AGB General Terms and Conditions psmtec GmbH
A. General Terms and Conditions for Deliveries and Services (except Rent)
§ 1 General
1. These General Terms and Conditions of Business ("GTC") are solely authoritative for all contracts concluded between us and the business partner, as well as for all ancillary services, advice and information. Excluded from this are rental contracts, in which case the provisions under lit. B shall apply.
Any conflicting or deviating terms and conditions of the business partner which we do not expressly recognise shall not be binding on us, even if we do not expressly object to them. Counter-confirmations of the business partner with reference to his terms and conditions of business and purchase are expressly contradicted. Our terms and conditions of sale and payment shall also apply if we carry out the delivery to the business partner without reservation or otherwise conduct business in the knowledge of terms and conditions of the business partner which conflict with or deviate from our terms and conditions.
2. All agreements made between us and the business partner within the business relationship are set out in writing in the contract itself, these terms and conditions and our order confirmation. These General Terms and Conditions are agreed with the business partner when the first order is placed and shall apply in their respective version to all future orders even if their validity has not been expressly referred to again.
3. These Terms and Conditions apply exclusively to companies within the meaning of § 14 BGB (German Civil Code), legal entities under public law and special funds under public law within the meaning of § 310 BGB ("Business Partner").
§ 2 Offer, subject matter of the contract
1. Unless expressly agreed otherwise in writing, our offers are subject to change and non-binding.
2. Our offers shall only be valid up to the point in time specified in the offer, but for no longer than thirty days from the date of dispatch of the offer to the business partner. Contracts shall be concluded solely by our written order confirmation or by execution of the order.
3. Technical and design deviations from descriptions and information in brochures, offers and written documents, such as in particular dimensions, colours, designs and shapes as well as other deviations, are reserved without the business partner being able to derive any rights therefrom. This shall only apply if the deviations are customary in the trade and the use for the contractual purpose is not restricted.
4. Illustrations, drawings, dimensions and weight specifications as well as other technical data or information merely characterise the subject matter of the contract and do not constitute a warranty of characteristics.
5. Contracts shall be concluded solely by our written order confirmation or by execution of the order.
§ 3 Prices
1. Unless otherwise agreed in writing, all prices are net prices and are ex works excluding freight, packaging, insurance, assembly, other ancillary costs plus value added tax at the statutory rate applicable on the date of delivery; these items shall be shown separately on the invoice.
2. If the cost of labour or materials increases after conclusion of the contract, we shall be entitled to increase our prices accordingly. This shall not apply before the expiry of a period of 4 weeks after conclusion of the contract or if a binding fixed price agreement has been made in writing in an individual case.
3. The prices shall apply to the scope of services and deliveries listed in the order confirmations. Additional or special services shall be charged separately and shall be remunerated appropriately by the business partner.
§ 4 Terms of payment
1. Unless otherwise agreed with us in writing, the net purchase price (without deductions) shall be due for payment immediately upon delivery.
2. Payment shall only be deemed to have been made when we can dispose of the amount. Bills of exchange or cheques shall not be deemed to have been made in lieu of payment; the acceptance of bills of exchange, cheques or securities by us shall be made subject to the reservation of all rights and without guarantee for timely presentation. In the case of cheques, payment shall be deemed to have been made when the cheque has been unconditionally and finally honoured. Payments by bill of exchange require our express prior written consent. All bill charges shall be borne by the business partner. The acceptance of bills of exchange does not imply any deferment of the underlying claim.
3. Notwithstanding any other provisions of the business partner, we shall be entitled to set off his payments first against older debts, then against any costs already incurred, then against interest and finally against the principal claim. We are obliged to inform the business partner of any set-off according to this clause at the time of performance.
4. The business partner is only entitled to offset if the counterclaims have been legally established or are undisputed, unless it is a claim which is synallagmatically linked to the main claim. The business partner is only entitled to exercise a right of retention if his counterclaim is based on the same contractual relationship. In the event of a defect, the business partner shall only be entitled to a right of retention of the purchase price to a reasonable amount, which shall be determined by the type of defect and the impairment of use.
5. If the business partner is in default with his payments, we shall be entitled to withdraw from the contract or to claim damages for non-performance.
6. If the business partner is in default, we shall be entitled to demand interest at the statutory default interest rate. We reserve the right to claim further damage caused by default. With respect to merchants, our claim to the commercial interest on arrears (§ 353 HGB) shall remain unaffected.
7. In case of default we are entitled to record this fact in a credit rating system.
8. psmtec GmbH is entitled to demand partial/advance payments from the business partner for partial services rendered and/or advances.
§ 5 Delivery, transfer of risk
1. Delivery dates or deadlines that have not been expressly agreed in writing as binding are exclusively non-binding information.
2. Our timely performance presupposes that all commercial and technical questions between the business partner and us have been clarified and the business partner has fulfilled all obligations incumbent upon him.
3. Unless otherwise agreed, delivery shall be made at our discretion ex works or ex warehouse for the account of the business partner.
4. The risk, including the risk of seizure, shall pass to the business partner when the goods are handed over to a forwarding agent or carrier, but at the latest when they leave the warehouse. This shall also apply if the transport is carried out by our vicarious agents or if we assume further services, such as in particular shipping costs or delivery. Insofar as acceptance is to take place, the risk shall pass upon acceptance.
5. The transport route and means as well as the type of dispatch shall be determined by us, unless expressly agreed otherwise in writing.
6. If dispatch is delayed or becomes impossible through no fault of our own, in particular as a result of circumstances for which the business partner is responsible, the risk shall pass to the business partner as soon as we have notified him that the goods are ready for dispatch.
7. We are entitled to make partial deliveries and partial performance at any time, and also to make premature deliveries if we have given the business partner prior notice, provided that this is reasonable for the business partner.
8. The statutory provisions on default of acceptance shall remain unaffected.
§ 6 Default and Impossibility
1. should we be in default with our delivery obligation due to slight negligence, the business partner may demand compensation amounting to 0.5% for each week or part thereof of the default, but not more than a total of 5% of the value of that part of the total delivery which, as a result of impossibility or default, cannot be used or cannot be used in time in accordance with the contract. We reserve the right to prove that the damage was not incurred - or not incurred in this amount. The business partner reserves the right to prove higher damages.
2. Notwithstanding the right to withdraw from the contract in the event of defects (see § 12, 13 Warranty), the business partner may only exercise his right of withdrawal in the event of impossibility of performance or delay in performance if we are responsible for a breach of duty.
3. In the event of default, withdrawal from the contract or damages in lieu of performance shall also require that the business partner has previously set us a reasonable deadline of at least 4 weeks in writing and has expressly made it clear that it will withdraw from the contract and/or claim damages if the deadline is not met. After expiry of this period, the business partner shall be obliged to declare, upon our request, whether it will continue to insist on delivery, claim damages or withdraw from the contract. If the business partner does not make such a declaration within a reasonable period set by us, the business partner shall no longer be entitled to refuse delivery and may not assert the aforementioned rights.
4. The setting of a deadline as referred to in subsection (3) shall not be necessary if a fixed date has been agreed between us and the business partner or if we seriously and finally refuse the performance owed under the contract or if there are special circumstances which, after weighing up the interests of both parties, justify immediate withdrawal.
5. The business partner may not withdraw from the contract before the service is due. Furthermore, withdrawal is excluded if a circumstance for which we are not responsible occurs during the business partner's default in acceptance or if there is only an insignificant breach of duty on our part or if the business partner is solely or predominantly responsible for the circumstances that would authorise withdrawal.
6. § 13 of these General Terms and Conditions for Deliveries and Services shall apply to the claim for damages.
§ 7 force majeure
In the event of delays in delivery due to force majeure or due to events for which we are not responsible, which make delivery considerably more difficult or impossible for us (this includes, in particular, unforeseeable material procurement difficulties occurring subsequently, strike, lockout, official orders, transport disruptions, operational disruptions, lack of means of transport, lack of personnel, etc.), even if they occur at our suppliers or sub-suppliers, the agreed period shall be extended by the duration of the hindrance plus a reasonable start-up time. The same applies if we are not supplied or not supplied on time by our supplier for which we are not responsible. If the impediment to performance continues for more than three months, both contracting parties shall be entitled to withdraw from the contract in whole or in part and to demand repayment of any advance payments made, to the exclusion of any further rights. In the case of partial deliveries, the business partner may only withdraw from the entire contract if the partial fulfilment of the contract is of no interest to him.
§ 8 Retention of title
1. We retain title to the goods delivered by us until full settlement by the business partner of all existing and future claims arising from the current business relationship, including all ancillary claims. In the event of payment by cheque or bill of exchange, the goods delivered shall remain our property until such time as we are able to dispose of the amount. This shall also apply if the purchase price for certain deliveries of goods designated by the business partner has been paid. The inclusion of individual claims in a current account as well as the striking of a balance and the recognition thereof shall not affect the retention of title.
2. The business partner may not pledge the delivery item or assign it as security. The business partner is obliged to inform us immediately of any access by third parties to the goods, for example in the event of a seizure, as well as of any damage to or destruction of the goods, handing over the documents necessary for the objection. If the third party is not able to reimburse the judicial or extrajudicial costs incurred by us in this connection, the buyer shall be liable for these.
3. In the event of a breach of contract by the business partner, in particular in the event of default in payment or in the event of a breach of an obligation under the two preceding paragraphs of this provision, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods on the basis of the retention of title. The assertion of the retention of title as well as the seizure of the delivery item by us shall not be deemed to be a withdrawal from the contract; rather, we shall be entitled only to demand the return of the goods and to reserve the right to withdraw from the contract. If the business partner does not pay, we shall only be entitled to assert the above rights after a prior unsuccessful reminder and setting of a reasonable deadline, unless such setting of a deadline is dispensable according to the statutory provisions. The business partner hereby agrees to allow the persons commissioned by us to collect the goods subject to retention of title to enter and drive onto his premises for this purpose.
4. The business partner is entitled to resell and/or process the goods in the ordinary course of business. In this case, the following provisions shall apply in addition. 5.
5. The retention of title shall extend to the full value of the products resulting from the processing, mixing or combining of our goods, whereby we shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. Otherwise, the same shall apply to the resulting product as to the goods delivered under retention of title.
6. If goods subject to retention of title are sold by the business partner alone or together with goods not belonging to us, the business partner hereby assigns to us by way of security all claims in the amount of the value of the goods subject to retention of title or in the amount of our possible co-ownership share in accordance with the preceding paragraph. We accept the assignment. The obligations of the business partner mentioned in paragraph 2 also apply to the assigned claims.
7. We authorise the business partner, subject to revocation, to collect the claims assigned to us. If the business partner defaults on his obligations towards us, he shall name the debtors of the assigned claims to us and notify them of the assignment. However, we reserve the right to notify the respective debtor of the assignment ourselves and to collect the claim ourselves as soon as the business partner does not properly fulfil his payment obligations, is in default of payment or an application for the opening of insolvency proceedings has been filed or there is any other deficiency in his ability to pay.
8. The business partner is obliged to treat the reserved goods with care and to insure them against fire and theft at his own expense. The business partner's claims against his insurance company shall be deemed assigned to us in the event of damage up to the amount of the outstanding claim; we hereby accept this assignment.
9. If the realisable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the request of the business partner.
§ 9 Copyrights and Rights of Use to Stored Data and Software
1. the business partner is provided with the software and the data stored in the electronic control unit (central processing unit) in the gaming devices only for use within the framework of the proper operation of the respective device; they are not subject of the purchase contract and remain the property of psmtec GmbH.
2. copyrights to the software provided and to the pictorial, textual, audiovisual and other contents as well as any rights derived therefrom remain with the respective creator. The provisions of the Copyright Act shall also be deemed to have been agreed if the level of creation required under Section 52 UrhG has not been reached.
3. The software and the data stored in the electronic control unit (central processing unit) are exclusively intended for use on the gaming machines sold, rented or otherwise provided by us for use. We therefore grant the business partner a licence to the software which includes the right to use it for the operation of the gaming machine on which the software has been installed by us. The licence grants the business partner a non-exclusive, perpetual, royalty-free and irrevocable right to use the industrial property rights present in the computer software or represented by it in the goods or supplied as spare parts. This licence expressly excludes the right to modify, adapt, reproduce or copy or duplicate in any way or alter the software in any way. Likewise, this licence expressly excludes the right to transfer, distribute, sell or otherwise pass on the industrial property rights contained in or represented by the software. Unless the parties expressly agree otherwise, the licence is geographically limited to the territory of the Federal Republic of Germany.
4. In the event of a breach of paragraph 3, we shall be entitled to terminate all existing licence agreements with the business partner with immediate effect. The software shall be returned to us without delay. We expressly reserve the right to assert further claims, in particular claims for damages.
5. The business partner shall have no claim to the surrender of the source code of the software.
6. The data stored on the electronic control unit are not intended for the business partner or other third parties. As a rule, this data is specially protected against unauthorised access by means of a sheet metal housing and a seal.
7. The business partner may not remove copyright notices, serial numbers or other features serving for identification.
8. The business partner is obliged to take all reasonable precautions in his business against a violation of the aforementioned licence provisions by third parties, in particular, but not limited to, against unauthorised electronic access to the software or to the electronic control unit.
9. anyone who obtains this data without authorisation shall be liable to prosecution.
§ 10 Confidentiality
1. the business partner shall treat as confidential all information received from us in connection with the contractual relationship with pmtec GmbH or its offers, ancillary services, advice and information - irrespective of its form (written or oral, etc.) - and any information which we have designated as confidential ("Confidential Information"). He/she must maintain confidentiality about it and ensure that third parties (including family members and employees not involved in the matter) do not obtain unauthorised knowledge of it. This shall not apply if such information is generally available to the public. Confidential information includes in particular details of industrial property rights and any software, its source code, diagrams or data, or any other information concerning the software, as well as the processing method. The obligation to maintain confidentiality shall continue to exist after termination of the contractual relationship.
2. The business partner may only use confidential information for the contractual use of the goods and only pass it on to those employees who require this information for the contractual use of the goods. The business partner is not authorised to use the confidential information or parts thereof outside the contract for its own purposes or for the benefit of third parties. This shall not apply insofar as this has been expressly permitted by law or with our prior written consent. The business partner shall inform its employees, staff and distributors of the confidentiality of the information and oblige them to maintain complete confidentiality with regard to the information as if they were personally bound by these terms and conditions.
3. if the business partner culpably breaches the above confidentiality obligation, he is obliged to pay psmtec GmbH a contractual penalty amounting to 5% of the agreed net consideration as lump-sum compensation for each individual case of breach, unless the Client can prove that psmtec GmbH has suffered no or only minor damage. The Client expressly reserves the right to assert further claims, in particular the right to claim injunctive relief or further damages. The contractual penalty shall be offset against any possible compensation for damages.
§ 11 Safety shut-off for gaming devices according to § 33 c GewO
In order to ensure that the prescribed obligation to have a device inspected for its conformity with the approved design every 24 months is observed, each device is equipped with a safety circuit that automatically switches off the respective device 3 months after the expiry of the 24 months (total: 27 months). The persons or bodies responsible for inspecting the units for their conformity with the approved type shall be given the option of deactivating the units for a further 27 months, calculated from the 24th month. The costs incurred by us as a result shall be borne by the business partner.
§ 12 Warranty
1. Unless otherwise stipulated below, the statutory provisions shall apply to the rights of the business partner in the event of material defects and defects of title. The special statutory provisions in the case of final delivery of the goods to a consumer (supplier recourse pursuant to §§ 478, 479 BGB) shall remain unaffected.
2. the business partner's claims for defects presuppose that the business partner has duly fulfilled its obligations to inspect the goods and give notice of defects in accordance with § 377 of the German Commercial Code (HGB). Obvious defects must be notified to us in writing by the business partner within 14 days of receipt of the subject matter of the contract by the business partner or - if the defect only becomes apparent later - within 14 days of discovery. Timely dispatch of the notice of defect shall be sufficient to meet the deadline. If this does not happen, our liability for the non-notified defect is excluded.
3. The basis of our liability for defects is in particular the agreement reached on the quality of the goods. This includes all product descriptions which are the subject of the individual contract, irrespective of whether they originate from us, the business partner or the manufacturer. In all other respects, the statutory provisions shall apply to the assessment of the existence of a defect, unless a separate agreement has been made. However, we do not accept any liability for public statements made by the manufacturer or other third parties (e.g. advertising statements).
4. In the event of the existence of a defect and its timely notification, we shall initially provide warranty at our discretion by rectification or replacement delivery (subsequent performance), provided that the business partner proves that the defect already existed at the time of the transfer of risk. Our right to refuse subsequent performance under the statutory conditions remains unaffected. The expenses required for the purpose of rectification (in particular transport, travel, labour and material costs) shall be borne by us. This does not apply to increased expenses arising from the fact that the goods have been taken to a place other than the business partner's domicile or commercial establishment after delivery, unless the transfer corresponded to the intended use of the item. Likewise, if the business partner's request to remedy the defect turns out to be unjustified, the business partner may demand reimbursement of the costs incurred.
5. During the supplementary performance, the reduction of the purchase price or the withdrawal from the contract by the business partner shall be excluded. This shall not apply if we are entitled to refuse subsequent performance on the basis of statutory regulations. The warranty is excluded for used delivery items.
6. We are entitled to make the subsequent performance owed dependent on the payment of the purchase price due by the business partner. However, the business partner shall be entitled to retain a reasonable part of the purchase price in relation to the defect.
7. the business partner must give us sufficient time and opportunity for subsequent performance after consultation with him.
8. If we have rectified the defect twice or made a replacement delivery once and the existing defect could not be remedied as a result, as well as in the event that we unjustifiably refuse a necessary rectification or replacement delivery, unduly delay it or if the business partner cannot be reasonably expected to rectify the defect for other reasons, as well as if the prerequisites of §§ 281 II or 323 II of the German Civil Code (BGB) exist, the business partner may, instead of rectification or subsequent delivery, assert the remedies provided by law for withdrawal and reduction as well as claims for damages and reimbursement of expenses. Claims for damages and reimbursement of expenses shall be limited in accordance with the general liability provisions under § 13.
9. In the case of third-party products, our warranty shall be limited to the assignment of the claims we have against the supplier of the third-party product. In the event that the business partner cannot enforce its warranty rights against the supplier of the third-party product, we shall provide a warranty within the scope of these terms and conditions.
10. we are not obliged to repair or replace the goods if this is only possible at disproportionate cost. Such costs are disproportionate if they exceed 150% of the purchase price of the delivery item.
11. Any parts replaced under warranty shall become our property.
12. We shall not assume any warranty in the event of only insignificant deviation from the agreed quality and in the event of insignificant impairment of the usability as well as for damage which has occurred in particular due to unsuitable or improper use, faulty assembly or commissioning by the business partner or third parties, natural wear and tear, faulty or negligent handling such as in particular excessive stress, unsuitable operating materials, replacement materials, chemical or electrical influences. This does not apply if the damage is due to fault on our part, whereby we are only responsible for intent or gross negligence.
13. Warranty claims for our products shall become statute-barred after the expiry of 12 months from the handover of the delivery item to the business partner. Excluded from this regulation are claims for damages, claims due to defects which we have fraudulently concealed and claims arising from a guarantee which we have assumed for the quality of the item. Also excluded is the right of recourse according to § 478 BGB. The statutory limitation periods shall apply to these excluded claims.
§ 13 Compensation for damages
1. Unless otherwise agreed in these provisions, all claims of the business partner for compensation for damages of any kind, including reimbursement of expenses and indirect damages, are excluded, in particular for all breaches of obligations arising from the contractual obligation and from tort. The exclusion of liability shall also apply if we have used vicarious agents or assistants.
2. without prejudice to the preceding provision in § 12 of this contract and the following limitations of liability, we shall be liable without limitation for damage to life, limb and health caused by a negligent or intentional breach of duty by us, our legal representatives or our vicarious agents, as well as for damage covered by liability under the Product Liability Act, and for all damage caused by intentional or grossly negligent breaches of contract and fraudulent intent on our part, on the part of our legal representatives or vicarious agents.
3. Insofar as we have given a quality and/or durability guarantee with regard to the goods or parts thereof, we shall also be liable within the scope of this guarantee.
4. We shall be liable in accordance with the statutory provisions if we, our executive employees or vicarious agents have culpably breached material contractual obligations (cardinal obligations). Such an essential contractual obligation exists if the breach of duty relates to an obligation which the contractual relationship intends to impose on psmtec GmbH according to its content and purpose or the fulfilment of which makes the proper execution of the contractual relationship possible in the first place and on the observance of which the business partner regularly relies and may rely. In the event of a breach of cardinal obligations, our liability is, however, limited to the amount of the typical foreseeable damage in the case of only slight negligence.
5. We shall not be liable for simple negligent breaches of ancillary obligations that are not essential to the contract.
6. Any further liability is excluded irrespective of the legal nature of the asserted claim. This applies in particular to claims for damages arising from culpa in contrahendo, from other breaches of duty or from tortious claims for compensation for material damage in accordance with § 823 BGB.
7. Insofar as our liability is excluded or limited, this shall also apply with regard to liability for our legal representatives, executive employees and other vicarious agents.
§ 14 Trial delivery
If the business partner uses the device beyond the agreed trial period in the case of a purchase on trial, the purchase contract shall be deemed concluded. If we have specifically informed the business partner of this upon delivery or if he does not return the device within one week after our request, we are entitled to demand the full purchase price.
§ 15 Security deposit
1. in the event that after the conclusion of the contract
- circumstances become known to us which considerably reduce the creditworthiness of the business partner, or
- justified doubts arise as to the solvency of the business partner, or
- the business partner has provided us with incorrect information about his financial situation and as a result the fulfilment of his obligations towards us is jeopardised
- or the business partner fails to meet the agreed payment dates
we shall be entitled to declare all claims against the business partner to which we are entitled immediately due and payable. We shall notify the business partner of the due date in writing. Furthermore, in the aforementioned cases we may also demand the provision or strengthening of securities within a reasonable period of time or withdraw from the contract. If we wish to make use of our right to withdraw from the contract due to a lack of timely provision/strengthening of securities, we shall inform the business partner of this beforehand. This shall not apply in the event of default in payment on the part of the business partner. In this case we are entitled to withdraw from the contract immediately.
2. As long as we are entitled to the right of ownership on the basis of the retention of title (§ 8), we can also demand the provision of the vending machines (including the collection at the installation sites) instead of demanding the surrender of the delivered goods. The business partner undertakes to assign to us, upon request, all or part of his rights arising from the installation contracts and to take all necessary security precautions including the surrender of all keys in order to prevent unauthorised collection of the equipment elsewhere. At our request, the business partner shall provide us with a complete list of the installation sites and agree that we assign all rights transferred to us, in particular the right of collection, to third parties.
3. If the demand for return of the delivered goods is justified and the goods have been taken back, we shall be entitled to realise them in the best possible way by private sale for the account and at the risk of the business partner. The proceeds of the realisation, less reasonable realisation costs, shall be credited to the business partner's liability. Any excess proceeds shall be paid to him.
§ 16 Return of old appliances
The business partner undertakes to return the delivered devices to the manufacturer after expiry of the commercial use or to assure that it will properly dispose of the devices on its part in accordance with the requirements of the ElektroG.
§ 17 Assignment of claims
Claims of the business partner may only be assigned to third parties with our express written consent. We undertake to consent to the assignment if the third party indemnifies us against a double claim in the event of erroneous payment through no fault of our own.
§ 18 Applicable law, place of jurisdiction, final provisions
1. The place of performance for all obligations arising from the contractual relationship is our registered office in Illertissen.
2. The law of the Federal Republic of Germany shall apply exclusively. The provisions of the UN Convention on Contracts for the International Sale of Goods (CISG) are expressly excluded.
3. The contract language is exclusively German.
4. If the business partner is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from or in connection with the contractual relationship shall be our registered office. The same shall apply if the business partner does not have a general place of jurisdiction in Germany or if his place of residence or habitual abode is unknown at the time the action is brought. We are also entitled to sue our business partner at his place of business or residence.
5. all agreements made between psmtec GmbH and the business partner, in particular agreements on quality and guarantees, subsidiary agreements as well as supplements and amendments to this agreement, must be made in writing. This also applies to a waiver of the written form requirement.