(Effective June 2011)

  1. Application. These Standard Terms and Conditions apply to any sale of equipment, parts, materials and related services (the “Products”) by AeriNOx Incorporated (“AeriNOx”) to any AeriNOx Customer (the “Customer”).  Acceptance of these Standard Terms and Conditions by any Customer is an express condition of any such sale.
  2. Entire Agreement.  These Standard Terms and Conditions, the Order Confirmation (the “Order Confirmation”) issued by AeriNOx in respect of each sale and supply of Products and any other document expressly incorporated by reference in an AeriNOx Order Confirmation (collectively, the “Agreement”) constitute the entire agreement between AeriNOx and the Customer regarding a sale of Products or related services by AeriNOx to the Customer.  These Standard Terms and Conditions supersede all other discussions, proposals, quotes, negotiations, statements, representations, understandings and the like, whether written or oral.  AeriNOx rejects any differing or supplemental terms that may be printed or otherwise found in any purchase order or other document sent by the Customer prior to the acceptance of Agreement, except as expressly accepted by AeriNOx in writing with the signature of an authorized representative.  If there are inconsistencies in the documents constituting the Agreement, such documents shall take precedence in the following order:
    1. the AeriNOx Order Confirmation;
    2. a contract document or addendum incorporated by reference into the AeriNOx Order Confirmation; and
    3. these Standard Terms and Conditions.
  3. Terms of Payment. Unless otherwise agreed by AeriNOx in writing, signed by an agent of AeriNOx, AeriNOx invoices for the Customer’s purchase of Products are payable within thirty (30) days of the date of the invoice with place of payment to be PO Box 490, Eaton, Colorado 80615  or as designated in the AeriNOx Agreement.  Should payment not be made to AeriNOx when due, such payment shall bear an interest at the rate of one and one-half percent (1½%) per month (18% per annum).  The charging of such interest shall not be construed as obligating AeriNOx to grant any extension of time in the terms of payment.  No cash discount shall be available to the Customer.  If prior to any delivery of Products, AeriNOx has concern regarding timely payment of the purchase price because of a material adverse change in Customer’s circumstances or otherwise, AeriNOx may require payment of all or additional parts of the purchase price before shipment or delivery and/or AeriNOx may require satisfactory security for the payment of the purchase price.
  4. Cancellation of Contract before Delivery. In the event the Customer cancels the Agreement after the date such Agreement is accepted, Customer agrees to pay the following charge as liquidated damages in lieu of actual damages, it being understood and agreed between the parties that actual damages to AeriNOx would be impractical or extremely difficult, time consuming and expensive to ascertain.  It is as follows:
    % of Time Elapsed From Date of Agreement to
    Time of Cancellation (calendar days)
    % of Sales Price Due
    (Not including Shipping Costs)
    0 ? % Time Elapsed < 33 1/3% 50%
    33 1/3 ? % Time Elapsed < 50% 75%
    50 ? % Time Elapsed < 66 2/3% 85%
    66 2/3 ? % Time Elapsed < 80% 95%
    80% ? % Time Elapsed ? 100% 100%
  5. Delivery Terms. Each Product subject to sale shall be shipped in accordance with the International Commercial Trade Terms known as IncoTerms 2010 specified in the AeriNOx Agreement.  If shipping instructions are not so specified for any supply of Products, such supply shall be shipped ex works (IncoTerms 2010).  Ex works deliveries of the shipped Products are deemed complete upon release of the Products to the Customer’s carrier at AeriNOx’s facilities (the “AeriNOx Plant”) located near Boulder in Eaton, Colorado, United States of America.  If the Customer is unable or unwilling to accept physical delivery at the time specified for delivery, AeriNOx may store Customer’s Products at Customer’s cost and the delivery of such Products shall be deemed complete as of the date of storage.
  6. Taxes. Unless otherwise expressly provided for in an AeriNOx Agreement, or otherwise implicit in the IncoTerms 2010 specified for a particular supply, the price of the Products shall not include sales, use, excise, value added or any similar taxes, duties or other export/import charges.
  7. Delivery Schedule. Time for delivery is approximate and starts on the later of the date specified in the AeriNOx Agreement or the receipt by AeriNOx of any advance payment or first payment as set forth in the AeriNOx Agreement.  Should Customer not make an advance payment or first payment as set forth in the AeriNOx Agreement, AeriNOx may request from the Customer credit approval or placement of security for the balance of the purchase price.  Unless otherwise specified in an AeriNOx Agreement, AeriNOx shall not be liable for losses of any kind incurred by the Customer for delays in or failure to deliver all or any part of the Products.  Changes in the delivery schedules requested by the Customer must be in writing and received by AeriNOx at least two (2) business days prior to the previously scheduled delivery date.  AeriNOx is under no obligation to accept any changes in delivery dates requested by the Customer.
  8. Title Retention. Title or ownership of the Products shall not pass to the Customer, notwithstanding delivery thereof, but shall remain vested in AeriNOx until the purchase price of the Products is paid in full.  As security for the full payment of the purchase price of the Products, the Customer hereby grants to AeriNOx, and AeriNOx hereby reserves, a purchase money security interest and charge in the Products and in all substitutions, replacements and additions thereto and the proceeds thereof.  Until such time of full payment, the Customer shall: (a) insure the Products against loss, damage or destruction for full replacement value; and (b) execute such additional documents as AeriNOx shall request for the confirmation or perfection of such security interest and charge.  Upon any default by the Customer, and subject to applicable law, AeriNOx may repossess and deal with the Products as it shall see fit and retain all payments which have been made by the Customer for the account of the purchase price as liquidated damages.  Upon any such realization of security, the Customer shall remain liable for any deficiency in the purchase price and shall reimburse AeriNOx for all costs and expenses, including reasonable legal fees, incurred in enforcing its rights.  All rights and remedies of AeriNOx are cumulative and in addition to those available at law or in equity.
  9. AeriNOx Property. All supplies, materials, tools, jigs, dies, gauges, fixtures, molds, patterns, equipment and other items procured by AeriNOx to perform the supply of Products under its Agreement with Customer shall be and shall remain the property of AeriNOx under all circumstances, including, without limitation, reimbursement of AeriNOx by the Customer for all or any portion of the cost of such items.
  10. Risk of Loss. Unless otherwise specified or confirmed in the AeriNOx Agreement, the risk of loss or damage to the Products, including any repaired or replaced items, and the responsibility for the payment of insurance premiums and freight passes to the Customer upon AeriNOx’s delivery as provided in Sections 5 and 7 above.  No loss of or damage to the Products or any part or portion thereof shall relieve the Customer from its obligations for payment hereunder.
  11. Inspection, Rejection, Remedy. Customer shall have the right to reasonable inspection of the Product after delivery to destination, which inspection shall be completed within ten (10) days of the date of delivery to destination.  Any rejection by Customer as to part or all of the Product shall be in writing, specifically stating the damage or design non-conformance.  In such event, AeriNOx shall have a reasonable period of time to determine the validity of and, if necessary, to repair any damage to a Product or correct a design non-conformance of a Product.  Should a design non-conformance form the basis of the Customer’s rejection, at AeriNOx’s option and if appropriate, it may replace part or all of the Product.  Upon validating damage to a Product or a design non-conformance, AeriNOx shall provide Customer with a date certain for completion of repair or replacement or provision of a design conforming item.

    Subsequent to installation and commissioning and within the Product warranty period, should the Product delivered be found not to meet functional specifications set forth in the AeriNOx Agreement for measured emissions, AeriNOx shall provide a date certain for bringing the Product into functional conformance per the AeriNOx Agreement. The time period to do so shall not exceed sixteen (16) weeks from the date of discovery of failure to meet functional specifications.  The time period within which to correct such a functional non-conformance shall commence at the later of the commissioning date or the date that the emissions non-conformance was discovered.

    Customer’s failure to make rejection as herein stated, or to allow AeriNOx to cure Customer’s objections, shall be deemed to conclusively establish acceptance by Customer of the Product.

  12. Limited Warranties. AeriNOx warrants that each Product is free of defects in material and workmanship strictly in accordance with the terms and conditions of the limited warranty statement specified or confirmed in the AeriNOx Agreement.  Copies of Product Warranties are available from AeriNOx upon request.  Throughout the Warranty Period, AeriNOx warrants that the Product will achieve the emissions levels set forth in the accepted AeriNOx Agreement, subject to the following conditions:
    1. the Product is operated and maintained at all times in accordance with AeriNOx’s written instructions;
    2. the Customer’s equipment is operated and maintained at all times in accordance with all manufacturer’s instructions and guidelines;
    3. the Customer’s equipment, during operation, never exceeds the engine-out emissions rate, the flow rate or temperature levels set forth in the AeriNOx Agreement;
    4. the Customer’s equipment never falls below the lower temperature limits stated in the AeriNOx Agreement;
    5. the Customer operates the equipment so as to eliminate any Oxides of Nitrogen (NOx), Carbon Monoxide (CO) and Total Hydrocarbons (THC) fluctuations greater than one (1%) respectively of the engine-out emissions stated in the engine performance data; and
    6. all operating parameters including engine load, fuel consumption, and hours of operation are recorded and/or logged hourly (excluding exhaust gas flow rates, engine-out emissions data and post-after treatment emissions data).

    Emission levels, temperature and flow rates from Customer’s equipment and the Product discharge point shall be tested at the Customer’s expense, in accordance with a mutually agreed upon test procedures and protocol consistent with customary and accepted industry practices.  AeriNOx’s limited warranty shall expire in the event the Product is misused, neglected, not properly maintained or operated other than for its intended use or purpose by the Customer.

    If the above conditions are met and the Product fails to achieve the output performance stated in the AeriNOx Agreement within the Warranty Period, AeriNOx shall replace or modify and adjust its Product as needed to meet such output performance standards.  Consistent with Section 11 above, Customer is required to notify AeriNOx, in writing, of any specific defect(s) and provide AeriNOx with complete documentation of the defect(s) and proof of satisfaction of all conditions, a) through f), of this Section 12.  If AeriNOx is unable to achieve the output performance standards under the AeriNOx Agreement conditions, Customer may rescind the sale, and AeriNOx shall return the purchase price that shall be Customer’s sole remedy for breach of the warranty made in this paragraph. In no event shall AeriNOx be responsible for consequential or punitive damages or otherwise.

  15. Consequential Damages. AeriNOx shall not be liable for and shall be held harmless by the Customer from any damage, loss, claim or expense, including without limitation indirect, special, consequential, incidental or punitive damages in relation to loss of use of facilities or equipment, loss of production, revenue or profits, downtime costs, or costs of capital or of substitute equipment or services arising directly or indirectly from the Products or the sale thereof, including without limitation the manufacture, handling, use, installation, operation or dismantling of the Products, whether alleged in contract, negligence or otherwise.
  16. Re-sale of Products. In respect of any re-sale of the Products or sale of any Customer product which incorporates a Product as a component, the Customer shall indemnify, defend and hold AeriNOx harmless against any and all claims, actions, liabilities and expenses (including all legal fees, on a substantial indemnity basis) arising from a representation or warranty to a third party for the Products made by the Customer other than, as limited by the Product Warranties, or arising from an allegation of process patent infringement relating to a Customer process in which the Products are used as a component part.
  17. Survival. All payment obligations, provisions for the limitation of or protection against liability of AeriNOx and any other provision of an Agreement which by its nature is continuing, shall survive the termination, cancellation or expiration of such Agreement.
  18. Permits. The Customer shall obtain, at its expense, all licenses, permits and approvals for the purchase, delivery, shipment, installation and use of any Products.
  19. Force Majeure. AeriNOx shall be excused from the timely performance of its obligations in the sale or other supply of Products and/or services if its performance is impeded or prevented by circumstances beyond its control (other than its own financial difficulties) (a “Force Majeure Event”) and AeriNOx shall take all reasonable steps or actions to mitigate the effect of the delay.  This provision shall specifically apply to Section 7 above.  Upon the occurrence and the termination of a Force Majeure Event, AeriNOx shall promptly provide the Customer with written notice and reasonable particulars of the Force Majeure Event.  Either party may terminate any Agreement affected by a Force Majeure Event if such circumstances continue for more than six (6) months and written notice of termination is delivered to the non-terminating party.  Upon and notwithstanding any such termination, the Customer shall pay AeriNOx for that portion of the Products manufactured or delivered prior to the date of the above mentioned initial notice of the Force Majeure Event.  Notwithstanding anything in this Section 19, the Customer shall extend any security granted for the payment of the purchase price of Products for a period equal to the delay caused by the Force Majeure Event.
  20. Governing Law. The sale of the Products and this Agreement are and shall be governed by the laws of the State of Colorado and the laws of the United States of America as applicable therein.  Each of the parties irrevocably attorns and agrees to the exclusive jurisdiction of the Courts of the State of Colorado, provided that the parties shall not be prevented from seeking injunctions or other temporary relief or enforcing judgments of the Courts of Colorado in another jurisdiction.
  21. Confidential Information. Proprietary or confidential information disclosed for supply of any Products may not be used or disclosed by the recipient, Customer or AeriNOx other than for the express purpose for which it was disclosed.  The owner of such proprietary or confidential information shall be responsible for designating it as such by clear and timely notice thereof to the recipient at the time of or before its conveyance to the recipient.
  22. Assignment. Neither party may assign all or any part of the AeriNOx Agreement without the prior written consent of the other party.
  23. Waiver, Amendment. Any waiver, modification or amendment of an Agreement shall only be effective if such waiver, modification or amendment is contained in a written instrument prepared or otherwise accepted in writing by AeriNOx and Customer and signed by their respective authorized agents.
  24. Suspension, Cancellation or Termination. Subject to Sections 4, 11 and 19 hereof, no AeriNOx Agreement may be cancelled or suspended by the Customer without the express written consent of Aeris, such consent to be granted in AeriNOx’s sole and unrestricted discretion and upon such terms, including the payment of all costs incurred and profits foregone, as AeriNOx may require.  Termination may be effected as set forth in Section 19 by either party.
  25. Severability and Reconstruction or Termination. If a binding court determination, ruling or judgment is made that a provision of these Standard Terms and Conditions or any other document which forms the AeriNOx Agreement is unenforceable (in whole or in part), then such provision shall be void only to the extent that such determination, ruling or judgment requires, and the parties shall replace such void provision with one that is enforceable and valid and, to the greatest extent permitted by law, serves the intent and purpose of the void provision.  No other provision shall be affected as a result thereof, and, accordingly, the remaining provisions shall remain in full force and effect as though such void, voidable or inoperative provision had not been contained herein.