transaction Terms and these Terms, the following order of precedence shall apply: MSA, Quote, Order Confirmation, Purchase Order Transaction Terms, Terms.
  2. Delivery.
    • The Products will be delivered within a reasonable time after the receipt of Buyer’s purchase order, subject to availability. Shipment dates are based on Seller’s best estimates and are not guaranteed. Seller shall not be liable for any delays, loss or damage in transit.
    • Seller shall deliver the Products to the location listed on the Order Confirmation (the “Delivery Point“) using Seller’s standard methods for packaging and shipping such Products.
    • Seller may, in its sole discretion, without liability or penalty, make partial shipments of Products to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order. Delay in delivery of any installment shall not relieve Buyer of its obligation to accept remaining deliveries.
  3. Quantity. If Seller delivers to Buyer a quantity of Products of up to 10% greater or less than the quantity set forth in the Order Confirmation, Buyer shall not be entitled to object to or reject the Products or any portion of them by reason of the shortfall and shall pay for such Products the price set forth in the Order Confirmation adjusted pro rata.
  4. Shipping Terms. Seller shall make delivery in accordance with the terms on the face of the Order Confirmation.
  5. Title and Risk of Loss. Title and risk of loss passes to Buyer upon delivery of the Products FOB departure origin unless otherwise stated in the Order Confirmation. As collateral security for the payment of the purchase price of the Products, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the New York Uniform Commercial Code.
  6. Amendment and Modification. These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.
  7. Inspection and Rejection of Nonconforming Products.
    • Buyer shall inspect the Products within ten days of receipt (“Inspection Period“). Buyer will be deemed to have accepted the Products unless it notifies Seller in writing of any Nonconforming Products during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. “Nonconforming Products” means only the following: (i) product shipped is different than identified in Buyer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents.
    • If Buyer timely notifies Seller of any Nonconforming Products, Seller shall, in its sole discretion, (i) replace such Nonconforming Products with conforming Products, or (ii) credit or refund the Price for such Nonconforming Products, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at Seller’s expense and risk of loss, the Nonconforming Products to Seller’s facility located at 616 Corporate Way, Suite 6, Valley Cottage, NY 10989. If Seller exercises its option to replace Nonconforming Products, Seller shall, after receiving Buyer’s shipment of Nonconforming Products, ship to Buyer, at Seller’s expense and risk of loss, the replaced Products to the Delivery Point.
    • Buyer acknowledges and agrees that the remedies set forth in Section 7(b are Buyer’s exclusive remedies for the delivery of Nonconforming Products. Except as provided under Section 7(b), all sales of Products to Buyer are final.
  8. No Cancellation, Returns and Restocking.  No Product(s) may be returned to Seller without the prior written consent of Seller.  In the event that Seller consents to any return of Product(s), Buyer shall be responsible for any and all shipping costs for delivery to Seller’s facility, along with a restocking fee in the amount of at least 15% of the Purchase Price for such Product(s). A “Return Authorization Number” must accompany all authorized returns. Seller’s customer service department must be contacted in order to receive a “return authorization number”. Replacement, credits, and refunds are given at the sole discretion of  Out-of-warranty, opened, or expired products are not returnable.  For the avoidance of doubt, any order of products related to COVID-19 pandemic, including, but not limited to, Hand Sanitizer, Flowflex Rapid Antigen COVID 19 tests, etc. may not be cancelled and the product may not be returned except due to the receipt of incorrect product in accordance with Section 7.
  9. Price.
    • Buyer shall purchase the Products from Seller at the prices (the “Prices“) set forth in Seller’s Quote on or before the expiration date of the quote. Price, terms, and availability of merchandise are subject to change without notice, including but not limited to changes caused by the fluctuations in market price, availability, or quality of any of the items employed in the manufacture of the goods described herein.
    • All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.
  10. Payment Terms.  Except a set forth on the Order Confirmation, Buyer shall pay all invoiced amounts due to Seller on receipt. Buyer shall make all payments hereunder by wire transfer / ACH, check or credit card and in US dollars. All credit card payments are subject to a processing fee of 2.5%. All orders are assessed a handling charge of $4.95.  Based on Seller’s reasonable judgment, if Buyer’s financial condition at the time the merchandise is ready for shipment does not justify the terms specified, Seller reserves the right to change these terms, to require full or partial payment in advance, or to ship the goods C.O.D.
    • Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Products if Buyer fails to pay any amounts when due hereunder and such failure continues for 10 days following written notice thereof.
    • Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
  11. Limited Warranty.
    • For Products manufactured by the Seller, Seller warrants to Buyer that for a period of the shelf life of the Products (“Warranty Period“), that such Products will conform to Seller’s published specifications in effect as of the date of shipment.
    • EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 11(A), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE OR (d) WARRANTY 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. SELLER DOES NOT WARRANT OR GUARANTY THAT BUYER WILL REALIZE ANY RESULTS BY VIRTUE OF THE USE OF THE PRODUCTS. ANY ORAL OR WRITTEN STATEMENT, INFORMATION OR ADVICE GIVEN OR MADE BY SELLER OR ANY OF ITS EMPLOYEES, AGENTS, REPRESENTATIVES OR DISTRIBUTORS ABOUT THE PRODUCTS OR THE PERFORMANCE OF THE PRODUCTS: (A) SHALL NOT CONSTITUTE A SELLER REPRESENTATION OR WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE WARRANTY; (B) SHALL NOT BE RELIED UPON BY BUYER OR ANY OTHER PERSON; AND (C) IS NOT A PART OF THE WARRANTY.
    • Products manufactured by a third party (“Third Party Product“) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Products. Third Party Products are not covered by the warranty in Section 11(a). For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY 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.
    • The Seller shall not be liable for a breach of the warranty set forth in Section 11(a) unless: (i) Buyer gives written notice of the defect, reasonably described, to Seller within 30 days of the time when Buyer discovers or ought to have discovered the defect; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Products and Buyer (if requested to do so by Seller) returns such Products to Seller’s place of business at Seller’s cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer’s claim that the Products are defective.
    • The Seller shall not be liable for a breach of the warranty set forth in Section 11(a) if: (i) Buyer makes any further use of such Products after giving such notice; (ii) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Products; or (iii) Buyer alters or repairs such Products without the prior written consent of Seller.
    • Subject to Section 11(d) and Section 11(e) above, with respect to any such Products during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Products (or the defective part) or (ii) credit or refund the price of such Products at the pro rata contract rate provided that, if Seller so requests, Buyer shall, at Seller’s expense, return such Products to Seller.
    • THE REMEDIES SET FORTH IN SECTION 11(F) SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 11(A). 
  12. Limitation of Liability.
    • IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
    • IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE PRODUCTS SOLD HEREUNDER IN THE SIX MONTHS IMMEDIATELY PRIOR TO THE EVENTS GIVING RISE TO THE APPLICABLE CLAIM OR CAUSE OF ACTION.
    • The limitation of liability set forth in Section 12(b) above shall apply to the greatest extent permitted by applicable law.
  13. Compliance with Law. Buyer shall comply with all applicable laws, regulations and ordinances.
  14. Seller is not responsible for any damage or loss, medically or otherwise, resulting from Buyer’s use or resale of the Products.
  15. Buyer shall indemnify, defend, and hold harmless Seller, its directors, officers, employees and agents (the “Seller Indemnified Parties”) from and against any claims, suits, actions, or proceedings brought against any Seller Indemnified Parties by a third party arising out of or resulting from (a) the marketing (including without limitation advertising and packaging), distribution, or sale of the Products by or on behalf of Buyer in any manner that violates this Agreement, or (b) the negligence or misconduct of Buyer or its directors, officers, employees and agents, or (c) the breach by Buyer of its obligations under this Agreement, or (d) any modifications, alterations, or mishandling of the Products by Buyer or its customers (each a “Claim”).  Buyer shall pay to the applicable Seller Indemnified Parties all related damages, costs, fees and expenses (including reasonable attorneys’ fees) awarded against such Seller Indemnified Parties to a third Party in a final judgment or settlement of such Claim.  Notwithstanding the foregoing, Buyer shall not be obligated to defend or pay resulting amounts awarded against Seller Indemnified Parties with respect to any Claim to the extent resulting or arising from (i)  the breach by Seller of its obligations under this Agreement, or (ii) the gross negligence or willful misconduct of any Seller Indemnified Party.
  16. Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement and such failure continues for ten (10) days after Buyer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. In the event the continued operations under this Agreement places either party in violation of applicable laws or governmental regulations (e.g., FDA regulations, FTC regulations, important export control regulations), such affected party may terminate this Agreement upon written notice to the other party.
  17. Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
  18. Confidential Information. All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
  19. RESTRICTIONS ON EXPORT. Buyer understands and agrees that neither it nor its customers shall directly or indirectly ship, sell, or negotiate sales of the ACON Flowflex Covid 19 Antigen Rapid Test™ (“Test”) for use outside the United States and its territories (“Territory”); and Buyer shall by contract or other writing, restrict its customers from shipping and/or selling the Tests for use outside the Territory.  If Buyer learns of any such sale or use by its customers outside the Territory, Buyer shall promptly notify Seller, and Buyer shall take appropriate actions against its customer that may be necessary to eliminate such activity.  In the event that Seller determines that Buyer or any of its customers has violated this restriction, Seller may immediately terminate this Agreement and may (i) promptly suspend shipments of the Tests to Buyer, and (ii) pursue a damages claim against Buyer.  For Product other than Tests, if the ultimate destination of the Products is outside of the United States, the parties agree that Convention on the Contracts for the International Sale of Goods does not apply in any way to this Agreement, and Buyer shall designate such country of destination on the Confirmation of Sale. In the event that Buyer purchases Products for export without so notifying Seller, Seller reserves the right to cancel this Agreement at no penalty or liability for breach in the event that Seller objects to the ultimate destination of the Products.  Buyer shall comply with all export and import laws of all countries involved in the sale of Products under this Agreement.  Buyer assumes all responsibility for shipments of Products requiring any government import clearance.   Buyer will have sole liability and shall defend, indemnify and release Seller for any loss or damage (including without limitation, claims of governmental authorities) arising from import into another country of such Products, including, without limitation, those related to packaging, labeling, marking, warranty, contents, use, or documentation of the Products.  Buyer will not take, and will not solicit Seller to take, any action which would violate any anti-boycott or any export or import statutes or regulations of the United States or other governmental authorities and shall defend, indemnify, and reimburse Seller for any loss or damage arising out of or related to such actions.
  20. Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Buyer to make payments to Seller hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, explosion, pandemics or epidemics, including COVID-19; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) shortage of adequate power or transportation facilities; and (i) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within a reasonable time of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause.
  21. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
  22. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
  23. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
  24. Governing Law. All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of New York] without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of New York.
  25. Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of New York in each case located in the City of Rochester and County of Monroe, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
  26. Limitation of Actions. Any action by Buyer against Seller for breach of this Agreement or for failure to provide relief under a warranty claim pursuant to this Agreement must be commenced within twelve (12) months from when delivery of the Products or the warranty claim (as applicable) was made.
  27. No Authority. No dealer, broker, branch manager, agent, employee or representative of Seller has any power or authority except to take orders for Seller’s Products and to submit the same to Seller, at Seller’s factory, for Seller’s approval and acceptance on the terms herein or rejection.
  28. Notices. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice“) shall be in writing and addressed to the parties at the addresses set forth on the face of the Order Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
  29. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
  30. Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Compliance with Laws, Confidential Information Governing Law, Submission to Jurisdiction/Arbitration, Indemnification, and Survival.
  31. Captions. The paragraph captions contained in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe, or describe the scope or intent of the paragraphs of this Agreement, nor in any way affect this Agreement.

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