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TERMS AND CONDITIONS OF SALE
AEROCRINE INC.

I. GENERAL

The following Terms and Conditions of Sale ("Terms") are applicable to all sales made by Aerocrine (“Seller”), and the acceptance of any order is expressly conditioned upon Buyer's consent to these Terms. No interlineations, deletions, modifications or amendments to these Terms shall be binding on Seller unless agreed to and accepted in writing by Seller. All sales are subject to written confirmation by Seller. Receipt by Buyer of Seller's acknowledgement of an order without prompt written objection thereto shall constitute acceptance by Buyer of these Terms. Buyer must respond to Seller's notice of acknowledgement within five (5) days of receipt of such acknowledgement or Buyer shall waive his right to cancel the order.

II. PRODUCT PRICE QUOTATIONS

The quotations or tenders are noncommittal in nature. No contract for sale shall arise until a written acknowledgement from the Seller accepting the Buyer's order, is sent by the Seller to the Buyer. Because no contract is formed until Seller acknowledges Buyer's order, Seller’s Terms shall supersede any and all terms of Buyer.

III. DELIVERY

Seller shall ship all items when and as specified in Quotation. Unless otherwise specified by Seller, the products are to be delivered Ex Works (EXW) Seller’s U.S. warehouse (Incoterms 2000).

IV. DELAYS IN DELIVERY

Delivery periods and deadlines stated are subject to timely deliveries made to Seller by its suppliers. Under no circumstances shall Buyer be entitled to any actual, liquidated, consequential or any other direct or indirect damages of any kind arising from Seller's failure to ship on time.

V. PRICE OF PRODUCT

Unless otherwise stated the price of the products shall include interior and exterior packaging and necessary documentation for shipment from Seller, but excluded from the price are pallets and special packaging. Additional cost shall be added to the price when the Buyer requests the use of the Seller's pallets or requests that the product be packaged in a special manner.

VI. ADDITIONAL TERMS OF PAYMENT

In the event Seller feels insecure concerning payment by Buyer, Seller reserves the right to require cash prepayment or letter of credit payment terms. In the event payment is not received when due, interest shall be due at the rate of three percent (3%) on the unpaid portion of the invoice sum for each period of thirty (30) days or part thereof from the due date. Buyer shall pay all of Seller's costs of collection of any amounts past due, including, but not limited to attorneys' fees, court costs, witness fees, travel and lodging, etc. Seller has the right to refuse to ship products or provide product support if Buyer is past due on any of its debts to Seller. Furthermore, Seller shall have the right to repossess the Products immediately unless other written arrangements have been made concerning payment. Buyer agrees to make all Products available, shipping ready, for Seller, within five (5) days of receiving notice from Seller of its intention to repossess the Products.

VII. SECURITY INTEREST

In order to protect and secure payment of all debts due and owing from Buyer, Buyer hereby grants to Seller a security interest in all of Buyer's inventory of Products. In connection therewith, Buyer shall take such steps and execute and deliver such financing statements and papers as Seller may from time to time require. In the event Buyer sells the products to a third party before payment in full is received by Seller, Buyer agrees to secure its security interest in the products at the time of sale to its customer in order to protect Buyer's interests to the greatest extent possible.

VIII. INSPECTION; RETURNS

Unless Seller receives a written complaint with full particulars from Buyer regarding any defective products or other complaints within five (5) business days from the date the products arrive at the destination indicated on the Bill of Lading, the products shall be deemed to have been delivered in good condition and that the delivery is accepted.

IX. LIMITED WARRANTY

Subject to the conditions set out herein, Seller warrants the Product to be free from defects in material and workmanship at the time of its original delivery, as applicable, and for a subsequent period of one (1) year (the “Warranty Period”). If, during the Warranty Period, the Product fails to operate under normal use due to defects in materials or workmanship, Seller will, at its sole discretion, replace, repair or credit the non-functioning Product in accordance with the terms and conditions stipulated herein. Seller will charge a handling fee for a returned Product which is found not to be under warranty according to the conditions herein. In addition, the following limitations will apply:
  1. This Limited Warranty is not transferable and may only be invoked by the original Buyer of the Product.
  2. The Limited Warranty is valid only if the original proof of purchase issued to Buyer by Seller, specifying the date of purchase and serial number(s), is presented with the Product to be replaced, repaired or credited. Seller reserves the right to refuse warranty replacement, repair or credit if the said Product information has been removed or changed after the original purchase of the Product from Seller.
  3. If Seller replaces or repairs the Product, the replaced or repaired Product shall be warranted in accordance with this Limited Warranty for the remaining time of the original Warranty Period, or for three (3) months after the date of delivery of the replaced or repaired Product, whichever is longer. Replacement of Products may involve the use of functionally equivalent reconditioned units in Seller’s sole discretion. Returned parts or components will become the property of Seller.
  4. This Limited Warranty does not cover any failure of the Product due to normal wear and tear, or due to misuse, including but not limited to use in other than the normal and customary manner, in accordance with the Seller instructions for use, maintenance and storage of the Product, or as a result of accidental damage (including without limitation damage from exposure to liquids of any kind).
  5. This Limited Warranty does not cover Product failures which have been caused by installations, modifications or repair or opening of the Product performed by a person not authorized by Seller. Tampering with any of the factory seals on the Product will void this Limited Warranty.
  6. This Limited Warranty does not cover Product failures which have been caused by use of accessories or other peripheral devices which are not approved by Seller for use with the Product.
  7. Products returned under this Limited Warranty must be packed and returned in their original package or as otherwise instructed by Seller. Failing to do so voids all warranties.
  8. During the warranty period, seller is responsible for cost of shipping of an identified defective product. Shipping charges will revert to the customer for product returned by Buyer that is found to be satisfactory, of which faults cannot be reproduced.
  9. THE EXPRESS TERMS OF THIS LIMITED WARRANTY ARE IN LIEU OF ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. IN NO EVENT SHALL SELLER BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR COMMERCIAL LOSS, TO THE FULL EXTENT THOSE DAMAGES CAN BE DISCLAIMED BY LAW. THE REMEDIES PROVIDED UNDER THIS LIMITED WARRANTY SHALL BE EXCLUSIVE AND NO OTHER REMEDY UNDER ANY STATUTE OR LEGAL PRINCIPLE SHALL BE AVAILABLE WITH RESPECT TO THIS LIMITED WARRANTY.

X. CANCELLATION

Seller may cancel any contract if Buyer is in default of the payment of any obligations pursuant to the contract or any other contract between the parties, or if in the sole judgment of Seller, Buyer's financial condition and responsibility has become materially impaired. In addition, Seller shall have the right to recover damages for nonperformance, and any unpaid installments due on account of this or any other contract between the parties shall become immediately due and payable. Seller may cancel the contract and be released from its obligation to discharge its part of the contract, if it is prevented or encumbered unreasonably by conditions beyond its control and that occur after Buyer’s order has been acknowledged, such as labor disputes, fires, wars, mobilization or unforeseen similar acts by the military authorities, requisition, arrests, currency restrictions, insurrection and riots, shortages of means of transportation or raw materials or components, general shortages of goods, destruction of large quantities of products, restrictions in the use of power, extensive damage to or destruction of machinery or other important equipment for production as well as stocks of raw material or components, and defects in or delay of deliveries from sub suppliers. Written notice of such encumbrances upon Seller shall be given to Buyer in good faith.

XI. GOVERNING LAW

These Terms and all transactions between Seller and Buyer are governed by the laws of the State of New Jersey, without regard to its conflict of laws provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.

XII. ARBITRATION

In the event of any dispute, controversy, claim or difference that should arise between the parties out of or relating to or in connection with these Terms or the breach of any obligation in connection with any transaction between the parties, the parties shall endeavor to settle such conflicts amicably among themselves. Should they fail to do so, the matter in dispute shall be settled by arbitration in the State of New Jersey in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Any award or judgment of the arbitrators shall be final and binding on the parties and may be entered in any court of competent jurisdiction. The arbitration award shall include detailed findings of fact and the reasoning used by the arbitrator to decide the matter in dispute.

XIII. ENTIRE AGREEMENT

These Terms constitute the sole terms and conditions of the contract between the Buyer and Seller. No other terms, conditions, or understanding, whether oral or written, shall be binding upon the Seller, unless hereafter made in writing and signed by Seller's authorized representative and, in the case of printed matter, also initialed by such representative next to such printed term or condition.


Dated: October 31, 2005