COMMERCIAL INDUSTRIAL LED LIGHT MANUFACTURER

Terms and conditions

INITIAL-LED’s Standard Terms and Conditions of Sale (“Standard Terms”) terms shall govern all sales transactions, and neither Customer’s purchase order nor any other writing from Customer shall be binding or have any force or effect on INITIAL-LED. These Standard Terms are effective for all sales of INITIAL-LED products from and after the date indicated above. Customers who do not accept these Standard Terms should not order or accept delivery of products from INITIAL-LED. By ordering or taking delivery of INITIAL-LED’s products, Customer accepts these Standard Terms. These Standard Terms may be amended from time-to-time by INITIAL-LED and shall govern any additional Customer orders made after such amended Standard Terms are made public. These Standard Terms, in conjunction with the applicable INITIAL-LED invoice, include all the terms, warranties, and conditions pertaining to each transaction between Customer and INITIAL-LED, and can in no way be altered, modified or changed except by a writing manually signed by a INITIAL-LED officer (Vice President or higher).

ORDERS/ PRICING

All orders must be accepted in writing by INITIAL-LED. Once accepted by INITIAL-LED, all orders are final and not subject to cancellation, except that INITIAL-LED may put on hold or cancel (or cancel any order on hold) any previously accepted order pending resolution to INITIAL-LED’s satisfaction of any Customer credit issue; in the case of such a hold, prices are confirmed for thirty (30) days during such hold from the date the order was first accepted.

Prices do not include any taxes (including without limitation VAT, excise taxes, customs duties, or federal, state or local sales taxes) or other government charges (collectively, “Taxes”). All such Taxes are the responsibility of Customer, and INITIAL-LED may include any such Taxes in the same invoice to Customer as the INITIAL-LED products or in a separate invoice. Payment by INITIAL-LED of any such Tax does not relieve the Customer of payment responsibility, and all such amounts paid on Customer’s behalf shall be amounts owed from Customer to INITIAL-LED on demand. Unless otherwise provided, every shipment of INITIAL-LED’s products is made from our facilities located in, Quebec, Canada.

PAYMENT TERMS

Unless otherwise provided elsewhere in these Standard Terms or in an INITIAL-LED invoice, terms are net 30 from date of invoice. INITIAL-LED will assess a 1½% monthly service charge (or such lesser amount as permitted by law) to all past due accounts. The Customer will be liable for all legal fees incurred by INITIAL-LED in the event that legal action is required to collect any amount owing under a past due account.

Payment terms are subject to review of Customer’s credit. INITIAL-LED shall have the right, from time to time, as a condition to order acceptance or product shipment of an accepted order, to require assurance of payment satisfactory to INITIAL-LED. Such assurance may take the form of an irrevocable letter of credit. All amounts owed and payments to INITIAL-LED shall be without set-off, deduction, or counterclaim.

Should Customer be required by law to withhold amounts otherwise due INITIAL-LED, then Customer’s payments to INITIAL-LED shall be increased to such an amount as is equal to the amount owed INITIAL-LED not including the withhold.

Customer hereby grants INITIAL-LED a security interest in the INITIAL-LED products sold to it until payment of the full purchase price, including, without limitation, any shipping costs and charges and Taxes is made to INITIAL-LED. Customer agrees to execute any financing statements or other documents as INITIAL-LED requests to perfect or protect or maintain INITIAL-LED’s security interests.

SHIPMENT/DELIVERY/STORAGE

All shipment and delivery dates on INITIAL-LED orders are a best approximation of probable shipment and delivery dates and are not guaranteed. INITIAL-LED shall not be liable for costs, expenses or damages incurred by any party due to shipment or delivery after any estimated date.

INITIAL-LED and its Customer’s shall for each order, determine which party will be responsible for the shipping and logistic payment related to the products sold. The parties may agree from time to time to subject the sale of the products to Incoterms 2010 standards (F.C.A.; Ex Works factory, etc.).

All and any legal consequence arising as a result of the Incoterms 2010 applicable to each sale will be determined accordingly.

The Customer must inspect the merchandise upon delivery and report any apparent error or defect to INITIAL-LED within seven (7) days of said delivery; should the Customer fail to do so it shall be conclusively presumed that the products were delivered in accordance with the purchase order. Damage to or loss of any goods in transit must be noted on the carrier’s delivery freight bill. INITIAL-LED will provide the Customer with assistance in order for Customer to file a claim with the carrier; however, Customer may not withhold whole or partial payment pending carrier settlement.

To prevent damages or changes in the performance characteristics of INITIAL-LED products, storage temperature must remain between -40°C and +85°C (-40ºF and 185ºF). Recommended startup temperature range is -25°C to +85°C (-13ºF and 185ºF).

COMPLIANCE WITH LAWS, INCLUDING EXPORT/IMPORT RESTRICTIONS

With respect to the purchase and, if applicable, resale, of INITIAL-LED products, it is the responsibility of Customer, at its sole cost and expense, to comply with all applicable laws and regulations of any government or other competent authority, including those regarding export or import, and to maintain all necessary permits, licenses and consents. All shipments of INITIAL-LED products are subject to applicable export and import laws, including without limitation those of Canada and the United States. INITIAL-LED shall have no liability for delayed delivery or non-delivery resulting from denial, revocation, suspension, or governmental delay in issuance of any necessary export license or authority.

LIMITED WARRANTY

INITIAL-LED warrants that, for five (5) years from the date of shipment to Customer, each product will be free from any defects in materials and workmanship which cause the product to fail to operate in accordance with the products’ performance specifications as they exist at the time of shipment. Each product’s performance specifications are shipped with the product.

This limited warranty is void if the product is (i) installed improperly or otherwise not in accordance with the installation instructions, which are shipped with the product or any applicable standards or codes, such as, without limitation, those standards of codes of the National Electrical Code, the Standards for Safety of Underwriters Laboratory, Inc., the Conformité Européenne, or the Canadian Standards Association, (ii) altered or repaired other than as authorized in writing by INITIAL-LED, (iii) misused or abused, whether intentionally or not, including without limitation if the product is used at any time in an environment or operating range, or subjected to electrical values, in excess of those specified in the product’s performance specifications, (iv) damaged due to Acts of God, (v) used in violation of any applicable standard or code for use, such as, without limitation, those standards or codes of the Standards for Safety of Underwriters Laboratory, Inc., the Conformité Européenne, or the Canadian Standards Association, (vi) used other than as a stand-alone product (i.e. integrated into another lighting product) or (vii) damaged in transit or handling, or (viii) damaged due to a power surge or other electrical problems. INITIAL-LED’s obligation under this limited warranty is limited to, at INITIAL-LED’s option, either the repair or replacement of the product. If the product has been discontinued or is no longer available, “replacement of the product” shall mean a comparable product as determined by INITIAL-LED. INITIAL-LED’S OBLIGATIONS UNDER THIS LIMITED WARRANTY DO NOT INCLUDE ANY OTHER COSTS OR EXPENSES, SUCH AS, WITHOUT LIMITATION, ANY COSTS OR EXPENSES OF REMOVAL OR REINSTALLATION WHATEVER THE CAUSE OR HOWEVER INCURRED OR IMPOSED (FOR EXAMPLE AND WITHOUT LIMITATION, LABOR COSTS OR EXPENSES, ADMINISTRATIVE COSTS, OR REQUIREMENTS OF LAW OR ANY GOVERNMENTAL AGENCY OR BODY).

In order to take advantage of this limited warranty, the Customer must return the allegedly defective product to INITIAL-LED in accordance with the “Return” policy set forth below within the specified warranty time period.

This limited warranty extends only to the Customer placing the order with INITIAL-LED. In the event Customer is authorized by INITIAL-LED to resell products to end users (such purchasing end users are referred to herein as “End Users”), the limited warranty in these Standard Terms shall apply to all such sales as coming from Customer, and Customer shall handle all returns directly with such End User; provided, however, that INITIAL-LED (not Customer) shall determine if (i) the Product breached the terms of its limited warranty and (ii) whether INITIAL-LED’s obligation under such limited warranty shall be either the repair or replacement of the product

THIRD PARTY WARRANTIES

WITH RESPECT TO NON-INITIAL-LED PRODUCTS SOLD BY INITIAL-LED, INITIAL-LED DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY. To the extent allowed, however, and if requested by Customer, INITIAL-LED will make available to Customer the warranties such third party makes available to purchasers of its products.

EXCLUSION OF WARRANTIES

THE REMEDY SET FORTH ABOVE IN “LIMITED WARRANTY” SHALL CONSTITUTE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY ACTUAL OR ALLEGED DEFECT OF ANY PRODUCT. THE LIMITED WARRANTY SET FORTH IN “LIMITED WARRANTY” IS IN LIEU OF, AND INITIAL-LED EXPRESSLY DISCLAIMS AND CUSTOMER EXPRESSLY WAIVES, ALL OTHER WARRANTIES AND REPRESENTATIONS OF ANY KIND WHATSOEVER WITH RESPECT TO PRODUCTS WHETHER EXPRESS, IMPLIED, STATUTORY, ARISING BY COURSE OF DEALING OR PERFORMANCE, CUSTOM, USAGE IN THE TRADE OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY. NO ORAL OR WRITTEN STATEMENT OR REPRESENTATION BY INITIAL-LED, ITS AGENTS OR EMPLOYEES SHALL CONSTITUTE OR CREATE A WARRANTY OR EXPAND THE SCOPE OF ANY WARRANTY HEREUNDER.

LIMITATION OF LIABILITY

TO THE EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL INITIAL-LED BE LIABLE TO CUSTOMER FOR ANY (I) SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR EXEMPLARY DAMAGES (EVEN IF INITIAL-LED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM PERFORMANCE OR FAILURE OF PERFORMANCE OF ANY PRODUCT OR PROVISION OF THESE STANDARD TERMS (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES), SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR (II) AMOUNT WHICH EXCEEDS THE PURCHASE PRICE OF THE PRODUCT TO WHICH SUCH LIABILITY RELATES. CUSTOMER ACKNOWLEDGES THAT THIS LIMITATION OF LIABILITY IS A MATERIAL FACTOR IN THE DETERMINATION OF PRODUCT PURCHASE PRICE AND THAT ACCEPTANCE OF THIS LIMITATION OF LIABILITY BY IT IS A FAIR ALLOCATION OF RISK.

RETURNS

End Users (those purchasing product directly from Customers of INITIAL-LED, and not from INITIAL-LED) should direct all inquiries for returns to the Customer from whom the End User purchased product, and not INITIAL-LED.

Customers wishing to return a Product must first contact INITIAL-LED directly and obtain a Return Merchandise Authorization (“RMA”) number. Customers may contact INITIAL-LED Monday through Friday 9:00 a.m. to 5:00 p.m. by speaking to their Inside Sales Representative at 1-855-677-3889 and stating the reason for the requested return.

If the reason for return is due to an alleged breach of the terms of the product’s limited warranty, INITIAL-LED shall send a RMA form to be completed and included with the returned product. If the reason for return is due to other than an alleged breach of the terms of the product’s limited warranty, INITIAL-LED may or may not issue a RMA, at INITIAL-LED’s sole discretion; in such a case, INITIAL-LED will not consider a return (i) beyond ninety (90) days from original invoice date, or (ii) for products that are not in resalable condition (including, for example and without limitation, because the products were used in a manner or otherwise subjected to conditions that would otherwise void the limited warranty). In any case, if a Product is returned to INITIAL-LED without a valid RMA number, delivery shall be refused and Customer shall be liable for all return shipping costs and charges, including, as applicable, all Taxes.

If a RMA number is issued, it is valid for only fifteen (15) days. Products not returned to INITIAL-LED within such timeframe shall not be eligible for any return, regardless of reason, and delivery shall be refused. If a RMA number is issued, Customer shall be responsible for all shipment costs and charges to INITIAL-LED, including, as applicable, all Taxes. When returning a product to INITIAL-LED, do not write on product box (including, without limitation, writing the RMA number or product description); doing so will result in a charge to cover any required replacements.

Whatever the reason a RMA number is issued, Customer shall bear sole risk for any product loss or damage while in transit

Under no circumstance with INITIAL-LED accept delivery of a product without a valid RMA number.

RETURNS DUE TO ALLEGED PRODUCT DEFECT

If, upon inspection, INITIAL-LED determines that a product has breached the terms of its limited warranty, INITIAL-LED shall reimburse Customer for Customer’s shipment costs and charges and all Taxes in returning the Product to INITIAL-LED, but only up to the amount of standard UPS non-expedited surface charges from Customer’s destination to Montreal (or other location when specifically indicated within the RMA). If INITIAL-LED determines that it shall repair or replace a product that has breached the terms of its limited warranty, shipping terms and procedures for such repaired or replaced product shall be as above stated in “Shipment/Delivery”, except that INITIAL-LED, so long as it determines routing and mode of transportation, shall be responsible for all shipping costs and charges and all Taxes.

If, upon inspection, INITIAL-LED determines that a product has not breached the terms of its limited warranty, INITIAL-LED shall return the product to Customer at Customer’s expense, and otherwise according to the terms and procedures as above stated in “Shipment/Delivery”, provided that Customer prepays the shipping costs and charges and Taxes and pays INITIAL-LED an additional testing charge of 15% of the product price; if Customer does not pay such costs and charges and Taxes within ninety (90) days of invoice, INITIAL-LED shall be under no obligation to return the products to Customer, which shall become the exclusive property of INITIAL-LED. If the product is delivered to INITIAL-LED with missing or damaged parts or components, additional charges will result to cover any required replacements.

RETURNS NOT DUE TO ALLEGED PRODUCT DEFECT

If, upon inspection, INITIAL-LED determines in its sole discretion that a returned product is in resalable condition (for purposes of clarity and without limitation, a product will not be in resalable condition if used in a manner or otherwise subjected to conditions that would otherwise void the limited warranty) then INITIAL-LED shall replace the product for a comparable product at Customer’s expense, and otherwise according to the terms and procedures as above stated in “Shipment/Delivery”, provided that Customer prepays the shipping costs and charges and Taxes and pays INITIAL-LED a restocking fee of 50% of the product price; if Customer does not pay such costs and charges and Taxes and fees within ninety (90) days of invoice, INITIAL-LED shall be under no obligation to return the products to Customer, which shall become the exclusive property of INITIAL-LED. If the product is delivered to INITIAL-LED with missing or damaged parts or components, additional charges will result to cover any required replacements.

RESALES

If Customer is authorized by INITIAL-LED to resell Products to End Users, the terms of sale shall be these Standard Terms, and, unless otherwise provided for in these Standard Terms, all references to INITIAL-LED shall instead be references to Customer and all references to Customer shall instead be references to such End User. Even if authorized by INITIAL-LED to resell products to End Users, Customer may not (i) resell products for integration into a third party’s lighting products, (ii) remove or modify any INITIAL-LED patent notices or trademarks from a product, its packaging, or its supporting materials, or iii) resell any product at a price higher than the m.s.r.p. for any and all of INITIAL-LED’s products.

INDEMNIFICATION

Customer will at all times defend, indemnify and hold harmless INITIAL-LED and its officers, directors, shareholders, employees, accountants, attorneys, agents, affiliates, successors and assigns from and against any and all damages, injuries (including death), liabilities, costs and expenses, including reasonable legal fees and expenses arising out of or related to third party claims, actions or demands arising out of or related to any (i) breach of any provision in these Standard Terms by Customer or End User or (ii) improper or negligent installation or use, or unauthorized repair, or integration into another lighting product, of a Product by Customer or End User (or its agents). Customer shall not settle, compromise, or consent to the entry of any judgment with respect to any pending or threatened claim without INITIAL-LED’s consent unless the settlement, compromise or consent provides for and includes an express, unconditional release of all claims, damages, liabilities, costs and expenses, including reasonable legal fees and expenses, against INITIAL-LED.

APPLICABLE LAW

These Standard Terms shall govern all sales by INITIAL-LED; the law applicable to sales under these Standard Terms shall be the laws in force in the Province of Quebec, and any proceedings concerning the Standard Terms and/or to the relations between the parties shall be brought before the courts of competent jurisdiction in the judicial district of Montreal. The United Nations Convention on Contracts for the International Sale of Goods is hereby excluded and shall not apply. These Standard Terms have been drawn up in the English language at the express wish of the parties. La présente entente a été rédigée en anglais selon la volonté expresse des parties.

MISCELLANEOUS

If any of the provisions of these Standard Terms are deemed by a court of competent jurisdiction to be invalid or unenforceable in any respect, then, to the fullest extent permitted by applicable law, (a) all other provisions hereof such remain in full force and effect and (b) INITIAL-LED and Customer agree to use their best efforts to negotiate a provision, in replacement of the provision held invalid or unenforceable, that is consistent with applicable law and accomplishes, as nearly as possible, the original intention of the Standard Terms. The waiver by INITIAL-LED or Customer of a breach or a default of any provision of these Standard Terms by the other party shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has, or may have here under, operate as a waiver of any right, power or privilege by such party. Waivers must be acknowledged in a manually signed writing. Nothing herein shall be construed to create a partnership, joint venture or agency relationship between INITIAL-LED and Customer.