1. SCOPE OF APPLICATION
The General Conditions of Sale apply to all sales transactions of amusement machines and accessories thereof between Merkur Dosniha (hereinafter "Seller") and the buyer party (hereinafter "Buyer").
If the buyer is interested in the modification and/or addition of any term or condition, these will require the express written acceptance of the seller.
These general conditions of sale shall apply unless the parties expressly agree in writing to other specific conditions.
These general conditions have been made available to the buyer prior to the commercial relationship(s) to which they apply.
2. OBJECT/ORDERS
The agreement for the sale of the goods indicated in the order confirmation (hereinafter "the order confirmation") only takes effect if the buyer confirms with his signature the corresponding order document issued by the seller.
The sending and signing of the order by the buyer implies that he/she knows and fully accepts the general conditions of sale and the terms set out in the order confirmation.
All orders received will not be considered as orders to fulfil the contract but non-binding commercial offers subject to the acceptance of the seller.
Likewise, once an order has been placed and confirmed, no modification will be accepted unless expressly accepted by the seller.
The information contained in catalogs, websites, brochures and the like, as well as other information provided in writing or verbally, shall only be decisive when they have been expressly mentioned in the order confirmation.
3. CONDITIONS PRIOR TO DELIVERY
Prior to the commencement of the seller's obligation to deliver the machines, all technical questions shall be clarified and all obligations incumbent on the buyer shall be fulfilled, in particular all applicable permit, authorisation and licence obligations.
The Buyer undertakes to notify the Seller immediately in writing prior to delivery of the machines of any possible personal or objective impediment to receiving the machines or using them at the place of destination. In addition, the Buyer must ensure that the machines are used in accordance with all applicable legal provisions (in particular gaming regulations and rules on the granting of permits, licenses and authorizations) and with the requirements of the competent authorities.
4. PRODUCT SPECIFICATIONS
The goods to be delivered must comply with the specifications and quality requirements set out in the order confirmation. As long as there are no specifications or quality requirements set out in the order confirmation, the goods comply with the contract if they are suitable for the purpose for which goods of the same description are normally used in Spain.
Our product is supplied as is, without any other guarantee, explicit or implicit, including but not limited to the guarantees of merchantability, satisfactory quality, suitability for a specific purpose, accuracy, enjoyment and non-infringement of third party rights.
For the correct operation of the machine/s, the contracting of the services established by the manufacturer will be required.
If the buyer intends to use the goods in circumstances that are unusual or could involve a particular risk to the safety and health of any person or the environment, the buyer must inform Merkur Dosniha in writing of these intentions before concluding the sales agreement.
In case of improper or unlawful use of the machines, the seller reserves the right, even after receiving the full purchase price, to promote inhibitory actions, to claim damages, as well as to immediately terminate all contracts concluded with the buyer.
All statements contained in brochures, drawings, illustrations and other descriptions, in particular statements regarding colors, form and measurements, do not constitute a dissatisfaction of the goods insofar as the goods are suitable for the purpose for which they are customarily used in Spain.
Rights and claims of third parties (in particular rights and claims based on titles or industrial property rights) only constitute a defect if these rights and claims are in force and registered in Spain and prevent the use of the goods in Spain.
5. DELIVERY OBLIGATION. TRANSFER OF RISK.
The seller is obliged to deliver the goods referred to in the order confirmation in packaging suitable for the means of transport.
Unless specifically indicated otherwise in the order confirmation, deliveries will be made to the place of delivery indicated in the order confirmation or in the event that the place of delivery is not indicated, it will be Avenida de Portugal, 6. Plot 8.1-4, 30840, Pol. Las Salinas - Alhama de Murcia, Murcia.
The buyer must prepare the access of the place of delivery of the machines to allow the transporter of the same ones to accede of rapid, simple form and without delays.
The buyer is obliged to receive the shipments from Merkur Dosniha and sign and seal the delivery notes, at that time recording in writing the lack of packages and visible damage to the packaging. Otherwise, it is understood that the packages have been received in accordance with the quantity and condition.
As any expense is increased by the fact that the buyer has changed the goods to a place not indicated in the order confirmation or our warehouse in Avenida de Portugal, 6. Parcel 8.1-4, 30840, Pol. Las Salinas - Alhama de Murcia, Murcia, these expenses will be of the buyer.
The delivery time indicated in the Order Confirmation will always be indicative and in no case will the delivery time be binding. Failure to comply with the delivery date does not constitute a breach of contract. In the event that delivery dates are agreed, the seller reserves the right to determine the exact delivery time within the delivery period or to extend or introduce variations with respect to the agreed delivery dates due to any operational disturbances or delays in the supply of its suppliers. The Buyer expressly waives any claims for damages due to delays in the delivery of the machines.
All delivery dates and delivery periods are dependent on the timely performance of the buyer's obligations. In particular, the buyer has to obtain or confirm any necessary permissions and make the agreed payments in due time. The seller is also exempt from maintaining delivery dates when the buyer subsequently makes changes to the initial order.
The seller may make partial deliveries of the order, with each partial delivery incurring a corresponding payment obligation on the part of the buyer.
The transfer of risk from the vendor to the purchaser shall take place upon delivery and, where applicable, installation of the machines to be purchased at the place of delivery and upon signature of the relevant delivery notes. If the Buyer does not accept delivery, the transfer of risk from the Seller to the Buyer occurs at the time when the Buyer confirms the order for the goods.
In addition to its rights, the seller is entitled to suspend performance of its obligations if there are reasonable indications that the buyer will not meet its obligations under the sales agreement, in particular not being able to pay the agreed price in due time.
6. FORCE MAJEURE
Any impossibility as a result of force majeure or other unforeseeable or unalterable circumstances both in manufacture and distribution or incident outside the responsibility of the seller, including, without limitation, strike, lockout, acts of public authorities, stoppage, exports or imports, shall by its duration and according to its impact, relieve the seller of its obligations to comply with any agreed delivery period and delivery time, as well as any other obligation, without the buyer having the right to terminate the purchase and without the buyer being able to claim any compensation.
7. TERMS OF PAYMENT
The buyer is obliged to pay the agreed purchase price into the bank account indicated by the seller.
The prices include the costs of transporting the machines to the place of delivery indicated in the order confirmation and installing the machines there.
Any discounts, price reductions and/or other rebates will require a special written agreement.
Payment shall be made without deductions and within the date or time specified in the confirmed order. The period will be calculated from the date of invoice. In the absence of any indication of payment dates, payments will be made within 30 days of the date of the invoice.
After the deadline has passed without the buyer having paid the invoice in full, and without the need for a summons, the buyer will be in arrears and will accrue interest, expenses and costs incurred in accordance with the applicable regulations.
In case of delay, the seller will have the right to claim, independently of the responsibility of the buyer, default interest in the amount of 5% over the legal interest rate of money applicable in Spanish territory.
In the event of delay on the part of the buyer and irrespective of other rights of the seller such as the right to terminate the contract, the seller may delay the performance of its own obligations until satisfactory payment of the amounts due and extend the delivery period accordingly. In any case, the seller reserves the right to claim extra-judicial costs, especially the costs of summonses and lawyers' fees.
The Buyer shall only be entitled to set off any claims it may have against the Seller in the event of an express written agreement between the parties, or in the event of a claim recognised by a court decision.
8. RIGHT OF RETENTION
The seller will retain ownership of the machines delivered, and therefore ownership of the machines will remain in its favour until the buyer has made full and effective payment of the invoices corresponding to the sale of the machines in the agreed form, as well as any other claims made against the buyer, which have accrued under the particular agreement, including those that are due in the future.
The purchaser undertakes to take all necessary measures to proclaim, respect and enforce this right of ownership to third parties. In particular, and without the list being restrictive, he undertakes to
- In the event of seizure of the machine, to declare to the seizer that he is the depositary of the machine, and if, however, the seizure is carried out, to demand that his declarations be recorded in the minutes that are drawn up and taken note of.
- In the event of a legal action for insolvency proceedings, the machine must not be recorded as an asset in the balance sheet. And take care that the machine is not included in the active mass of the contest.
When the buyer incurs a delay in the fulfillment of the payment obligations derived from these General Conditions, the seller may, without prejudice to the requirement of interest for late payment, with a cumulative character and at its free discretion:
- Interrupt the delivery of orders to the buyer
- Demanding the return of the machines
- Retain any other machines purchased or rented by the buyer until the debt is paid in full.
9. DUTY OF EXAMINATION AND NOTIFICATION
The buyer is obliged to examine the machines thoroughly with regard to any deviations in type, quantity, quality and packaging. If necessary, the buyer is obliged to carry out the examination with the help of external third parties. The machines must be checked at the place of delivery.
In case of apparent damage, the buyer has to notify it on the delivery note which is delivered with the machines at the time of delivery of the machines.
If it is established that damage has occurred to the machines that could not be observed at the time of delivery, the buyer must, within 7 days, make a written complaint to the seller.
In both cases, the right to claim under warranty is excluded if the buyer does not notify the apparent damage on the delivery note or does not make the corresponding claim to the seller within 7 days.
If the buyer does not comply with the obligations described, any return must be previously authorized by the seller.
Apart from the above, and with regard to defects, the statutory provisions in force shall apply.
In the event of original defects of the machines, the seller reserves the right to opt, at its sole discretion, for the rectification of the said defect, either by repair in its factory or by replacement of the defective part or machine, either at its premises or at the buyer's own premises where the machine is located. All transport, supply or labour costs incurred in the rectification of the defect or the replacement shall be borne by the seller, who shall also assume the cost of the part to be replaced. Replaced parts shall in any case remain the property of the seller. The buyer is obliged to return the defective parts replaced to the seller within thirty (30) days of their replacement. The costs of transporting the faulty part to the seller's address shall be borne by the buyer, and carriage paid delivery is obligatory. In the event that the buyer does not return the replacement parts to the seller within the specified period, the buyer shall be obliged to pay the seller the amount of the replacement part, for which purpose the seller shall send the corresponding invoice.
The Buyer shall have the right to cancel the contract only on the grounds of hidden defects and provided that it can prove that on receipt of the machines there was an essential defect for the correct operation of the same, the rectification of which is in fact impossible, or if the Seller has not proceeded to eliminate this defect despite having granted the Buyer a period of time for this purpose in writing, which in no case may be less than fourteen (14) days.
10. WARRANTY AND SPARE PARTS
The seller guarantees that all its products have been manufactured under the strictest quality controls, as well as administrative approval and legalization before the government and/or administrative authority of the place of destination.
Since this sales operation between the seller and the buyer is a commercial transaction between companies, the regulations for the Defense of Consumers and Users and other laws that complement them do not apply to it.
Merkur Dosniha guarantees the existence of spare parts for the products manufactured by it during the time it manufactures them and for a period of TEN (10) years from the date it stops manufacturing the product.
The warranty period will be one (1) year from the date of the sales invoice.
If the sale and purchase involves the exercise of a right of purchase option granted in a previous lease, the warranty period shall be one (1) year from the date of commencement of the lease. In the event that the purchase option is exercised after one (1) year from the date of commencement of the lease, there is no warranty as the lease has expired, and the buyer waives any claim.
In relation to second-hand objects of sale, the warranty period shall be six (6) months from the date of the sale invoice.
The aforementioned periods are not restarted or extended by the delivery of substitute goods or the repair of the same.
They are excluded from the warranty:
Improper, inadequate or negligent use of the machines by the buyer or his dependents or by third parties,
If you do not actively participate in the determination of the defect or if you prevent the seller from correcting it.
Damages caused as a result of handling by personnel other than the seller.
Damages due to fortuitous case, force majeure and natural disasters.
Damage caused by materials or electrical connections or services used by the customer.
The elements deteriorated by the negligent or inadequate handling on the part of the client or the users of the product.
The damages derived from the assembly or installation, commissioning and maintenance of the machines when these works are not carried out by qualified technical personnel of the buyer.
Damage caused to the machines by transport when such transport is carried out by the purchaser.
The guarantee and all responsibility will be immediately extinguished in the event that, without the prior written consent of the seller, maintenance work, modifications of any kind or manipulations are carried out on the machines being sold.
11. LIMITS AND EXCLUSIONS OF LIABILITY
Any liability is excluded:
A. Damage caused by the conduct of our suppliers or subcontractors. The seller is not responsible for modifications or damages to which the buyer or third parties have contributed.
B. Any responsibility is excluded for damages, direct or indirect, produced in the machine or in the place where it was installed, derived from any type of manipulation (technological, with use of force, etc) or from the fraudulent use that any person made of it. Likewise, any liability for damages, direct or indirect (including consequential, incidental and loss of profit), that such manipulations or fraudulent use of the machine could cause to the buyer or any third party is excluded.
C. Also excluded is any liability for consequential damages such as claims by players or for incidental damages, including but not limited to, loss of business, loss of data, loss of profits, damages and/or costs for interruption of production and loss of use or any gambling advantages obtained by any person for himself or any third party, whether or not such events occurred with or without technical aids, or any other manipulations of the game or the result thereof, or for any other claims of third parties against the buyer.
D. Misuse of the program, configuration and defective installation.
E. Damages caused by software of other manufacturers.
Any claim for damages is expressly excluded if there is no intent or gross negligence of Merkur Dosnhia. In any case, the liability of Merkur Dosniha is limited to the amount of purchase of the products. Merkur Dosniha in no case be liable to the buyer for loss of profits, loss of income, or in general, any losses that might be suffered by the buyer due to non-delivery or defects in the products.
The above exclusions do not apply:
Personal injury or physical damage.
Merkur Dosniha is only liable for damages if it is proven that the damage was caused by intentional acts or gross negligence, although the buyer has to prove that our managers or employees or other staff members have deliberately or negligently breached contractual obligations.
To claims under the product liability law.
To liabilities that can be excluded or limited to us in accordance with applicable law.
In addition to the above, the statutory provisions shall apply.
12. INDUSTRIAL AND INTELLECTUAL PROPERTY
Merkur Dosniha reserves all industrial and intellectual property rights of any documents, images, drawings, as well as the design of the machines and the specific software implemented in the machines.
The buyer undertakes to safeguard, protect and respect the rights of industrial and intellectual property of Merkur Dosniha.
All rights not expressly licensed shall be deemed duly reserved to Merkur Dosniha.
The software of the machines can not be sold. Instead, the buyer is granted only a non-exclusive, non-transferable, free and irrevocable license to use the software, but strictly and only in connection with the goods purchased under the sales agreement. This license does not include the right to make modifications, alterations, adaptations or copies of the software by the buyer.
Furthermore, neither the buyer nor any third party can or has the right to access the data recorded on the machine's storage unit. If someone accesses such data without authorization, it is a criminal offence.
The buyer shall immediately inform Merkur Dosniha, S.L. of any infringement or indication of infringement of industrial and intellectual property rights that comes to its knowledge or any claim of infringement of rights of third parties by the machines or their manufacture, use, marketing, sale or disposal.
The violation of the obligations contained in this clause will be considered cause for termination of the contract entitling Merkur Dosniha, SL to the corresponding compensation for damages that have occurred as a result of such violation.
13. CONFIDENTIALITY
Confidential information means any information that the seller discloses to the buyer in the course of negotiations or during the execution of the sales agreement in any format or medium (whether oral or written), marked or notified to the buyer as confidential or that in the normal course of business could be considered confidential.
Regardless of the above, all information and/or documentation referred to in relation to the "Intellectual Property" clause constitutes confidential information.
The buyer is obliged to keep the confidential information in strict confidentiality and to take precautions and all reasonable measures to protect the confidential information.
The buyer agrees to use at least the same degree of diligence to avoid unauthorized disclosure, use or publication of the confidential information.
14. REGULATORY COMPLIANCE
The buyer acknowledges that Merkur Dosniha operates in a highly regulated environment and that we support a program to comply with legislation to protect its name, position, integrity and goodwill by carefully examining and determining the integrity and suitability, initially, as well as subsequently, of any person or company with whom it cooperates commercially.
It is also essential that the buyer's integrity be kept intact. The buyer is required to comply with all money laundering laws and similar regulations.
15. DATA PROTECTION
In accordance with the provisions of current regulations on the Protection of Personal Data, we inform you that your data will be incorporated into the processing system owned by MERKUR DOSNIHA SL with CIF B57683039 and registered office located at MAQUINARIA, 6 - 1º 07011, PALMA DE MALLORCA (ILLES BALEARS), in order to meet the commitments under the contract signed by both parties. In compliance with the current regulations, MERKUR DOSNIHA SL informs that the data will be kept during the LEGALLY ESTABLISHED TERM.
With this clause you are informed that your data will be communicated if necessary to: public administrations and all those entities with which communication is necessary in order to comply with the provision of the service mentioned above.
The fact of not providing the data to the mentioned entities implies that the provision of the services object of this contract cannot be fulfilled.
We also inform you that the treatment indicated in the previous paragraph is required for the execution of the contract between you and our company.
MERKUR DOSNIHA SL informs that it will proceed to treat the data in a legal, loyal, transparent, adequate, relevant, limited, exact and updated way. That is why MERKUR DOSNIHA SL undertakes to take all reasonable steps to ensure that these are deleted or rectified without delay when they are inaccurate.
In accordance with the rights conferred by current legislation on data protection may exercise their rights of access, rectification, limitation of treatment, deletion, portability and opposition to the processing of personal data and consent to the processing of them, addressing your request to the above address or email lopd@merkurdosniha.com
You may address the competent Control Authority to submit the complaint you consider appropriate.
Finally, MERKUR DOSNIHA SL informs that by signing this document the buyer gives explicit consent for the processing of the data mentioned above.
16. COMMUNICATIONS
Unless expressly provided otherwise in these general conditions, any notifications and communications that the parties must make between themselves shall be made by any means valid in law and, in particular, by bureaufax, letter, email with acknowledgement of receipt, or any other written procedure that allows evidence of receipt by the addressee to be sent to the addresses that correspond to each party.
Notification made at the addresses communicated by the parties shall not be deemed to be effective or of any value whatsoever when the lack of reception is due to a cause not attributable to the party who sent it, either because the establishment was closed when notified, or due to any other circumstance attributable, by action or omission, to the party who should have received it, in which case the notification shall be deemed to have been completed and fully formalized.
17. NULLITY
In the event of total or partial nullity of any of the present general conditions, this will not affect the rest of the conditions, which will continue to be applicable between the parties.
In this case, the parties must replace the null or invalid conditions by another legally valid condition that may have the same commercial result and purpose as the null or invalid provision.
Any document relating to the present general conditions that is the subject of negotiation between the parties shall not be valid insofar as it is not signed or ratified by the seller.
18. APPLICABLE LAW
The present general conditions as well as the contractual relations between the parties will be governed by Spanish law.
19. JURISDICTION AND COMPETENCE
For the resolution of any question or controversy that may arise from these general conditions and/or the contractual relations signed under them, the parties expressly submit themselves to the jurisdiction and competence of the Courts and Tribunals of Palma de Mallorca, expressly renouncing any other jurisdiction that may correspond to them.