General Terms & Conditions
General Terms and Conditions of Sale and Delivery
1. General – Scope
a) Our terms and conditions of sale and delivery are exclusive. If written purchase or delivery contracts are concluded, these terms and conditions of sale and delivery shall apply additionally as a material part of such contracts. No terms and conditions of a customer's order conflicting with or at variance with our general terms and conditions of sale and delivery shall be binding upon us, unless expressly agreed to by us in writing. Our terms and conditions of sale and delivery shall prevail also if being aware of a customer's conflicting or varying conditions, we proceed to carry out a delivery to the customer without express reservation of our own terms and conditions.
b) Our terms and conditions of sale and delivery shall also apply to all future transactions with the customer in regard of deliveries of goods, and shall apply accordingly also in regard of the performance of services.
2. Orders – Offer documentation
a) All orders received by us are deemed not to be an order to fulfil a contract but an offer to conclude a contract. To be legally effective, the acceptance of an order is subject to a written "confirmation of order". We reserve the right to reject offers without stating a reason.
b) Our offers are subject to confirmation. The contract shall be deemed concluded only upon dispatch by us of a written order confirmation. Any information contained in catalogues, brochures, etc. and any other written or oral statements are only relevant if an express reference to them is made in the order confirmation.
c) We reserve all rights of ownership and copyrights in illustrations, drawings, calculations, and/or other documentation. This provision shall also apply to any such written documents that are marked "confidential". Prior to their release to third parties the customer must obtain our express written approval. In the event that the conclusion of a contract does not materialize all materials received shall be immediately returned to us.
3. Prices – Terms of payment
a) Our prices are “Ex Works” and as per the current pricelist at the time of the order. We reserve the right to adjust our prices accordingly, if we should experience an increase in our original cost until the time of delivery as a result of, including without limitation, the conclusion of collective agreements or increases in prices of materials.
b) Our prices are exclusive of costs of packaging, loading, dismantling, return and disposal of waste electrical and electronic equipment. The legal value-added tax is not included in our prices but is indicated separately in the invoice in the statutory amount.
c) Cash discounts, sales return and/or other allowance are subject to a specific written agreement.
d) The purchase price is payable net (without deduction) within 14 days from the date of invoice. In case of the customer's delay in payment we shall be entitled to charge default interest regardless of the fault of the customer at 8.5% above the statutory interest rate defined in § 1000 ABGB/Austrian Civil Code, unless we can show higher damages caused by such default. The relevant date for the determination of the due date of the payment shall be the date when the payment arrives on our business bank account. In the event of default in payment of the customer and without prejudice to any of our other rights, we shall be entitled to suspend the performance of our own obligations until the payment or any other service is effected and claim a reasonable extension of the delivery time. At any event we shall be entitled to charge pre-trial costs including without limitation dunning costs and lawyer's fees.
e) The customer is entitled to set off claims against our invoices only if such claims have been determined by final judgement, are undisputed or have been recognised by us in writing.
f) All invoices will be issued from us directly to the customer. We shall not accept any third party payments made on behalf of the customer without prior written acceptance from us. In the event the customer wishes to execute any payments through a third party, the customer shall declare, no less than fourteen (14) days in advance, in writing, the reason for which a payment by a third party shall take place and the relationship between the customer and this third party. We reserve in any case the right not to accept such a third party payment and we shall have in any case the right within a certain period of time, as determined in our sole discretion, to investigate whether we will accept such third party payments or not.
4. Delivery Obligations
a) Our obligation to deliver is subject to clarification of all technical issues and due fulfilment of all obligations of the customer. Our stated delivery times are non-binding. A customer may terminate a contract for delay in delivery only after granting a reasonable grace period in writing. We are entitled to extend agreed delivery times by a reasonable period of time if operational disruptions of any kind whatsoever occur or our suppliers delay delivery. If any unforeseeable circumstances or circumstances that are beyond our influence such as all events of force majeure occur impacting compliance with the delivery time, the delivery time shall be extended accordingly.
b) The customer is obligated to notify us - without delay - in writing and at the latest prior to the delivery of the subject of purchase on any personal or material obstacles hindering the shipment or the use of the subject of purchase at the place of destination. The customer shall guarantee that the import or the use of the subject of purchase will be effected only in compliance with all legal provisions in force at the place of destination (including without limitation gaming laws, licensing regulations) and the requirements established by the relevant authorities. Permits required for the transportation and the operation of the subject of purchase must be obtained from the relevant authorities by the customer. In addition, the customer must without delay submit all necessary applications in connection with the export of the subject of purchase from the customs territory of the European Union, obtain all necessary permits from the relevant authorities and forward to us without request all necessary documentation including without limitation relevant export documents (EX1 export declaration, proof of export for turnover tax purposes). In the event of any misuse or unlawful use of the delivered goods we shall be entitled – even after receipt of payment of the full purchase price – to file injunctions, claim damages as well as to immediately terminate all other contracts concluded with the customer.
c) The customer expressly waives the right to claim damages for a delay in delivery. In the event that the export documents are not forwarded on a timely basis within 3 months from the passing of risks (see Section 5 below), we shall be expressly entitled to charge the turnover tax subsequently and to claim default interest in accordance with Section 3d. Also, for sales and / or deliveries to non-EU countries we shall be entitled to charge an advance turnover tax deposit on the invoice for the subject of purchase until all required export documents have been received by us.
5. Transport – Passing of risk
a) Delivery is "Ex Works". The risk in the goods to be delivered shall pass when the goods pass to the carrier for loading.
b) Shipping and all other transfer costs including without limitation transport insurance, customs duties, import turnover tax shall be borne exclusively by the customer, who shall also be responsible for applying for the required import licenses.
6. Warranty – Liability
a) The customer's warranty rights and other claims are subject to the customer's having duly fulfilled the inspection and notification obligations under §§ 377 UGB / Company Code. Notifications of defect must be in writing to be legally effective and it must be proved that they have reached us no later than fourteen working days after receipt of delivery of the subject of purchase, else any claims shall be lost. If a notification of a defect is failed to be made or is not made on a timely basis, the good shall be deemed as accepted. No warranty or damages including any consequential damage can be claimed in such cases and the right of rescission of contract on account of a mistake shall be precluded.
b) With regard to used subjects of purchase the customer agrees to waive any and all claims for warranty and other claims.
c) It is within our discretion whether we repair a defect (correction) at our facilities or deliver a replacement. All transport, delivery or labour costs incurred under a correction of a defect or the delivery of a replacement shall be for the customer's account. The costs of spare parts or material will be borne by us. Replaced parts shall become our property. Defects under warranty entitle the customer to terminate and rescind the contract only if the customer proves that a material defect existed at time of delivery, the correction of which is objectively impossible or if we have not corrected such defect despite a reasonable grace period that was granted in writing. Further, any claims shall be excluded if the customer uses the subject of purchase improperly, fails to actively co-operate in the determination of the defect or hinders us in the correction of the defect by such behaviour as for example denial of access to the subject of purchase. In addition, warranty shall not include the replacement of parts that are subject to normal wear or to any damage caused by actions of third parties, excess voltage, inadequate installation, or overuse of components. Warranty claims and any liability shall expire immediately if any repair work, modifications of any kind whatsoever or manipulations are performed on the delivered subject of purchase without our written consent.
d) With the exception of personal injury, we shall be liable for damage only if proof is brought forward that a damage was caused by us intentionally or by gross negligence. We do not assume any liability whatsoever, including through recourse, for damage or consequential damage such as claims made by players or indirect damage and/or lost profit or any gaming advantages obtained by any person for herself / himself or any third parties, regardless of whether this has been with or without the use of any technical aids, or any other manipulations of the game play or the game outcome or any other claims of third parties against the customer. In any instance, the amount of a justified claim for damages is limited to the amount of the purchase price of the goods to which the damage can be related.
e) The Customer shall be obligated to observe and immediately follow the update information published regularly on AGI's Technical Support web page (http://www.novomatic.com/de/produkte/technical_support/technical_bulletins)
for the distributed products. Should the customer neglect to comply with this obligation, this shall result in the cancellation of all obligations of warranty and obligations to pay damages of AGI to the customer.
f) The warranty period shall be 6 months calculated from the passing of risk in accordance with section 5.a). This period shall also be the limitation period for claims for damages.
7. Retention of ownership – Assignment of claims – Right of retention
a) We retain full ownership of the goods delivered until full payment of the purchase price including supplementary fees and any other claims we may have against the customer. Any resale of the subject of purchase before payment of all our claims shall be permissible only if our ownership right is safeguarded.
b) In the event that the customer resells the subject of purchase, the customer agrees to assign to us already at this time all claims against the buyer resulting from this resale.
c) In the event of a delay in payment we shall be entitled to take back the subject of purchase at the customer's cost and, under regard of the interests of the customer, to freely dispose of it – setting off the proceeds from such disposition against the liabilities of the customer – as well as to withhold delivery of ordered goods until full payment of debts.
d) Assigning or pledging any claims the customer may have against us shall not be permitted and shall have no effect vis-à-vis us.
8. Intellectual property rights
a) The customer is obligated to safeguard our intellectual property rights or any intellectual property rights licenced to us, including without limitation copyrights, trademark, design or patent rights and, in the event of an infringement of such rights, to indemnify us for any damage incurred thereby. In the event of an infringement by third parties, the customer is obligated to notify us immediately in writing and, upon our request, to join us in the action as intervener at the customer's cost.
b) The customer is not permitted to make any intervention in the software supplied by us together with the subject of purchase or to make copies without our prior express written approval or to utilise or reproduce programs separately.
9. Arbitration – Applicable law
a) If the customer's registered office is located outside Austria, all disputes arising from a contract with us or those relating to the infringement, termination or nullity of contracts shall be finally settled under the Rules of Arbitration and Conciliation of the International Arbitral Centre of the Austrian Economic Chamber in Vienna (Vienna Rules) by three arbitrators appointed in accordance with these rules. The language to be used in arbitral proceedings shall be German.
b) If the customer's registered office is located within Austria, all disputes defined in paragraph a) above shall be finally settled by the Permanent Arbitral Centre of the Economic Chamber in Vienna according to its Rules of Arbitration as amended from time to time.
c) Our legal relationship with the customer is governed exclusively by Austrian law. The UN Convention on Sale of Goods shall not be applicable.
10. Effective date
These general terms and conditions of business have entered into effect as of 1 March 2011 and substitute our general terms and conditions of business that were in effect until that day.