CONDITIONS OF SALE
In these conditions "Prosperity Gaming" means Prosperity Gaming Ltd and its officers, employees and agents and "you" means the person(s) purchasing the Goods or Services from Prosperity Gaming which these conditions accompany or, wishing to enter this agreement in order to purchase Goods or Services from time to time.
1 PRICE, FORMATION AND SCOPE OF AGREEMENT
1.1 Subject to anything to the contrary in the Quote: (a) the price for the provision of Goods or Services is Prosperity Gaming’s standard list price for them; (b) the Quote may only be accepted within 30 days of its date of issue; (c) if you accept the Quote, our agreement commences on your acceptance; (d) all prices quoted are exclusive of all taxes including goods and services tax; and (e) prices may include a sales commission or Prosperity Gaming may be paying a sales commission to a third party.
1.2 All quotes or sales agreements reference this agreement. It governs all Orders placed pursuant to sales agreement. You cannot cancel any order except with Prosperity Gaming’s consent. Prosperity Gaming may grant that consent subject to a charge.
2 PAYMENT
Prosperity Gaming may issue invoices to you once a month or at such other times as Prosperity Gaming considers appropriate. You must pay Prosperity Gaming all amounts specified in each of Prosperity Gaming’s invoices at the address and time specified in the invoice (or within 30 days if no time is stated). Time is of the essence in relation to all payments of money to Prosperity Gaming under this agreement. You must not make any deductions of any nature from any amounts you owe to us. Prosperity Gaming may charge you interest at the Interest Rate on any overdue amount compounded daily.
3 PROPERTY AND RISK
3.1 Prosperity Gaming retains title in and ownership of all Goods until the last to occur of: (a) payment in full for the Goods and all other Goods supplied by Prosperity Gaming to you; and (b) where you have traded-in products to Prosperity Gaming, those traded-in products have been delivered into the possession or control of Prosperity Gaming and title has passed to Prosperity Gaming.
3.2 Until Prosperity Gaming has been paid in full for all Goods delivered to you, you must keep all Goods as a bailee of Prosperity Gaming. Prior to obtaining property in the Goods you must not sell, alter, damage or otherwise deal with the Goods. Prosperity Gaming may repossess any Goods if you breach any of the terms of these conditions. You must do all things reasonably incidental to allow Prosperity Gaming and its agents to repossess any Goods pursuant to this clause or to inspect the Goods, including allowing them to enter onto any property you own or control.
3.3 Risk in the Goods passes to you on delivery.
4 DELIVERY AND ACCEPTANCE
4.1 Delivery of the Goods or Services occurs at the time Prosperity Gaming makes the Goods available for collection and notifies you of this fact and the location from which they may be collected or performs the Services. Prosperity Gaming may agree to arrange for the carriage of the Goods after delivery to any place nominated by you. If it does so, it does so as your agent and at your cost. Where you fail to collect any Goods immediately on delivery, Prosperity Gaming may charge you a storage fee in relation to those Goods, and may dispose of those Goods if you fail to collect them within a reasonable time.
4.2 You must inspect the Goods or Services as soon as possible upon delivery or performance. Where a third party courier is used you must sign for the inspected goods, noting any damage or issue. Where the Goods or Services are not in accordance with your order you must notify Prosperity Gaming in writing of that fact and your reasons within 24 hours of delivery. If you do not give any notice under this clause you waive any right to reject them and you must pay for the Goods or Services in accordance with these terms. You can not refuse to accept Goods or Services merely because they are not delivered by any given date or dates.
5 INSTALLATION AND DOCUMENTATION
Where the Quote indicates that installation is included in the price for the Goods, Prosperity Gaming will install those Goods at a time to be agreed. You must at your expense prepare any location for installation of the Goods in accordance with Prosperity Gaming’s reasonable directions.
6 WARRANTY
6.1 Prosperity Gaming will, subject to your compliance with clause 6.2, at its cost and at its option repair or replace any faulty Goods or re-perform faulty Services or refund the price paid for the Goods or Services within 3 months from the date of delivery of the Goods or Services ("Warranty Period"). The warranty does not apply to consumables.
6.2 You must: (a) notify Prosperity Gaming of any fault and prove to Prosperity Gaming’s reasonable satisfaction that the fault is due to bad workmanship or faulty materials or faulty Services supplied within the Warranty Period by or on behalf of Prosperity Gaming; and (b) if requested by Prosperity Gaming, return the Goods to Prosperity Gaming at your cost.
7 GAME CONVERSIONS
7.1 Where a game conversion for any machine is performed, whether by Prosperity Gaming or a third party, you must ensure the return to Prosperity Gaming of all material associated with the previous game from which the machine is converted including, as appropriate: EPROMs, , Smart card, data card, artwork, meters, circuit boards, read-only memory devices and ancillary components of an electronic gaming machine.
8 LIMITATION OF LIABILITY, IMPLIED TERMS
8.1 To the extent permitted by law:
(a) Prosperity Gaming excludes all implied warranties and conditions.
(b) Any liability Prosperity Gaming has for breach of an implied condition or warranty is limited, as determined by Prosperity Gaming in its sole discretion, to:
(i) replacement of the Goods or supply of equivalent Goods;
(ii) repair of the Goods;
(iii) payment of the cost of replacing the Goods or of acquiring equivalent Goods;
(iv) payment of the cost of having the Goods repaired; or
(v) in the case of Services, supply of the Services again or payment of the cost of having the Services supplied again.
8.2 Subject to clause 8.1, Prosperity Gaming has no liability for loss or damage which arises directly or indirectly as a result of this agreement or of any Goods or Services provided under it whether in contract, tort, for negligence or otherwise and whether that damage is direct, indirect, consequential or otherwise including lost profits or lost opportunity.
8.3 You must indemnify and keep Prosperity Gaming indemnified against all loss or damage suffered by Prosperity Gaming arising out of any breach by you of this agreement or arising out of your use, operation or possession of the Goods or Services, or the use, operation or possession of the Goods or Services by someone with your authority or permission.
8.4 You acknowledge that any revenue forecasts provided to you by Prosperity Gaming are theoretical indications only and you cannot and do not rely on them in entering into this agreement and that the Goods or Services have been acquired for business purposes.
9 INTELLECTUAL PROPERTY AND CONFIDENTIAL INFORMATION
9.1 Nothing in this agreement and nothing done by Prosperity Gaming pursuant to this agreement conveys or vests any interest in any Intellectual Property to you.
9.2 Prosperity Gaming grants to you a non-exclusive, royalty-free and perpetual licence to use any Intellectual Property provided to you pursuant to this agreement by Prosperity Gaming only for the purpose of legal gaming at the licensed gaming venues owned or operated by you. This licence specifically excludes to the extent permitted by law any right to modify, adapt, supply, reverse engineer, sell or sub-licence, or otherwise deal with that Intellectual Property, including the sale, sublicense, supply or other dealing with Intellectual Property in Games or Game Conversions as installed on an EGM.
9.3 Prosperity Gaming may revoke a licence in relation to specific Intellectual Property, whether in general, or in relation to specific Games or Game Conversions, Goods or Services, at any time after the Intellectual Property or Games or Game Conversions, Goods or Services containing the Intellectual Property cease to be within your possession, custody or control or where you fail to pay for the Goods or the Games or Game Conversions or the Services within the time required under this agreement. You must not do or cause to be done any act or thing impairing or tending to impair any right, title or interest of Prosperity Gaming to any Intellectual Property including without limitation: altering or modifying any notice of copyright or other proprietary notice incorporated in or affixed to any part of the Games or Game Conversions or Goods.
9.4 You agree that you are on notice that any sale, sublicense or transfer of Intellectual Property forming part of the Game or Game Conversion in breach of these terms and conditions (including such sale, sublicense or transfer together with the EGM on which the Game or Game Conversion is installed) may render your company liable for authorisation of infringement of Prosperity Gaming’s intellectual property rights.
9.5 All information concerning Intellectual Property or which is otherwise confidential to Prosperity Gaming (the latter excluding information which is in the public domain other than by breach of this confidentiality undertaking) belongs and is confidential to Prosperity Gaming and must not be disclosed by you to any person or used by you other than to the extent required to operate the Goods.
9.6 Where your company acquires the Goods supplied under this Agreement under arrangements with an Approved Financier (the Financier), your company must ensure that the Financier agrees to be bound by these terms and conditions as applicable. In particular, the Financier must not sell, supply or transfer the intellectual property forming part of a Game or Game Conversion whether or not installed on an EGM, to any person (other than the person to whom the Goods are supplied by Prosperity Gaming) unless that person has obtained a valid licence to use such Game or Game Conversion from Prosperity Gaming).
10 COMPLIANCE WITH LAWS
10.1 You must obtain and maintain any Approval and provide a copy of any Approval promptly on demand from Prosperity Gaming.
10.2 During any period in which you are in breach of clause 10.1 or Prosperity Gaming or you are unable to obtain any Approval, Prosperity Gaming’s delivery obligations are suspended until you are no longer in breach or the Approval is obtained. Prosperity Gaming may terminate this agreement without liability by notice in writing if its obligations are suspended under this clause 10.2 for 30 days or more.
11 REGULATORY MATTERS
11.1 You must provide Prosperity Gaming with all documentation, information and assurances requested by Prosperity Gaming for the purpose of complying with any requests or requirements of any Regulator. Your failure to comply with any aspect of this clause 11 is a material breach of this agreement.
11.2 Prosperity Gaming’s obligations under this agreement are, at its option, suspended and Prosperity Gaming may terminate this Agreement immediately by written notice to you, where:
(a) you fail to apply for, obtain or maintain any Approval; or
(b) any member of the Prosperity Gaming Group reasonably believes that the continuation of this Agreement will have a detrimental impact on the ability of the Prosperity Gaming Group (or any one or more members of it) to hold, maintain or obtain any licence or consent issued or to be granted by any Regulator; or
(d) any Regulator disapproves of this agreement or any part of it.
12 TERMINATION
12.1 If you breach this agreement and fail to remedy that breach within 5 business days of receipt of written notice, Prosperity Gaming may at its election and without prejudice to its other rights and remedies: (a) terminate this agreement immediately in whole or in part by written notice; (b) seek specific performance of this agreement in whole or in part; (c) seek damages for default; or (d) repossess and resell any Goods delivered to you pursuant to it which you have not paid for in full. In relation to Games or Game Conversions installed on any Goods, Prosperity Gaming may, at your cost, erase the Games or Game Conversions or Intellectual Property installed which you have not paid for in full by the date specified in the invoice. You irrevocably permit us to enter your premises to enforce our rights under this clause 12.1.
12.2 Prosperity Gaming may terminate this agreement in whole or in part by notice in writing if you commit an act of insolvency or you die or "you" includes a person who dies.
12.3 Prosperity Gaming is not liable for any damages sustained directly or indirectly by you or any other person as a result of Prosperity Gaming exercising any of its rights under this clause 12.
12.4 Where Prosperity Gaming’s right to terminate arises under clauses 10 or 11, Prosperity Gaming may require you to return any Goods sold under this agreement to the extent Prosperity Gaming considers reasonable to protect any licence or relationship with a Regulator. You must return those Goods to Prosperity Gaming at your cost as soon as possible after a request by Prosperity Gaming.
13 ADDITIONAL TERMS REGARDING PLAYTECH
13.1 Additional Terms and conditions apply to the sale and placement of terminals supplied by Playtech Ltd /Videobet Ltd.
13.2 Where a terminal is placed on a venue on trial or by sale, the venue owner agrees to freely grant access to the terminal upon submission of a reasonable request.
13.3 Playtech agree to supply a minimum of 2 new games per year to be made available for Irish customers.
13.4 Playtech will provide ongoing provision of game content and server-side support & maintenance for the terminals provided.
13.5 This ongoing service is subject to a 5% levy of the GGR of each terminal to be billed monthly in arrears.
13.6 In the event that Playtech can no longer support the market due to regulatory reasons, Playtech will make available standalone content for the terminal.
14 GENERAL TERMS AND DICTIONARY
14.1 These conditions, any schedules attached to them and any invoice or quotation referencing these conditions constitute the whole of the agreement between us and supersede any prior representations, statements and agreements in relation to their subject matter. These conditions apply to the exclusion of all documents submitted by you (whether before or after the date of this agreement) unless and until Prosperity Gaming has expressly agreed to those terms in writing signed by an authorised officer of Prosperity Gaming. These conditions may not be varied except in writing signed by an authorised officer of Prosperity Gaming. The most recent Quote (if any) takes priority over these terms and conditions.
14.2 These conditions are governed by the laws in force in Ireland.
14.3 Prosperity Gaming may sub-contract or otherwise arrange for another person to perform any part of this agreement or to discharge any of Prosperity Gaming's obligations under this agreement without your prior written consent.
14.4 Neither party is liable for any delay or failure to perform its obligations under this agreement (except an obligation to pay money) if such delay or failure is due to any cause outside their reasonable control. If delay or failure to perform its obligations pursuant to this clause 13.3 occurs, the performance of that party's obligations are suspended. If such a suspension exceeds 90 days, either party may immediately terminate the agreement by notice in writing to the other party.
14.5 The United Nations Convention on Contracts for the International Sale of Goods (also known as the Vienna Convention) is expressly excluded.
14.6 In this agreement:
"Approval" means any licence or requirement or approval or authorisation of any kind required by any Regulator whether relating to the Goods or Services or this agreement or the laws of any country into which the Goods or Services will be imported, sold or from which the Goods or Services will be exported.
“Prosperity Gaming Group” means Prosperity Gaming Leisure Limited and its subsidiary companies;
“EGM” means an Prosperity Gaming electronic gaming machine.
“Game” means a poker machine game capable of installation and operation on an EGM consisting of the software or firmware expressing the poker machine game and associated artwork.
“Game Conversion” means the conversion of the existing Game in an EGM to a new Game that will operate on the EGM.
“Goods” includes all goods to be supplied to you by Prosperity Gaming which are not covered by another written agreement and includes all things set out in the Quote.
"Intellectual Property" means any copyright, trademark, patent or design right or any other intellectual property right in the Good or Services or the Game or Game Conversion whether registered or not in Australia or elsewhere.
“Interest Rate” means 3% above the annual interest rate charged by the Commonwealth Bank of Australia Ltd on an overdraft facility in excess of $100,000.
"Purchase Order" includes a Quote signed by you accepting these terms and conditions.
“Quote” means the written document provided to you by Prosperity Gaming referencing this agreement and relating to Goods or Services.
"Regulator" includes any governmental or regulatory authority.
"Services" includes all services to be supplied to you by Prosperity Gaming which are not covered by another written agreement and includes all things set out in the Quote.