Terms and Conditions
The following provisions set forth the terms and conditions on which ACON Laboratories, Inc. sells its Mission®, On Call®, CentriVet®, KetoTrak®, Foresight®, Healthy Me®, Promotor®, Distinct®, FlowflexTM and other ACON products.
Definitions
“Leadway” is the Hong Kong Trading Company and corporate center for the ACON organization.
“Customer” is defined as a company that markets Leadway branded products or that purchases and re-sells generic products, or an end user of the branded or generic products.
Terms of Sale
Customer shall not alter, remove, or modify any Leadway trademarks, labeling or packaging, nor affix any other trademarks, labels, instructions, warnings, or markings to or on any product or the packages or boxes used for any product without written consent from Leadway’s Regulatory Department. Customer shall ensure that an effective system of lot traceability is implemented. Customer must notify Leadway of all claims of damaged or short shipments immediately upon receipt and reasonable inspection of goods. Customer will notify Leadway in a timely manner of all complaints regarding product performance. Customer shall cooperate and assist Leadway in an investigation of facts concerning any inquiry or complaint. Customer takes all responsibility for complying with all regulatory requirements in the countries where they market any products.
Pricing and Tax Information
The pricing of all products is pre-defined in the written agreement with the Customer. For each shipment of all products, Leadway will render invoices to the Customer in accordance with the pre-defined payment terms. The Customer shall pay all sales, use, VAT, and transfer taxes, and all export and import duties, and all other charges arising out of the purchase and sale of all products, including any state and local personal property taxes and all inspection fees, duties, and other charges applicable to the sale and transport of all products by the Customer. Leadway shall not be responsible for any business, occupation, withholding or similar tax, or any taxes of any kind, relating to the purchase and sale of all products, other than for income taxes on Leadway’s taxable income.
Delivery and Shipping Terms
The Customer shall place its firm purchase order to buy any products by submitting in writing to Leadway a purchase order which identifies the products, quantities, and requested date for shipment. The purchase order shall not contain any provisions or obligations which are inconsistent with this document, or which impose any additional obligations, unless expressly approved in writing by both parties. The Customer will furnish to Leadway on a monthly basis a written rolling six (6) month forecast of the Customer’s estimated purchases of all products. The forecast for the most current five weeks of each forecast shall be firm commitments of the Customer to purchase all products for shipment within said five weeks. For each forecast of all products, the amount of all products ordered for delivery in the first of the three (3) calendar months forecasted shall be no less than seventy-five percent (75%) and no more than one hundred twenty-five percent (125%) of the most recent previous forecast for said months, unless otherwise agreed to in writing by Leadway. Leadway will arrange for the common carrier shipment and transit insurance, and the Customer will cooperate to facilitate such shipment. If Leadway is unable to comply with the requested shipment delivery time, Leadway shall notify the Customer in writing within a maximum of seven (7) working days from the date of the relevant purchase order, and an acceptable alternative shipment delivery schedule shall be determined in good faith between the Parties at that time. Leadway shall have no liability for any delay in the shipment or delivery of any products. However, any delays caused by Leadway shall entitle the Customer to an equitable corresponding reduction in the Minimum Purchase Volume (MPV) for the affected time period. Further, any material delays shall entitle the Customer to terminate any agreement. Leadway reserves the right to make partial shipments of products to the Customer, when reasonably necessary, so long as at least 90% of the entire quantity ordered is delivered to the Customer by the originally expected receipt date. For each purchase order, Leadway may deliver a quantity of products up to ten percent (10%) less or ten percent (10%) greater than the number of products ordered.
Payment Terms
The Customer shall make payments for all products by wire transfer in US dollars in accordance with the pre-defined terms in the written agreement. Except for invoices disputed for good cause and in good faith by the Customer, Leadway reserves the right to withhold shipments of any and all products sold to the Customer if the Customer’s payment for any invoice for any previous shipment of any product is not paid on time. The Customer will pay to Leadway a late payment charge equal to 12% per annum accruing on any delinquent payment amount. The initial credit limit will be agreed upon by the Customer and Leadway and Leadway reserves the right to review and revise said credit limits based on Leadway’s review of several factors, which may include the Customer’s financial and credit information, sales quantity and payment history. When exceeding the credit limit, the Customer can choose to pay the outstanding invoices in advance or make prepayment for the new orders.
Customer Product Inspection, Acceptance and Return Authorization Policy
The Customer shall have ten (10) business days following its receipt of the products to inspect and test the products to ensure that they substantially conform to all product specifications, and to notify Leadway in writing of any non-conformance. No products will be accepted for return without prior authorization. A “Return Authorization Number” must accompany all authorized returns. Leadway must be contacted in order to receive a “Return Authorization Number.” Replacement credits or refunds will be given for non-conforming products. Out-of-warranty or expired products are not returnable.
Warranty and Disclaimer
Leadway warrants that all products sold to the Customer shall conform in all material respects to the specific product specifications throughout the duration of the stated shelf life for any and all products, comply with the written specifications for each product as contained in the Leadway Product Data Sheet, label or literature, are manufactured in accordance with good manufacturing practices (“cGMP”), and will be sold to the Customer free and clear of all liens. EXCEPT AS EXPRESSLY STATED, LEADWAY MAKES NO WARRANTIES TO ANY PARTY, EXPRESS OR IMPLIED, BY STATUTE OR OTHERWISE. LEADWAY SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF THIRD-PARTY RIGHTS. IN NO EVENT SHALL LEADWAY BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS BY THE CUSTOMER. This warranty does not extend to any product that has been altered in any way, or to any product that has been handled in a manner contrary to the Product Data Sheet, label, or literature. In no event shall Leadway be liable to the Customer for any cause of action or claim of any nature, regardless of whether characterized as tort, negligence, contract, warranty, or otherwise, for any consequential damages, indirect or incidental damages, special damages, loss of profits or business, or punitive damages. In no event shall Leadway’s liability exceed the purchase price of any non-conforming product giving rise to any claim.
Applicable Law
Leadway is delegating authority to its affiliate, ACON Laboratories, Inc., a California corporation (“ACON”), to manage and administer matters concerning governmental registrations for all products, quality control for all products, and warranty claims for all products. Leadway hereby delegates authority to ACON, as an affiliate and agent of Leadway to monitor and enforce the Customer’s performance obligations under this Terms and Conditions Agreement. This Agreement shall be governed, interpreted, and construed in all respects in accordance with the internal laws of the United States of America and the State of California, without regards to its conflicts of laws provisions. The United Nations Convention on Contracts for the International Sale of Goods expressly does not apply.
Technical Support
Technical support is provided for all products purchased directly from Leadway. The Technical Support Department can be contacted directly at (800) 838-9502 between 8:00am and 8:00pm Pacific Time Monday through Friday, or via email at support@www.aconlabs.com. A messaging service is available for Blood Glucose product inquiries after regular hours and on the weekends.
Ordering Information
Customers in the United States may submit written purchase orders to us_orders@www.aconlabs.com or via fax at (858) 731-8427. Questions concerning recently placed purchase orders can be directed to US Customer Service at (858) 875-8027. Customers in Europe, Latin America, Australia, New Zealand and Japan may submit written purchase orders to intl_orders@www.aconlabs.com or via fax at (858) 200-0729. Questions concerning recently placed purchase orders can be directed to International Customer Service at (858) 875-8038. No purchase order will be binding upon Leadway unless and until accepted by Leadway in writing. The Customer will not be allowed to cancel or reschedule any purchase order after acceptance by Leadway without Leadway’s written consent. Leadway may cancel or terminate all or part of any purchase order if the Customer is delinquent on any of its obligations with Leadway.