AeroSpheres, Inc. Limited Warranty and Liability Provisions

1. General Limited Warranty

AeroSpheres, Inc., a New Jersey corporation (“Seller”), warrants (the “General Limited Warranty”) to you as “Buyer” that at the time of the first transfer of products furnished by Seller to the freight forwarder, intermediary consignee, or Buyer, as the case may be, the products will be free from defects in material and workmanship and will conform to the specifications and/or drawings set forth in writing on the purchase order of the Buyer. Except for latent defects, all products furnished shall be deemed to be finally accepted by Buyer unless Seller receives written notice within a reasonable time period, not to exceed thirty (30) days following first receipt of products by the freight forwarder, intermediary consignee, or Buyer, as the case may be. As to latent defects, the Buyer may reject products within ninety (90) days following first transfer of title to the freight forwarder, intermediary consignee, and/or Buyer, as the case may be. The warranties in this General Limited Warranty are the only warranties applicable to the products delivered by Seller. Seller does not make any other warranties, representations, or conditions of any kind, express or implied, statutory or otherwise, with respect to the products supplied by Seller, including, without limitation, any implied warranties of merchantability or fitness for a particular purpose.

2. Warranty Provisions

There is no continuing warranty by Seller for defects attributable in whole or in part to normal wear and tear or to factors beyond the control of the Seller, including but not limited to:

1. improper installation(s) and/or use(s) of the products;
2. use in improper application(s) or condition(s) or in conjunction with improper material(s);
3. improper transporting of the product(s);
4. failure to adhere to applicable instructions of the manufacturer concerning the proper handling, installation, testing, and/or use of the product(s);
5. failure to adhere to applicable standards set forth by local laws, codes, or regulations and applicable industry standards;
6. products installed with known or visible manufacturing defects at the time of installation;
7. minor conditions such as stains, scratches, etc., or failure or dissatisfaction with appearance of products;
8. any other improper activities not listed above or damage caused by the fault or negligence of anyone other than Seller;
9. once the material is altered, converted, and/or utilized in the production of an end product; or
10. where abnormal environmental and/or operating conditions are encountered by the aircraft and/or Buyer’s end item or product.

3. Buyer’s Responsibility

Buyer recognizes, acknowledges, understands, and accepts that Seller is not the manufacturer of any product supplied. Therefore, Buyer shall indemnify, release, and hold Seller harmless from any and all legal action related to safety and/or health issues related to and/or resulting from the use of the products delivered by Seller. Furthermore, the Buyer confirms that it has reviewed or will review the Material Safety Data Sheets (MSDS) issued by the manufacturer, and has taken all precautions and safety measures required to protect its employees, third parties, and its customers prior to using the products. Products must be stored, handled, installed, used, and maintained in accordance with instructions provided by the manufacturer, and the General Limited Warranty is conditioned upon compliance with all such instructions.

4. Seller’s Liability

Seller’s liability for defective and/or non-conforming products is limited to (i) the replacement of the products pertaining to the specific order, including domestic surface freight shipping charges within the Continental United States of America, or (ii) the refund of the purchase price, as Seller may elect. Defective and/or non-conforming products shall not be returned to the Seller without Seller’s prior written consent and permission. Buyer assumes all risk whatsoever as to the result of the use of the products purchased, whether used singularly or in combination with any other products or substances. Under no circumstances shall the Seller be liable to Buyer in tort, contract, or otherwise, for lost profits, loss of goodwill, loss of use, loss of time, or loss of data, loss of business opportunities, damage to reputation, special damages, indirect damages, delay damages, punitive damages, exemplary damages, consequential damages, or incidental or other damages, including without limitation any costs incurred in connection with the removal or reinstallation of allegedly defective products, even if advised of the possibility of such damages or such damages could have been reasonably foreseen, in connection with, arising out of, or as a result of, the sale, delivery, servicing, use, or loss of use of the products sold by Seller, or for any liability of Buyer to any third party with respect thereto. The remedies expressed herein are exclusive. Buyer hereby waives any claim against Seller, for any of the foregoing.

5. Claims

Every claim under the General Limited Warranty for defective or non-conforming products shall be void unless it is made in writing and received by Aerospheres, Inc., located at 129 Paterson Ave, Little Falls, New Jersey 07424, United States, Attention: Gary Endrikat or by email with confirmed receipt to Gary Endrikat, within ten (10) days following the date the defect was discovered, and, in any event, within the period specified in the General Limited Warranty. No claim under the General Limited Warranty will be valid unless the following items are submitted within the period specified in the General Limited Warranty:

1. proof of purchase with the date thereof as well as a description of the alleged defect in reasonable detail is presented to the satisfaction of Seller;
2. written permission and/or a Return Goods/Merchandise Authorization (RGA/RMA) or a written release for disposal of the products by the Seller to Buyer;
3. Seller and/or its third party designee is given the opportunity to inspect the allegedly defective products; and
4. at the request of Seller, representative samples of the allegedly defective products are returned to Seller in accordance with Seller’s instructions.

6. Deliveries

Buyer acknowledges that Seller is a distributor and not the original manufacturer of the products purchased. Seller is reliant upon the manufacturer for timely delivery of the products. Seller disclaims any liability for failure to deliver products on time, including but not limited to production delays or damages or delays in transportation.

7. Order Cancellation

Seller may accept order cancellations, as permitted by the product’s manufacturer. Seller shall have the right to charge Buyer for any losses or expenses, including but not limited to re-stocking, transportation, handling, or other miscellaneous charges in connection with Buyer’s order cancellation.

8. Entire Agreement; Validity; Other Terms Void

The General Limited Warranty supersedes (i) any boiler plate terms referenced in a Buyer purchase order for the products, (ii) any previous communications, representations, or agreements, whether verbal or written, related to the products. In the event that any provision of the Limited General Warranty is held to be illegal or unenforceable by any court of competent jurisdiction, the remaining provisions of the Limited General Warranty shall remain in full force and effect. Any terms and provisions inconsistent with the Limited General Warranty shall be null and void.

9. Governing Law

The Limited General Warranty shall be governed by the laws of the state of New Jersey in the United States of America without regard to such state’s conflicts of law principles that would require the application of the law of any other jurisdiction. Any and all disputes arising out of or relating to the Limited General Warranty shall be subject to the co-exclusive jurisdiction of the Federal and state courts having subject matter jurisdiction in Essex County, New Jersey, in the United States of America, or, at the sole discretion of Seller, to binding arbitration before a single arbitrator pursuant to the American Arbitration Association’s Commercial Dispute Resolution Procedures, with such arbitration to take place in Essex County, New Jersey, in the United States of America.

Seller reserves the right to revise this Limited Warranty and Liability Provision without notice at any time.

* * * End * * *