General Terms of Delivery and Business of Pales IT-Systemhaus GmbH

valid from 01.01.2005

1. Validity of Provisions

1.1 These provisions are exclusively intended for application to business persons if the relevant contractual relationships refer to the operation of their trade, as well as for application to legal entities under public law or legal special assets under public law – hereinafter referred to as "Client" or "Clients").

1.2 All legal relationships between the Client and Pales IT-Systemhaus GmbH shall be governed by these provisions and any written agreements which may otherwise have been concluded. At the latest on receipt of goods or services shall these provisions be deemed to have been accepted. Contradictory provisions of our Clients or Clients' provisions which deviate from these provisions shall have no effect. Contradictory confirmations from Clients drawing attention to their own Business or Purchasing Conditions are hereby rejected.

1.3 These provisions shall also apply to all future business relationships, even if they have not again been expressly agreed.


2. Quotation and Conclusion of Contract

2.1 Quotations submitted by Pales IT-Systemhaus GmbH shall be subject to alteration and not binding. Orders and the commissioning of work by the Client shall be legally binding only after written confirmation of such by Pales IT-Systemhaus GmbH, and the content of that confirmation shall from the sole criteria for the business relationship and the scope of delivery. Alterations and supplements to confirmed orders and collateral agreements must be confirmed in writing by Pales IT-Systemhaus GmbH. The same shall apply for verbal declarations, assurances or other statements made by organs, employees, representatives or other agents.

2.2 Catalogue data, drawings, illustrations, dimensions, weights or other performance details shall only be binding if they are expressly agreed in writing.

2.3 The written-form requirement can also be observed by the transmission of a fax or e-mail. All risks, including any deficits in deliveries or evidence which may result from the use of these latter means of transmission shall be the responsibility of that contracting party which expressly wishes to communicate using those forms of transmission or first uses those forms of transmission as part of correspondence.


3. Delivery and Performance Deadlines

3.1 If a delivery or performance deadline has been agreed, the period for such shall begin with receipt of the Pales IT-Systemhaus GmbH order confirmation by the Client, but not before all documentation, declarations, data, approvals and other information to be provided by the Client is in the possession of Pales IT-Systemhaus GmbH or other Client obligations have been met.

3.2 If Pales IT-Systemhaus GmbH is prevented by force majeure or on account of events which are beyond its sphere of influence from complying with a delivery or performance deadline, then Pales IT-Systemhaus GmbH shall not be responsible for such. Apart from this, the deadline shall be extended in such cases by an appropriate period, but at least by the period of duration of such hindrances. Such hindrances shall be deemed to include strikes, lockouts, official ordinances, insufficient deliveries from manufacturers or suppliers, as well as insufficient material and energy supplies. The same principle shall also apply if such hindrances arise for suppliers of Pales IT-Systemhaus GmbH or their sub-suppliers. Pales IT-Systemhaus GmbH shall in such cases be entitled to withdraw from the contract in full or in part for that still unfulfilled part of the contract, or in the case of service contracts to cancel such.

3.3 If Pales IT-Systemhaus GmbH is responsible for non-compliance with a delivery or performance deadline, then the Client shall, following the setting of an appropriate further extended deadline, to withdraw from the contract or in the case of service contracts to cancel such. Rights and claims which go beyond this, in particular such for compensation for damages on account of non-fulfilment, delayed delivery or performance or reimbursement of consequent damages, shall be excluded, insofar as Pales IT-Systemhaus GmbH, or one of the company's legal representatives or agents has not caused the exceeding of the deadline with intent or through gross negligence.

3.4 Should a delivery or the performance of services be delayed by circumstances for which the Client is responsible, the Client shall bear any consequent costs which may be incurred by Pales IT-Systemhaus GmbH.

3.5 Pales IT-Systemhaus GmbH shall be entitled to make partial deliveries and provide partial performance.

3.6 If the Client cancels a delivery or service order without the approval of Pales IT-Systemhaus GmbH, then Pales IT-Systemhaus GmbH shall be entitled to claim fifteen percent of the net order value from the Client as compensation without having to produce documentary evidence, notwithstanding further claims to which it may be entitled.


4. Prices and Conditions of Payment

4.1 All prices are net and statutory value added tax must be applied. Pales IT-Systemhaus GmbH will be bound by the prices specified in quotations for thirty days from the date of the respective quotations. However, only those prices specified in the order confirmation issued by Pales IT-Systemhaus GmbH shall be contractually valid. Additional deliveries and services will be invoiced on the basis of prices applying at the time of the additional delivery or the provision of the additional service and at the prevailing Pales IT-Systemhaus GmbH conditions.

4.2 Net prices for the delivery of goods include normal packaging but not carriage costs.

4.3 If services are agreed beyond the scope of the quotation for hardware products, such as assembly, system integration or services associated with hardware and software, such as hardware or software maintenance, they will be separately invoiced in accordance with the Pales IT-Systemhaus GmbH service conditions prevailing at the time of the provision of the service unless an express agreement to the contrary has been made. Unless otherwise agreed, costs for call-out and expenses will be invoiced in the amount of the costs actually incurred against provision of appropriate documentation.

4.4 Even in the case of complaints or counterclaims, the Client shall only be entitled to set off or retain monies or make deductions if the counterclaims have acquired legal force or are undisputed. However, the purchaser shall also be entitled to retain monies arising from counterclaims deriving from the same contractual relationship.


5. Delivery and Transfer of Risk

5.1 If no special agreements have been concluded on the type of carriage, goods will be forwarded by a means which appears to Pales IT-Systemhaus GmbH to be reasonably priced. The risk shall be transferred to the Client as soon as the consignment has been handed over to the transport agent or for the purpose of dispatch as soon as the goods have left the warehouse of Pales IT-Systemhaus GmbH, whichever event takes place at an earlier point in time. If dispatch should become impossible through no cause of Pales IT-Systemhaus GmbH, the transfer of risk to the Client shall become effective upon notification of readiness for dispatch.

5.2 Selected and carefully refurbished electronic components which are customarily not subject to wear and tear may only be used by Pales IT-Systemhaus GmbH if their performance corresponds to that of new components.


6. Cooperation of the Client

6.1 The Client is responsible for the selection of hardware and software, including for the performance results desired as a consequence of their use.

6.2 By the agreed delivery or service-performance dates, the Client shall provide for the spatial, technical and other setting-up and connection prerequisites which enable Pales IT-Systemhaus GmbH to fulfil the written order. Among the setting-up and connection prerequisites to be provided for by the Client are a functioning data backup before Pales IT-Systemhaus GmbH begins with the execution of the order and after each process involving a change in the data bank during the course of order fulfilment by Pales IT-Systemhaus GmbH, any preparation of configurations already in existence which are necessary for the execution of the agreed work and the provision of an operational state appropriate to the execution of the agreed work, preventive measures for the avoidance of system crashes or measures for the avoidance of consequences deriving from such and so on. However, without express regulation of such, Pales IT-Systemhaus GmbH shall not be obliged to link order products to devices and/or programs of the Client and to establish their functional capability. Should Pales IT-Systemhaus GmbH nevertheless be called upon to perform such services, they shall be deemed to be additional services. If the installation and/or the establishment of operational readiness are owed on account of an express written agreement, then such shall be deemed to be a modification of the delivery in terms of purchase law.


7. Warranty

7.1 In the case of defects, which shall also be deemed to include the lack of assured properties, Pales IT-Systemhaus GmbH shall at its own discretion and within the framework of the warranty period of six months, such period beginning with transfer of risk, provide replacement or remedy. Multiple remedies or multiple subsequent deliveries shall be permissible. Replaced components shall pass into the ownership of Pales IT-Systemhaus GmbH without compensation. Following a reasonable period of time, the Client shall be entitled in the case of failure of remedies or replacement deliveries or new manufacture, at his own discretion to withdraw from the contract or demand a reduction in the purchase price. Apart from this, Item 8 shall apply.

7.2 Should operational or maintenance instructions not be observed by the Client, or changes made to the products, parts replaced, consumer materials used which do not comply with original specifications, additional devices be installed which are not approved by Pales IT-Systemhaus GmbH or repairs be carried out by persons not authorized by Pales IT-Systemhaus GmbH, all warranties shall lapse unless the Client proves that the notified defect could not be attributed to such forbidden actions or omissions.

7.3 A warranty in respect of normal wear and tear is excluded. The same shall apply to accessories.

7.4 Warranty claims can only be made by the direct contractual partner and cannot be assigned to a third party.

7.5 The above clauses contain all warranties for products and exclude warranty claims of any kind whatsoever. This shall not apply in the case of claims for compensation for damages deriving from assurances of properties, for which the purchaser should take our insurance cover against the risk of consequential damages arising from defects.

7.6 The sale of used products shall be subject to the exclusion of warranties of any kind.


8. Liability, Impossibility, Incapacity

8.1 Claims for compensation for damages deriving from positive contractual infringement, from culpability on contract conclusion and from unlawful acts against both Pales IT-Systemhaus GmbH and its organs and agents or executing agents are excluded, insofar as such are not the consequence of intent or grossly negligent actions. This shall also apply to claims for compensation for damages deriving from non-fulfilment, though only to the extent that compensation for direct or indirect consequential damages deriving from defects is demanded, unless liability is based on an assurance for which the purchaser should insure against the risk of such damages. Any liability is restricted to damage which was foreseeable at the time of conclusion of the contract. In any case, a liability on the part of Pales IT-Systemhaus GmbH pursuant to product liability law and other claims deriving from manufacturer's liability shall remain unaffected.

8.2 If the owed delivery or service becomes impossible for Pales IT-Systemhaus GmbH for reasons for which it is responsible, without any incidence of intent or gross negligence, the Client shall be entitled to withdraw from the contract. Rights which go beyond that shall be excluded.


9. Reservation of Proprietary Rights and Anticipatory Assignment

9.1 Up until the satisfaction of all claims, including all balance claims from the current account which are accruable to Pales IT-Systemhaus GmbH for any legal reason now and in the future, Pales IT-Systemhaus GmbH shall be granted the following securities, which Pales IT-Systemhaus GmbH shall release at its own discretion insofar as their value exceeds the claims sustainably by more than twenty percent.

9.2 Goods shall remain the property of Pales IT-Systemhaus GmbH pursuant to the above prerequisites. The Client shall be entitled to dispose of the privileged goods in an orderly business transaction subject to reservation of proprietary rights as long as he is not in default. Pledging or collateral assignments are not permissible. By way of security, the Client already hereby assigns to Pales IT-Systemhaus GmbH all claims arising from the further sale of the privileged goods or arising for some other legal reason, such as insurance, unlawful acts in respect of claims deriving from the privileged goods, including all balance claims from the current account, in their full amount. The Client shall be authorized and obligated to collect the assigned claim. In the case of payment default on the part of the Client, Pales IT-Systemhaus GmbH shall be entitled to withdraw the automatic draft order at any time and disclose the assignment to the Client's buyers and to repossess the privileged goods or, if necessary, demand the assignment of the repossession rights of the Client against third parties.

9.3 In the case of action by third parties regarding the privileged goods, and especially in the case of seizure under execution, the Client shall draw attention to the ownership of the goods by Pales IT-Systemhaus GmbH and notify Pales IT-Systemhaus GmbH without delay, so that it can assert its ownership rights. Insofar as the third party is not in a position to reimburse the costs to the seller incurred in this connection by legal or out-of-court action, the Client shall be liable for such.

9.4 In the case of breach of contract on the part of the Client – especially in the case of payment default - Pales IT-Systemhaus GmbH shall be entitled to repossess the privileged goods or, if necessary, to demand the assignment of the repossession rights of the Client vis-à-vis the third party. Any repossession or seizure by execution of the privileged goods by Pales IT-Systemhaus GmbH shall not be deemed as withdrawal from the contract.

9.5 The Client undertakes to obtain any data which are necessary for the collection of the claims and to hand over any associated documentation which is necessary.


10. Changes in Design and Specification

10.1 Pales IT-Systemhaus GmbH shall be entitled to make design and/or specification changes to the products insofar as their overall performance is not impaired by such. However, Pales IT-Systemhaus GmbH shall not be obliged to make such changes to products which have already been delivered.


11. Hardware and Software Maintenance

11.1 Insofar as it is agreed or made use of on the request of the Client in some other way, Pales IT-Systemhaus GmbH shall carry out hardware and software services exclusively pursuant to the regulations contained in §§ 611 ff. of the German Civil Code.


12. Export Provisions

12.1 In the case of sales of products supplied by Pales IT-Systemhaus GmbH as part of export transactions, the Client shall comply with the respectively applicable import and export regulations, especially with those regulations applying in Germany and in the USA. The Client shall also obligate his buyers to comply with the regulations specified above.

12.2 The Client shall provide Pales IT-Systemhaus GmbH with all information and declarations which Pales IT-Systemhaus GmbH requires to meet its obligations deriving from German and US-American import and export regulations.


13. Redeeming Clause

13.1 Should one or more of these provisions or a condition contained in another relevant written agreement be or become invalid, the remaining contractual provisions or conditions shall be unaffected. In such a case, the contracting parties undertake to replace the invalid provision by a valid provision which comes closest to fulfilling the commercial purpose of the invalid provision.


14. Place of Fulfilment, Legal Venue and Applicable Law

14.1 Place of fulfilment for deliveries, performance and payment is the registered office of Pales IT-Systemhaus GmbH for implementation of fulfilment transactions.

14.2 The legal venue for all disputes, including suits involving documentary evidence, is the registered office of Pales IT-Systemhaus GmbH at the time of the institution of legal proceedings. Pales IT-Systemhaus GmbH shall also be entitled to assert claims at the general legal venue of the Client or at a special legal venue.

14.3 Material German law shall apply. UN purchasing law shall be excluded.