GENERAL TERMS AND CONDITIONS FOR SALE AND DELIVERY

Valid as of 1 January, 2016, ORION Lighting Factory GmbH, Vienna, Austria

1 General

1.1 These general conditions apply to all contracts of sale and delivery of goods and provision of services by ORION Leuchtenfabrik Molecz & Sohn GmbH, A-1232 Wien (hereinafter referred to as "ORION") and its customers (hereinafter referred to as "Customer").

1.2 Exceptions from these conditions are valid only if acknowledged in writing by Orion. Conditions of purchase or other conditions presented by the Customer are expressly excluded.

2 Quotations

2.1 Quotations by ORION are non-binding. Especially the interim sale of offered Goods to third-parties is reserved.

2.2 All quotation and project documents and samples may not be reproduced nor made accessible to third parties without the explicit consent by ORION. Their return can be requested at any time and must be delivered back to ORION by the Customer without undue delay, if the order is placed elsewhere. All intellectual property rights remain reserved in accordance with Section 11.

3 Conclusion of contract

3.1 The contract will come to force based on these terms when after receiving the order, ORION has either sent a written confirmation of the order or delivered Goods to the Customer. However, confirmation from ORION regarding receipt of an order does not constitute conclusion of contract.

3.2 Terms set by the Customer such as delivery requests, deadlines, discounts, etc. are considered extraneous proposals by the Customer. They only become part of the contract if accepted as binding in the order confirmation by ORION. Any references made in catalogues, brochures ed.al. as well as other oral or written statements are only applicable if explicitly stated in the order confirmation.

3.3 After conclusion of contract, changes to the order are only possible with written approval by ORION and under reservations of indemnity.

4 Prices

4.1 Prices are valid Free Carrier (FCA Incoterms 2010) from ORION’s factory respect. warehouse; excluding value added tax (VAT), packaging, handling, dismantling and costs pertaining to the EU Directive on waste electrical and electronic equipment (WEEE). All fees, taxes and other duties levied on the delivery are payable by the Customer. If direct delivery is stipulated, this is charged separately together with transport insurance in case customer desires such. It does not include unloading and stowing. Packaging is only redeemed in case of explicit agreement.

4.2 For all orders differing from the standard range ORION reserves its right to changes in pricing.

4.3 Prices quoted are based on costs at the time of initial quotation. Should costs increase until time of delivery, ORION is entitled to adjust the prices accordingly.

4.4 For repair services, ORION carries out all services deemed expedient and settles them based on incurred expenditure. This also applies to expedient service and additional services detected while handling the order and does not require specific information of the Customer.

4.5 The expenses incurred for issuing repair quotations or for expertise are billed to the customer separately.

5 Delivery

5.1 The delivery period starts at the latest of the following points in time:
(I) date of order confirmation;
(II) date of fulfillment of all the technical, commercial and other requirements owed by the Customer;
(III) date upon which ORION receives payment or deposit prerequisite before delivery of Goods.

5.2 Approvals from authorities and any approvals required from third parties for export of equipment shall be obtained by the Customer. If such approvals are not obtained in due time, the delivery period is extended accordingly.

5.3 ORION is entitled to carry out and invoice partial or early deliveries. If call-off delivery is agreed upon, the Goods are considered called-off one year after date of order at the latest.

5.4 If circumstances which are unforeseeable or independent of the will of ORION, such as any instance of force majeure, hinder compliance with a stipulated delivery period (including main subcontractors of ORION which are difficult to replace), the delivery period shall be extended by the time length of these circumstances. In particular, this extends to armed conflicts, official interventions and bans, delays in transport and clearance of customs, transport damages, shortages of energy and raw materials, work conflicts, labor disputes and loss of a main subcontractor by Orion.

5.5 Without a diverging written agreement, a named time-line for delivery is purely an indicator for the Customer and not binding.

6 Transfer of risk

6.1 If not explicitly agreed upon otherwise, delivery of Goods is sold as EXW per INCOTERMS® 2010.

6.2 In case of missing Goods or damages during transport any claims towards the carrier must be placed by the Customer; who is advised to carry out an immediate ascertainment of facts.

6.3 Place of performance for services is wherever the service is provided; in case of doubt, ORION’s premises. The risk for service or partial service is transferred to the Customer upon performing service.

7 Payment

7.1 If no payment terms are agreed, the net price is due before delivery.

7.2 Payments must be made in the stipulated currency (generally EUR) without any deduction and in advance to ORION’s point of payment. Possible acceptance of checks or bills of exchange is only in lieu of payment. All interest costs and expenses (i.e. discount and collection expenses) are charged to the Customer.

7.3 A payment is considered made on the day on which ORION can dispose of it.

7.4 The Customer is not entitled to retain or offset payments because of warranty claims or other counter-claims.

7.5 If the Customer has exceeded the due date for stipulated payment or other services resulting from this or other contracts, ORION can, without prejudice to other rights
a) Suspend fulfilling its own obligations until payment or other service and make use of an adequate extension of the delivery time-line.
b) Declare due all pending bills receivable from this or other contracts and charge default interest of 1.00% per month plus VAT for these amounts from the respec. due date onwards; unless ORION provides evidence for exceeding costs. In any event, ORION is entitled to bill pre-trial costs, dunning fees, operating costs of collection agencies and attorney fees.

7.6 Expanded extension of title is applicable. ORION reserves all rights to ownership on all delivered Goods until complete payment of all bills including contingent interest and costs. And is entitled at own discretion to declare this extension of title until complete payment and if possible to register it with all relevant agencies in Austria and abroad.
The Customer relinquishes his claims to resale of Goods (even if these were processed, transformed or compounded) under extension of title to ORION for securing its purchase price claim. And is obliged to make an according reference in his accounts or invoices. On request, the Customer must announce the relinquished claim including its debtor to ORION along with all necessary information and documentation for the debt collection as well as informing the third-party debtor of the relinquished claim. In case of seizure or any other claim to the Goods under extension of title, the Customer is obliged to point out ORION’s property rights and inform it without due delay.

7.7 Granted discounts or bonuses hinge on complete payment in due time.

8 Claims and warranty

8.1 Claims of incorrect deliveries or those regarding evident deficiencies must be made within 8 days of receipt of Goods. Apart from that, the warranty period for new Goods is a maximum of 24 months after delivery. It begins at the time of transfer of use and risk.

8.2 ORION exclusively warrants that delivered Goods are free of manufacturing and/or material defects. Illuminants and electronic wear parts as well as used goods are excluded from any warranty. Warranted properties are only those explicitly described as such in the product information. A warranty is valid at most until the warranty period has lapsed. Technical or structural modifications to the product intended for improvement or in compliance with changes to legal regulations can be made by ORION without any further publications.

8.3 If Goods are manufactured by ORION based on design particulars, drawings, models or other specifications from the Customer, then ORION’s warranty is limited to careful execution.

8.4 If evidence is provided by the Customer of a manufacturing and/or material defect, ORION can at its own discretion either provide a free replacement or remedy the defect.

8.5 All incidental expenses arising in the context of remedying defects (e.g. installation and removal, transport, disposal, cost of travel and travel time, lifting equipment, scaffolding) are at the expense of the Customer.

8.6 Invoices for repairs made by the Customer or third parties shall only be recognized as claims if ORION was previously informed of these costs in writing and ORION confirmed acceptance of these costs in writing. In addition, the warranty immediately lapses if the Customer or a third party makes changes or repairs to the Goods without ORION’s written consent.

8.7 Excluded from warranty are all those defects caused by arrangement and assembly not carried out as mandated by ORION, insufficient equipment, non-compliance with installation requirements or guidelines of use, over-use of parts beyond capacity given by ORION, negligent or wrong handling and use of inadequate operational materials. This also applies to deficiencies that can be traced to material provided by the Customer. ORION also is not liable for damages caused by actions of third-parties, atmospheric discharges, overvoltage or chemical influences. Warranty also does not extend to parts subject to natural wear. ORION takes on no warranty for used Goods.

8.8 Warranty immediately expires if the Customer – or a third party – carries out alterations or repairs - without ORION’s consent in writing.

9 Withdrawal from contract

9.1 Requirement for the Customer to withdraw from the contract is a delay in delivery that can be attributed to ORION’s gross negligence and extends beyond the lapse of a reasonable grace period of at least 60 days declared in writing by the Customer. Withdrawal on behalf of the Customer can only be declared effectively through a registered letter sent to ORION.

9.2 Independent from his other rights, ORION is entitled to withdraw from the contract
a) if delivery and/or begin or continuation of service is rendered impossible or delayed further (despite setting a reasonable grace period) for reasons the Customer is responsible for;
b) if justified concerns have arisen as to the Customer's solvency and/or the Customer does not provide advance payment or any other security before delivery despite ORION’s request; or
c) c) if the extension of the delivery period due to circumstances named under 5.4 amounts to more than half of the initially agreed upon delivery time-line, or at least 6 months
d) d) if the Customer does not or not sufficiently meet his obligations listed under 13

9.3 Withdrawal from contract due to the above-named reasons can be declared with respect to not yet completed parts of delivery or service.

9.4 Without prejudice to ORION’s claims for damages including pre-trial costs – already provided services or partial services shall be invoiced and paid as per agreement in the event of withdrawal. This also applies as far as delivery or service has not yet been accepted by the Customer and to preparatory acts. ORION is also entitled to demand return of previously delivered items as credit towards its damages.

10 Liability

10.1 Subject to mandatory provisions of law, ORION is only liable for damages from its Goods and services under this agreement if evidence is provided of intent or gross negligence. Liability for slight negligence, the compensation of resulting damages and financial losses, indirect or consequential damages, unrealized savings, interest losses and for damages from third-party claims against the client are excluded to the extent permitted by law.

10.2 In the event of non-compliance with any conditions for installation, operational set-up and use (e.g. as included in operating instructions) or violation of regulatory or official conditions of approval, any compensation for damages is excluded to the extent permitted by law.

10.3 Regulations of 10. conclusively apply for all claims of the Customer towards ORION, regardless of legal ground and title and take effect also for all of ORION’s employees, sub-contractors and -suppliers.

11 Intellectual property rights

13.1 If goods are manufactured by ORION based on design particulars, drawings, models or other specifications from the Customer, the Customer shall indemnify ORION in the event of any violation of property rights and upon request from ORION, shall join the corresponding proceedings as party or intervening party at the expense of the Customer and conduct the lawsuit to ORION’s benefit.

11.2 Quotations and project documents as well as execution documents such as plans, blue-prints, and other technical documents as well as samples, catalogues, brochures, illustrations, etc. always remain ORION’s intellectual property and are subject to applicable legal requirements as regards copying, reproduction, competition, etc. ORION can request return of these documents any time, and they must be returned immediately without explicit request if an order is placed with another party.

12 Return of Goods

12.1 Return deliveries are only processed after agreement in writing with the relevant sales office, that will issue a return goods slip.

12.2 The stipulated return delivery with the return goods slip must be sent to the central warehouse at Orion Leuchtenfabrik GmbH, Oberlaaer Straße 281-283, A-1232 Wien, Austria. All related costs are at the expense of the Customer.

12.3 Subject to the condition that the Goods are not damaged (see 12.4), in original packaging and the delivery period is no longer than 90 days, a credit note will be issued of the net-price of the goods after deduction of handling charges.

12.4 Unpackaged and or damaged Goods as well as individual components of packaging units cannot be credited. This also applies to goods that are not in ORION’s standard delivery program such as illuminants, specially produced items or specially painted Goods.

13. Export control and compliance

13.1 Customer shall comply with all applicable laws, regulations, and other legal requirements regarding the export, import, sale, distribution, marketing, and service of the Goods and related technology, including without limitation, tax and foreign exchange legislation or regulations and the obligations. In any case the Customer must observe the (re)export provisions of ORION’s resident country, the European Union and the United States of America when passing on Goods and services to third parties.

13.2 As far as necessary for export controls, the Customer must provide ORION with all relevant information – final recipient, final destination and designated use of the Goods and services – upon request without due delay.

14 Online orders

14.1 For Customer orders on ORION’s electronic ordering platform via the internet (hereinafter referred to as “Online Order System”), the following conditions apply additionally:

14.2 Access to the Online Order System is obtained by anyone who proves his/her identity by entering the user name and password (hereinafter referred to as “login credentials”) allocated by ORION. The Customer commits to immediately changing the password after receipt and at regular intervals to protect against unauthorized access. To a reasonable extent, separate login credentials will be assigned by ORION for each person authorized by the Customer. Login credentials assigned by ORION may under no any circumstances be passed on to third-parties at the Customer's end; the Customer is obliged to immediately inform ORION of relevant changes in access rights of authorized persons. The Customer is responsible for the consequences of violating this provision by its self or its institutions, employees, proxies and agents.

14.3 Anyone who signs into the Online Order System with the Customer’s login information is considered by ORION to be authorized to conduct all possible legal transactions on behalf of the Customer, regardless of whether said person actually is the Customer itself or a person with authorized access. The Customer accepts all legal transactions conducted in the ORION’s Online Order System using its login information as binding on its part.

14.4 For orders in the Online Order System, any contract can be concluded by ORION sending an email confirming the order. The Confirmation generated by the Online Order System as order receipt does not constitute conclusion of contract.

14.5 ORION takes no responsibility for the error-free functioning of its Online Order System and expressly excludes liability for damage through use of its Online Order System as well as the internet use associated therewith. Any responsibility and liability for interruption of access such as a lack of, or incomplete, availability of the Online Order System or inaccurate transmission of information and statements when using the Online Order System is excluded. By using the Online Order System, the Customer affirms of being sufficiently informed of internet risks.

14.6 The Customer acknowledges that by using the Online Order System from a foreign country, it can violate foreign law regulations, e.g., by using the encryption process of the Online Order System. ORION disclaims all liability and responsibility in relation thereto.

15. Severability clause

Should any individual provisions in this agreement be invalid, the remaining provisions shall not be affected thereby. The invalid provision shall be replaced by a valid provision that comes as close as possible to the intended purpose.

16 Court of jurisdiction and applicable law

Court of jurisdiction is Vienna, Austria. The contractual relationship is exclusively governed by Austrian law without regard to its conflict of law provisions. The application of the UNCITRAL Convention on Contracts for the International Sale of Goods (CISG) is expressly excluded.

17. Proviso clause

Contractual performance on behalf of ORION is under proviso clause, that it encounters no impediments based on national or international (re-) export-provisions, especially no embargos and/or other sanctions.

Vienna, July 2016