TERMS AND CONDITIONS OF SALE - LEUCOS USA Inc.

These standard terms and conditions of sale (“Terms and Conditions”) apply to any and all orders placed by purchaser (“Purchaser”) for purchases of products or services (together, “Products”) from and after December 1, 2017 from Leucos USA, Inc. and its affiliates (“Leucos”), whether or not such purchase is subject to a signed purchase order, distribution or other agreement between Leucos and Purchaser. Ordering Products from Leucos constitutes acceptance of the terms set forth herein, as such terms may have been updated through the date of such order. Any different, or additional terms in any purchase order, blanket instructions or other writing from Purchaser shall be deemed a material alteration hereof and are hereby expressly objected to and rejected and shall be of no force or effect. Commencement of performance or shipment shall not be construed as acceptance of any of Purchaser’s terms and conditions which are different from or in addition to those contained in the Agreement.

Course of performance or usage of trade shall not be applied to modify these Terms and Conditions.

 

ORDERS; CHANGES AND CANCELLATIONS

All orders must be placed in writing and delivered directly to Leucos from the entity that will be liable for the payment of the order. Telephone or verbal order or orders through a third party will not be accepted. Leucos shall in no way be responsible for any errors made by the purchaser in the type or quantity of Products ordered. It is Purchaser’s responsibility to review the order confirmation upon receipt and report any errors or omissions to the Company in writing immediately.

Orders can be mailed or faxed to an authorized Leucos representative or placed directly to: Leucos

Leucos USA, Inc.
Customer Service Department
11 Mayfield Ave
Edison NJ 08837
Tel: +1 (732) 225 0010
Fax: +1 (732) 225 0250
Email: customerservice@leucosusa.com

All orders that are accepted by Leucos are subject to these Terms and Conditions. After acceptance, requests to cancel or change orders must be submitted in writing to Leucos’s Customer Service Department. Any requests to cancel or change orders received by Leucos after shipment of Products are subject to written approval as well as a restocking charge of fifty percent (50%) of Leucos’s invoiced Product value. Any shipment charges incurred shall remain Purchaser’s responsibility. All requests are reviewed for approval before processing and are subject to any and all cost or expense incurred by Leucos from such cancellation or change including, without limitation, costs for work performed and/or materials purchased by Leucos for Products. Hold orders may be accepted for informational purposes only. Procurement and production process will not be initiated and delivery commitments will not be provided without firm release dates.

Any order submitted to Leucos as “hold for release” or similar will not be accepted by Leucos unless accompanied by a fifty percent (50%) non-refundable deposit.


PRICES

All prices represent those in effect at the time of quotation and are subject to change without notice. All prices are as stated in Leucos’s quote and specifically override any prices referenced in Purchaser’s purchase order. Unless prices are quoted as “firm” by an officer of Leucos, Leucos reserves the right to invoice prices in effect at the date of shipment, regardless of any prior quote and regardless of whether notice was received by Purchaser. All prices and other terms are subject to correction for typographical or clerical errors.


SALES MATERIALS; SPECIFICATIONS

Any catalog, specification or price sheet or other similar documentation prepared by Leucos is strictly for the convenience of the user and shall not be deemed as an offer to sell. Leucos believes such documentation is complete and accurate at time of printing, but does not warrant that such documentation is error free. Leucos will not accept responsibility for any damages including labor charge backs in connection with errors of measurements, descriptions, application recommendations, etc.
Products will be shipped in accordance with the standard styles and sizes as described in Leucos’s catalogs or, for special or made-to-order Products, in accordance with Leucos’s drawings and specifications sheets. In the event of a conflict between a customer’s written order and a Leucos drawing or specification sheet marked “approved” or the like, the Leucos drawing or specification sheet shall prevail. Leucos reserves the right to change details of design, materials and finish at any time without written notice.

 

TERMS OF PAYMENT

Unless otherwise stated in Leucos’s invoice or agreed to in writing by Leucos, terms of payment for orders placed by Purchasers with an open and current Leucos credit account, as determined by Leucos in its sole and absolute discretion, are net 30 days from invoice date. For Purchases with no open and current Leucos credit, as determined by Leucos in its sole and absolute discretion, and for the initial order for all new Purchaser accounts, payment in full is required prior to shipment or delivery. Such advance payment must include all requisite freight and transportation charges, as well as all taxes, customs, duties, tariffs, and insurance related to the Products.
The terms of payment are subject to review of Purchaser’s credit by Leucos. Leucos shall have the right, at any time and from time to time, to require cash payments in advance or a letter of credit or other assurance of payment satisfactory to Leucos as a condition to acceptance of any order or shipment of any Product. Unless otherwise agreed to by Leucos, payment shall be by check to be drawn on Purchaser’s corporate account, by wire transfer to Leucos’s account at a commercial bank designated by Leucos, or by Leucos’s draw upon a letter of credit satisfactory in form and substance to Leucos.
The requirement of a letter of credit or advanced payment is standard for shipments outside the United States for special products, and for F.O.B. factory orders. All payments by Purchaser shall be made in United States Dollars and shall be paid in full, without set-off, deduction or counterclaim.
All orders under fifty dollars ($50.00), net any applicable discounts (exclusive of any requisite freight and transportation charges, as well as all taxes, customs, duties, tariffs, and insurance related to the Products), shall be subject to a twenty-dollar ($20.00) surcharge.
All orders exceeding ten thousand dollars ($10,000.00), net any applicable discounts, a fifty percent (50%) non-refundable deposit must be paid by Purchaser to Leucos at the time of order. For all orders requiring customization (including, but not limited to, a custom finish and/or modifications), a fifty percent (50%) non-refundable deposit must be paid by Purchaser to Leucos at the time or order, and once submitted such orders cannot be cancelled by Purchaser.

 

TAXES AND GOVERNMENTAL CHARGES

Prices do not include any taxes or other governmental fees, charges or assessments, including, without limitation, value-added, sales, use or privileges taxes, required governmental withholdings or excise or similar taxes levied by any government, now or hereafter enacted. In Leucos’s discretion, any such taxes, charges or withholdings may be added to the price for any Products or may be billed separately. Purchaser will pay all such taxes and charges, on or before their due dates. In the event Leucos is required at any time to pay any such tax or charge, Purchaser will reimburse Leucos promptly on demand.

 

LATE CHARGES; COSTS

If Purchaser fails to pay in full without any set off or deduction any amount due to Leucos promptly when due, Leucos may recover, in addition to the payment due, interest thereon at a rate equal to the lesser of 1-1/2% per month and the maximum rate of interest allowable under applicable law and Purchaser shall be liable for all costs and expenses, including reasonable attorneys’ fees, incurred by Leucos in collecting or attempting to collect any and all overdue accounts. If Purchaser fails to pay any amount when due, in addition to any other rights or remedies available to Leucos at law or in equity, Leucos may discontinue the performance of services, discontinue the delivery of the product, or deduct the unpaid amount from any amounts otherwise owed to Purchaser by Leucos under any agreement with Purchaser.

 

SECURITY INTEREST

Purchaser hereby grants to Leucos a purchase money security interest in the products until all payments have been made. Purchaser shall sign any financing statements or other documents necessary to perfect Leucos’s security interests in the products. Where permitted by applicable law, Purchaser’s signature on the quotation or on a purchase order issued as a result of the quotation gives Leucos the right to sign on Purchaser’s behalf and file any financing statement or other documents to perfect Leucos’s security interest in the product.

 

PACKAGING AND HANDLING

Leucos shall determine the method of packaging for all Products. If Purchaser requires special packaging or handling, such request must be made in writing and charges for special packaging, handling, and delivery shall be added to the price of the Products. Unless specifically agreed to in writing, Leucos will not be responsible for the payment of any penalties or special handling charges relating to Leucos’s failure to comply with a customer’s special requirement for order processing, handling, packaging, shipping or invoicing.

 

SHIPMENT, DELIVERY AND TITLE

Products will be tendered and shipped FOB (Incoterms 2010) Leucos’s New Jersey plant or warehouse and title to and risk of loss of the Product shall pass to Purchaser at such point. Purchaser shall obtain and pay for insurance covering such risks at such destination. Leucos will select the carrier and routing and ship Products freight prepaid and added to the price of the Products. Leucos may, in its discretion, choose to make partial shipments and shall bill each shipment as it is made, but on terms applicable to the complete order.

 Delivery dates of all shipments are estimated and are not guaranteed. The shipment date mentioned on Leucos’s quote or order acknowledgement, if any, is Leucos’s approximation of a shipment date, and is not a fixed or guaranteed shipment date. Leucos assumes no liability in connection with any delay in delivery. Postponement of deliveries at Purchaser’s request, if for a period of more than ten (10) days, will not be permitted unless prior approval is given by an authorized officer of Leucos. Any claims for shortages, losses, or damages sustained in transit shall be made by Purchaser with the carrier and must be documented on delivery receipt. Upon request, Leucos will provide evidence of delivery of Products to the carrier, but reserves the right to charge a reasonable fee for all proof of delivery requests.

 

STORAGE

Purchaser shall pay any detention, storage, handling or auxiliary charges assessed by carriers or warehousemen resulting from Purchaser’s requirements for special service or Purchaser’s failure to accept delivery in a timely manner.

 

PRODUCT ACCEPTANCE

All Products delivered hereunder shall be deemed accepted by Purchaser as conforming to this Agreement, and Purchaser shall have no right to revoke any acceptance, unless written notice of the claimed nonconformity is received by Leucos within five (5) days of delivery thereof. Notwithstanding the foregoing, any use of a product by Purchaser, its agents, employees, contractors or licensees, for any purpose, after delivery thereof, shall constitute acceptance of that product by Purchaser.


FORCE MAJEURE

Leucos shall have no liability or obligation in connection with any failure to manufacture or deliver due to causes beyond Leucos’s reasonable control including but not limited to strikes, lockouts, fires, riots, wars, acts of God, inability to obtain materials, components or supplies, failure or breakdown of machinery, production scheduling delays, government regulations or other conditions.

 

PRODUCT RETURNS

In the event it is necessary to return Products to Leucos, Purchaser must follow the procedure outlined in these Terms and Conditions.

For Purchasers who received their Products from an authorized distributor of Leucos, the procedure outlined below should be directed to, and the term “Leucos” shall mean, such distributor. To obtain approval to return Products to Leucos, Purchasers must contact Leucos’s Customer Service Department within five (5) days of delivery. If a return is approved, a packet will be prepared and mailed to the Purchaser within two standard business days containing (i) a Return Merchandise Authorization (“RMA”) number; and (ii) the authorized RMA form, to be included with the return shipment.

NO PRODUCT RETURNS WILL BE ACCEPTED BY LEUCOS IF NOT ACCOMPANIED BY A VALID RMA NUMBER.

Product returned without a RMA number will either be refused or returned to Purchaser at Purchaser’s expense. Leucos is not liable for loss or damage to unauthorized product returns. Once issued, RMA numbers are valid for 30 days. Any returns received after 30 days of the issuance of an RMA will be refused. Purchaser is responsible for all return freight charges, including taxes, customs and duties if applicable. All product returned for credit must be new, undamaged, and in factory sealed packaging. Product may not be returned if it is non-standard, made-to-order, or manufactured to Purchaser’s specific design or specification (including units with non-standard components or accessories), or is outdated or phase-out stock product. Any product returned with marked box, damaged box, missing components, (e.g. cables, manuals, etc.), or other damage not caused by Leucos will be assessed a higher restocking fee to cover the cost of replacements.

 All Products returned are subject to inspection. Unsalable and damaged merchandise may be credited at salvage value or less costs of repairs. Credit can be issued only on Products resalable as new. Leucos may at its option issue credit at prices prevailing at time of shipment, or time of return, whichever is lower, less the any applicable restocking or other charges.

 Returns authorized by Leucos, other than return of defective products which are subject to the terms of Leucos’s applicable Limited Warranty, will be subject to a thirty percent (30%) restocking fee and Purchaser will pay all transportation costs associated with the return, including taxes, customs and duties, if applicable.

 

LIMITED WARRANTY

Leucos warrants that its Products will be free from defects in material and workmanship for a period of 1 year from the date of delivery, when used as directed. If a Product does not conform to the warranty, Leucos will send Purchaser, at its election, a replacement product or refund the original price upon receipt of the returned product, register receipt and proof of purchase. Please contact our Customer Service Department to find out how to return Products. This limited warranty does not cover products subject to accident, neglect, abuse, misuse or acts of God. REPLACEMENT OR REFUND IS YOUR SOLE REMEDY. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO THE DURATION OF THIS WARRANTY. LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES IS HEREBY EXPRESSELY EXCLUDED.

Some states and provinces do not allow exclusion of incidental or consequential damages, so the above limitation or exclusion may not apply to you. This warranty gives you specific legal rights, and you may also have other rights which vary from state to state.

THE WARRANTIES SET FORTH HEREIN AND IN THE PRODUCT WARRANTY ARE THE ONLY WARRANTIES MADE BY LEUCOS IN CONNECTION WITH THE PRODUCT AND ARE EXPRESSLY IN LIEU OF ANY OTHER WARRANTIES, WHETHER WRITTEN, ORAL, STATUTORY, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

 

EXPORT CONTROL

Purchaser understands that certain transactions of Leucos are subject to export control laws and regulations, such as but not limited to the UN, EU and the USA export control laws and regulations (“Export Regulations”), which prohibit export or diversion of certain products and technology to certain countries. Any and all obligations of Leucos to export, re-export or transfer Products as well as any technical assistance, training, investments, financial assistance, financing and brokering will be subject in all respects to such Export Regulations and will from time to time govern the license and delivery of Products and technology abroad by persons subject to the jurisdiction of the relevant authorities responsible for such Export Regulations. If the delivery of products, services and/or documentation is subject to the granting of an export or import license by certain governmental authorities or otherwise restricted or prohibited due to export/import control regulations, Leucos may suspend its obligations and the Purchaser’s/end-user’s rights until such license is granted or for the duration of such restrictions or prohibitions. Furthermore, Leucos may at its option terminate the relevant order in all cases without incurring any liability towards the Purchaser or end-user.

Purchaser warrants that it will comply in all respects with the export, re-export and transfer restrictions set forth in such Export Regulations or in export licenses (if any) for every Product supplied to Purchaser. Purchaser accepts the responsibility to impose all export control restrictions to any third party if the items are transferred or re-exported to third parties. Purchaser shall take all actions that may be reasonably necessary to ensure that no customer/purchaser or end-user contravenes such Export Regulations. Purchaser shall indemnify Leucos against any and all direct, indirect and punitive damages, loss, costs (including attorney’s fees and costs) and other liability arising from claims resulting from Purchaser’s or its customers’ breach or non-compliance with this section.


ANTI – BRIBERY

Purchaser and its owners, officers, directors, employees, or agents have not and will not engage in any activities that violate the United States Foreign Corrupt Practices Act, the UK Bribery Act, or any other anti-corruption laws or laws prohibiting the payment of commercial or private bribes. In particular, and not in limitation of the foregoing, Purchaser and its owners, officers, directors, employees, or agents will not pay, offer, or promise to pay, or authorize the payment directly or indirectly, of any money, gift, or anything of value to any Government Official, as defined below, for the purpose of influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person. As used in this Section, “Government Official” means any minister, officer, director or employee of a government or any department, agency, or instrumentality thereof, or of a public international organization (such as the World Bank, International Monetary Fund or United Nations), or any person acting in an official capacity for or on behalf of any such government or department, agency, or instrumentality, or for or on behalf of any such public international organization.

 

INDEMNIFICATION

Purchaser shall indemnify, defend and hold harmless Leucos and its officers, directors, agents, employees, affiliates, successors, and assigns from and against all losses, liabilities, costs and expenses arising out of or in connection with any claim by third parties for any loss, damage or injury or death caused or alleged to be caused by: (a) the negligent use, application, or installation of Product by Purchaser or its employees, partners to whom Purchaser sold Product, contractors, agents or affiliates, (collectively, “Purchaser Parties”); or (b) the modification of Product or integration of Product into other products by any of the Purchaser Parties unless authorized in writing by Leucos. Purchaser shall not join, settle or otherwise attempt to affect or dispose of any such claim without Leucos’s written consent.

 

PROPRIETARY RIGHTS

Leucos shall defend any suit or legal proceeding brought against Purchaser by a third party based on a claim that the manufacture and sale of a Product, or any part thereof, constitutes infringement of any patent of the United States, if notified promptly in writing and given authority, information and assistance (at Leucos’s expense) for defense of same, and Leucos shall pay damages or costs finally awarded against Purchaser therein to the extent that such damages and costs are directly and solely attributable to such infringement. The use of such Products by Purchaser is beyond the control of Leucos and Leucos has no obligation or liability whatsoever in connection with any suit claiming infringement by reason of the use of the Products.

Notwithstanding the foregoing, with respect to all Products manufactured by Leucos, either in whole or in part, to Purchaser’s designs, specifications or instructions, Purchaser shall defend and hold harmless Leucos from all liability, loss, cost and expense (including attorney’s fees) resulting from claims of alleged infringement of patents, designs, copyrights, trademarks, and other proprietary rights.

If any Product is, or in Leucos’s opinion is likely to become, the subject of a claim of infringement under this Section or if Leucos receives from a claim of infringement from a third party in relation to any of the Products, Leucos shall have the right, without obligation or liability and at its sole option, to: (i) procure for Purchaser the right to continue to use or sell the Product; (ii) replacement the Product with a non-infringing product, or (iii) modify the Product in such a way as to make the modified Product non-infringing; or (iv) repurchase such Product from the Purchaser for the initial price paid by Purchaser less reasonable depreciation; or (v) suspend or discontinue supplies to Purchaser of the Products or parts to which such notice relates or (vi) terminate any agreement to the extent related to such Product.

 

CONFIDENTIALITY

Purchaser shall maintain as confidential any information furnished or disclosed to it by the Leucos, whether disclosed in writing or disclosed orally, relating to the business of Leucos, its customers, employees, and/or its patients, and the quotation and its terms, including the pricing terms under which Purchaser has agreed to purchase the products. Purchaser shall use the same degree of care to protect the confidentiality of the disclosed information as it uses to protect the confidentiality of its own information, but in no event less than a reasonable amount of care. Purchaser may disclose such confidential information to its employees on a “need to know” basis necessary to perform the transactions contemplated herein. The obligation to maintain the confidentiality of such information shall not extend to information that (a) is or becomes generally available to the public without violation of these Terms and Conditions or any other obligation of confidentiality or (b) is lawfully obtained by the Purchaser from a third party without any breach of confidentiality or violation of law.

 

SOFTWARE LICENSE

Any software included with a Product or otherwise licensed by Leucos to Purchaser, is licensed and not sold. The license is nonexclusive and is limited to use with the Product. No other use is permitted and Leucos retains for itself (or, if applicable, its suppliers) all title and ownership to any software delivered hereunder, all of which contains confidential and proprietary information and which ownership includes, without limitation, all rights in patents, copyrights, trademarks and trade secrets. Purchaser shall not sell, transfer, sublicense, reverse engineer or disassemble or redistribute the software. Purchaser shall not copy, disclose, or display any such software or otherwise make it available to others. Software licensed or provided by Leucos to Purchaser may require that Purchaser agree to a separate service agreement or terms of use in connection with the license or use of such software. Purchaser hereby agrees (i) to be bound by any such service agreement or terms of use to the extent accepted by Purchaser prior to use of the software and (ii) that such terms shall be in addition to those set forth herein. To the extent that there are any inconsistencies between the terms set forth herein and any software service agreement or software terms of use, the software service agreement terms or terms of use, as applicable, shall apply.

 

ENTIRE AGREEMENT

This Agreement constitutes the entire agreement of the parties and supersedes all prior negotiations, proposals, agreements and understandings, whether oral or written, relating to the products to be purchased hereunder or otherwise relating to the subject matter of this Agreement. Any representation, warranty, course of dealing or trade usage not expressly contained or referenced herein shall not be binding on Leucos. If the products purchased from Leucos are to be used in the performance of a government contract or subcontract, no government requirements or regulations shall be binding upon Leucos unless specifically agreed to by Leucos in writing.


APPLICABLE LAW; LIABILITY

These terms and conditions shall be governed and interpreted in accordance with the laws of the State of New Jersey, without regard to its conflict of laws principles. All disputes arising out of or in connection with these terms and conditions shall be resolved by a court of competent jurisdiction in the State of New York, and by purchasing Products the Purchaser agrees and consents to the exclusive jurisdiction of the state and federal courts located in the State of New York. The United Nations Convention on Contracts for the International Sales of Goods is hereby excluded and shall not apply.

UNDER NO CIRCUMSTANCES SHALL LEUCOS’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE SALE OF PRODUCTS, IN CONTRACT, TORT OR OTHERWISE, EXCEED THE PURCHASE PRICE OF THE PRODUCT TO WHICH SUCH LIABILITY RELATES. IN NO EVENT SHALL LEUCOS BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR COMPENSATORY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES RESULTING FROM LOSS OF USE, LOST REVENUES OR PROFITS, BUSINESS OR GOODWILL EVEN IF LEUCOS HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.

 

PRODUCT SAFETY

Purchaser shall comply fully with all applicable laws, industry safety standards applicable to the manufacture, distribution or sale of items incorporating the products supplied by Leucos, including but not limited to American Nationals Standards Institute (ANSI)/Illuminating Engineering Society of North America (IESNA) RP-27 (or equivalent eye safety labeling standards) and International Standard IEC 62471-2006, published by the International Electro technical Commission, including all marking, labeling, and supplemental user and service information (if any) required by the standards, where applicable. Purchaser shall comply fully with all applicable safety-related laws, rules and regulations of any governmental body having jurisdiction to regulate the manufacture, distribution or sale of items incorporating the products supplied by Leucos. Purchaser shall obligate all persons and entities buying such products from Purchaser (other than end users) to comply with such industry standards, laws, rules or regulations applicable to such person or entity. Purchaser shall defend and hold Leucos harmless against any expense, loss, costs or damages relating to any claimed failure by Purchaser to comply with such industry standards, laws, rules or regulations or from any bodily injury, illness or property damage resulting from products manufactured by Purchaser which incorporate the products supplied by Leucos.

 

GENERAL TERMS

Bankruptcy. If Purchaser becomes insolvent, is unable to pay its debts when due, files for bankruptcy, is the subject of involuntary bankruptcy, has a receiver appointed, or has its assets assigned, Leucos may cancel any unfulfilled obligations, or suspend performance; however, Purchaser’s financial obligations to Leucos shall remain in effect.

Assignment. Purchaser may not assign any rights or obligations in connection with the transactions contemplated herein without the prior written consent of Leucos, which consent shall not be unreasonably withheld, and any attempted assignment without such consent shall be of no force or effect.

Governing Law. All transactions contemplated by these Terms and Conditions shall be governed by the laws of the State of New York, without regard to that state’s choice of law principles. EACH PARTY, KNOWINGLY AND AFTER CONSULTATION WITH COUNSEL, FOR ITSELF, IT’S SUCCESSSORS’ AND ASSIGNS, WAIVES ALL RIGHT TO TRIAL BY JURY OF ANY CLAIM ARISING WITH RESPECT TO THIS AGREEMENT OR ANY MATTER RELATED IN ANY WAY THERETO.

Headings. The headings contained herein are intended for convenience only and shall not be used to interpret the terms hereof.

Severability. If any provision of these Terms and Conditions are deemed to be illegal, unenforceable, or invalid, in whole or in part, the validity and enforceability of the remaining provisions shall not be affected or impaired, and shall continue in full force and effect.

Performance. The failure of Purchaser or of Leucos at any time to require the performance of any obligation will not affect the right to require such performance at any time thereafter. Course of dealing, course of performance, course of conduct, prior dealings, usage of trade, community standards, industry standards, and customary standards and customary practice or interpretation in matters involving the sale, delivery, installation, use, or service of similar or dissimilar products or services shall not serve as references in interpreting these Terms and Conditions.

Obligations. Purchaser’s obligations are independent of any other obligations the Purchaser may have under any other agreement, contract, or account with Leucos. Purchaser will not exercise any right of offset in connection with the terms and conditions in the quotation or in connection with any other agreement, contract, or account with Leucos.


WARRANTY

The warranty obligations of Leucos Inc. (“Leucos”) for the Leucos brand lighting products (“Product”) are limited to the terms set forth below

1. Definitions.

a. “Authorized Dealer” means any Leucos authorized distributor, reseller or retailer that: (i) is duly authorized to conduct business in the jurisdiction where the Product is sold; (ii) is legally permitted to sell the Product under the laws of the jurisdiction where the Product is sold; and (iii) sells the Product new and in its original packaging.

b. “Buyer” means the party purchasing the Product in its original packaging from an Authorized Dealer. This Limited Warranty does not apply to persons or entities that bought the Product: (i) second hand or without its original packaging; (ii) for resale, lease or other commercial use; or (iii) from someone other than an Authorized Dealer.

2. Limited Warranty. Leucos warrants that all new Products will be free from defects in materials or workmanship, excluding the specific limitations set forth below.

3. Exclusions from Coverage. This limited warranty does not cover defects or damages resulting from the following circumstances: (i) normal wear and tear of the Products, including, but not limited to discoloration, natural weathering of finishes or other cosmetic changes; (ii) accident, misuse, abuse, neglect, unusual physical stress, alteration (including, but not limited to purchaser-applied finishes), improper operation, maintenance, handling or installation of the Product; (iii) damage during installation; (iv) repairs made by third parties not authorized by Leucos; (v) special modifications to the Product made by Leucos at Buyer’s specific request; (vi) exposure of the Product to hot or cold temperatures, wet environments, inappropriate climate conditions, including but not limited to, rain and humidity; (vii) loss of functionality of the Product in highly corrosive environments or due to exposure to conditions beyond performance and design specifications; and (viii) Product failure caused by factors other than defective workmanship or material. Without limiting the generality of the foregoing, this limited warranty does not cover the following: (i) Product failure caused by faulty power supplies, overheating caused by improper installation; (ii) failure caused by fires, misuse, accidents, abuse, neglect, mishandling, misapplication, improper handling/installation incurred by the user/installer or Acts of God (such as lightning or fluctuations in electrical power); (iii) Products which have been modified or have had the serial number altered, defaced or rendered illegible; (iv) Products left operating in conditions/requirements other than those mentioned in respective product brochures or user manuals; (v) any Product that was, at any time, used as a floor sample or display model; (vi) any Product purchased “as-is”; (vii) any Product used for commercial, institutional or other non-residential purposes (including, but not limited to, hotels, motels or institutional facilities); (viii) any Product purchased from Leucos or an Authorized Dealer that was manufactured by a third party other than Leucos or its parent company, including, but not limited to light bulbs; and (ix) minor variations in glass, natural wood grain, or other surface materials that do not affect product performance. In addition to the foregoing, hardware utilized in conjunction with the Product, which is subject to a manufacturer’s warranty is expressly excluded from this warranty.

4. This Limited Warranty shall be valid for a period of ONE (1) YEAR (the “Warranty Period”) from the date of the Buyer’s purchase. This Limited Warranty is not transferable and shall not extend to anyone other than the original Buyer of the Product. In order to avail itself of the benefits of the Limited Warranty provided herein, the Buyer must have paid in full for the Products purchased from Leucos.

5. In the event that a defect is discovered during the Warranty Period, after reasonable inspection by Leucos, should a Product be deemed defective as a result of a defect in materials or workmanship Leucos, at its election, will either (i) repair or replace the defective Product or (ii) provide replacement parts to the Buyer. Repair or replacement is at Leucos’s exclusive option. If Leucos chooses to replace the Product and is not able to do so because it has been discontinued or is not available, Leucos may substitute it with a comparable product or comparable materials. For purposes of clarity, “repair or replace the Product or the defective part thereof” does not include any reinstallation costs or expenses, including, without limitation, labor costs or expenses.

6. Leucos shall not be responsible for any labor or installation cost of replacement Products or parts or for transportation costs incurred in connection with the performance of the warranty work described above. The costs incurred by the Buyer to ship allegedly defective Products shall be refunded only if the Buyer is entitled to a remedy under this Limited Warranty. Costs incurred to ship replacement Products to the Buyer shall be paid for by Leucos. If the Buyer is not entitled to a remedy under this Limited Warranty, the costs incurred to return the Products to the Buyer shall be borne by the latter.

7. This Limited Warranty may be changed by Leucos at any time. The Limited Warranty set forth in this document is the only express warranty (whether written or oral) applicable to the Products within the United States of America, Canada and Mexico, and no one is authorized to modify or expand this Limited Warranty.

8. DISCLAIMER OF OTHER WARRANTIES. THE FOREGOING WARRANTY SHALL NOT EXCEED IN DURATION THE TERM SET FORTH HEREIN AND IS IN LIEU OF ALL OTHER WARRANTIES. LEUCOS MAKES NO ADDITIONAL WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY OF ITS PRODUCTS, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED, NOR DO THEY WARRANT THAT THE PRODUCT DOES NOT INFRINGE UPON THE PATENT, COPYRIGHT, OR TRADEMARK OF ANY THIRD PARTY. LEUCOS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF THE PRODUCT, AND IN NO EVENT SHALL LEUCOS’S LIABILITY EXCEED THE PURCHASE PRICE OF THE PRODUCT. ALTHOUGH THIS WARRANTY GIVES BUYER SPECIFIC LEGAL RIGHTS, THE BUYER MAY ALSO HAVE OTHER RIGHTS WHICH MAY VARY FROM STATE TO STATE.

9. Local Law. This Limited Warranty gives the Buyer specific legal rights. The Buyer may also have other rights which vary from state to state in the United States, from province to province in Canada and from state to state in Mexico. To the extent that this Limited Warranty is inconsistent with local law, this statement shall be deemed modified to be consistent with such local law. Under such local law, certain disclaimers and limitations of this Limited Warranty may not apply to the customer. For example, some states in the United States, as well as some governments outside the United States (including provinces in Canada), may: (i) preclude the disclaimers and limitations in this Limited Warranty from limiting the statutory rights of a consumer; (ii) otherwise restrict the ability of a manufacturer to enforce such disclaimers or limitations; or (iii) grant the customer additional warranty rights, specify the duration of implied warranties which the manufacturer cannot disclaim, or allow limitations on the duration of implied warranties. THE TERMS IN THIS LIMITED WARRANTY, EXCEPT TO THE EXTENT LAWFULLY PERMITTED, DO NOT EXCLUDE, RESTRICT, OR MODIFY, AND ARE IN ADDITION TO, THE MANDATORY STATUTORY RIGHTS APPLICABLE TO THE SALE OF THE PRODUCTS TO CUSTOMERS.

10. No oral statements. In the event that Leucos’s or an Authorized Dealer’s salespeople have made oral statements about the Products, such statements do not constitute warranties, may not be relied on by the Buyer and are not part of the order or any agreement.

11. LIMITATION OF LIABILITY. IT IS UNDERSTOOD AND AGREED THAT TO THE EXTENT ALLOWED BY LOCAL LAW, LEUCOS’S MAXIMUM LIABILITY AND THE BUYER’S SOLE AND EXCLUSIVE REMEDY, WHETHER IN CONTRACT, UNDER ANY WARRANTY, IN TORT (INCLUDING NEGLIGENCE), IN STRICT LIABILITY OR OTHERWISE, SHALL BE STRICTLY LIMITED TO EITHER THE REPAIR OR REPLACEMENT OF THE DEFECTIVE PRODUCT OR PART AT LEUCOS’S EXCLUSIVE OPTION.

12. SEVERABILITY. IF ANY PORTION OF THIS LIMITED WARRANTY IS HELD ILLEGAL OR UNENFORCEABLE BY REASON OF LAW, SUCH PARTIAL ILLEGALITY OR UNENFORCEABILITY SHALL NOT AFFECT THE ENFORCEABILITY OF THE REMAINDER OF THIS LIMITED WARRANTY WHICH THE BUYER ACKNOWLEDGES SHALL BE CONSTRUED TO BE LIMITED BY ITS TERMS OR AS LIMITED AS THE LAW PERMITS.

13. Choice of Law and Jurisdiction. This Limited Warranty is to be construed under the laws of the State of New Jersey, excluding any body of law governing conflicts of law. The United Nations Convention on Contracts for the International Sale of Goods is hereby excluded in its entirety from application to this Limited Warranty. Any disagreement or dispute arising out of or relating to this Limited Warranty shall be settled by final and binding arbitration to be conducted in New York, New York, by a single arbitrator in accordance with the Commercial Rules of the American Arbitration Association. No dispute between the parties, or involving any person but the Buyer, may be joined or combined together, without the prior written consent of Leucos.

14. How to Make a Claim. Return Policy and Procedures. To make a claim under this Limited Warranty, the Buyer must contact Leucos within seven (7) days after the damage or defect is discovered or reasonably should have been discovered. The Buyer must provide (i) a detailed explanation of the damage or defect, and (ii) a copy of the purchaser’s proof of purchase. In the event Leucos determines, in its sole discretion, that the damage and/or defect described warrants a return of the product pursuant to this Limited Warranty, Leucos will provide the Buyer with a Return Authorization Number (“RAN”) and will send the Buyer a claim form. The Buyer must fill out the claim form and return it, along with the defective Product in its original packaging, or another shipping container approved by Leucos, as well as the Buyer’s original sales receipt or other proof of purchase. The Buyer must print the RAN on the outside of the return package. All RANs will expire thirty (30) days after they are issued. Products shipped to Leucos (i) without a valid RAN or with an RAN that has expired; (ii) without an RAN number clearly marked on the outside of the shipping box; or (iii) at the wrong location, will be rejected and returned to the Buyer at the Buyer’s sole cost and expense. The Buyer will bear the entire cost associated with the return, including shipping, handling and insurance costs. Such costs will only be refunded by Leucos in the event the return is accepted and the Product is deemed damaged or defective in accordance this Limited Warranty. All warranty claims must be made in writing and sent to the following address, via certified mail, return receipt requested:

Leucos USA Inc – 11 Mayfield – Edison NJ 08837