TERMS & CONDITIONS

of the contractor MARTINI-SPORTSWEAR GmbH, hereinafter referred to as MARTINI-SPORTSWEAR.

Scope of Application

Contract basis. MARTINI-SPORTSWEAR concludes its contracts and provides its services exclusively on the basis of its written quotes and service descriptions, as valid from time to time, which form part of a quote (e.g. individual specifications or general folders), price lists and these Terms. Unless specific to a certain project (e.g. individual specifications), descriptions of services, prices lists and terms and conditions, as amended from time to time, are thus applicable to all legal relationships between MARTINI-SPORTSWEAR and the customer and, from the conclusion of the first contract, therefore automatically govern also all other contracts that are concluded between MARTINI-SPORTSWEAR and the relevant customer, even if those price lists, product descriptions and terms and conditions are not explicitly incorporated by reference in these contracts.

Future changes. Changes in the description of services, price lists and the Terms of MARTINI-SPORTSWEAR will be notified to the customer in writing and shall be deemed to have been agreed, unless the customer objects to changes within two weeks. Once the new agreement enters into force, changes in the Terms will be applicable also to all other current contracts.

Supplementary agreements. All supplementary agreements of any kind that are reached both prior to the conclusion and also throughout the term of a contract are valid only if made in writing. This applies also to any waiver of the written form requirement.

Contract components of the customer. Even if MARTINI-SPORTSWEAR is aware of the customer’s requirements in respect of the service content, these will form part of the contract only if MARTINI-SPORTSWEAR has integrated these into the offer or explicitly acknowledges these otherwise, for example by reference to these requirements. Even if MARTINI-SPORTSWEAR is aware of legal texts of the customer, such as terms and conditions or contract clauses, these will be applicable only if MARTINI-SPORTSWEAR accepts these by way of an additional note (such as “Terms and conditions accepted”) which expressly refers to and covers a legal text. Otherwise, MARTINI-SPORTSWEAR expressly objects to the inclusion of the customer’s legal texts such as terms and conditions or contract clauses. The fact that MARTINI-SPORTSWEAR has simply accepted the customer's requirements in terms of the service content therefore does not mean that MARTINI-SPORTSWEAR has accepted the customer's legal texts, even if those requirements should include these legal texts (and contain language such as "Our General Terms and Conditions shall apply").

Inconsistencies. In case of any inconsistency between the quote, service descriptions (project-specific documents, general documents), price lists, if any, and MARTINI-SPORTSWEAR’s Terms, these shall apply in the above order. The individual elements will hence automatically amend the more general elements of the contract. In case of any inconsistency between MARTINI-SPORTSWEAR's elements of a contract and the customer's elements of a contract, all contract elements of MARTINI-SPORTSWEAR shall prevail. 

Invalidity for traders. Should any term of the contract be invalid or unenforceable, such invalid term shall be replaced by a valid term that closest reflects the economic meaning and purpose of the invalid term.

Conclusion of contract

MARTINI-SPORTSWEAR's offer. Offers of MARTINI-SPORTSWEAR to the customer, e.g. customized offers to the customer or non-customized offers such as order forms, catalogues or web shops, are subject to change and non-binding, without exception.

Offer by customer. If the customer places an order based on an offer or unsolicited, without MARTINI-SPORTSWEAR having previously made an offer (e.g. if additional contracts are awarded in current business relationships), traders shall be bound by their orders two weeks and consumers one week after they were received by MARTINI-SPORTSWEAR.

Acceptance of an order by MARTINI-SPORTSWEAR. A contract is therefore concluded only once MARTINI-SPORTSWEAR has accepted the customer’s order. As a matter of principle, MARTINI-SPORTSWEAR shall accept orders in writing, for example by issuing an acknowledgment of order, unless MARTINI-SPORTSWEAR's actions on behalf of the customer and on the basis of the order signify to the customer that MARTINI-SPORTSWEAR accepts the customer's order. MARTINI-SPORTSWEAR shall not be deemed to have accepted an order simply by acknowledging the receipt of an order.

Scope of services, order processing and customer´s duty to cooperate

Place of performance for traders. Place of performance shall be MARTINI-SPORTSWEAR's registered office.

Scope of services. The scope of services to be provided by MARTINI-SPORTSWEAR is defined in MARTINI-SPORTSWEAR’s written specifications evident from all parts of the contract. Information from other sources (such as presentation documents, websites or catalogues) that are not included in the offer do not form part of the specifications. The customer shall examine whether the specifications are complete and correspond to his requirements. After the order was placed, the specifications can be changed only consensually, and such changes can lead to changes in prices, deadlines and target dates.

Professional and skilled services. Unless the written specifications provide otherwise, MARTINI-SPORTSWEAR owes professional execution subject to the date on which the offer was made. Within the framework of the written specifications, MARTINI-SPORTSWEAR has a degree of freedom in connection with the performance of services, provided that there are several possibilities of providing a service in a professional manner.

Interchangeable services. If and when compatible with the objectives of an order, MARTINI-SPORTSWEAR may deviate from the specifications and replace services with other equivalent services.

Third-party services. MARTINI-SPORTSWEAR may perform the services itself or rely on qualified third parties to perform a service (third-party services).

Agreed third-party services. If the provision of a service by a third party was agreed with the customer (agreed third-party service), the contractor is exclusively obliged to provide a third party. In case of agreed third-party services, MARTINI-SPORTSWEAR is therefore only obliged to select another supplier who will provide the service on the basis of a separate agreement with the customer. MARTINI-SPORTSWEAR may commission such third-party service in its own name or in the customer's name and for its own account or for the customer's account. If MARTINI-SPORTSWEAR concludes the contract in its own name and / or for its own account, MARTINI-SPORTSWEAR will do so only in the customer's interest in order to facilitate the contractual procedure and the payment process. The third party is therefore not engaged in the pursuit of interests of MARTINI-SPORTSWEAR and therefore not involved in the interest pursuit programme of MARTINI-SPORTSWEAR and the risk area of MARTINI-SPORTSWEAR. In case of agreed third-party services, MARTINI-SPORTSWEAR is therefore not obliged to provide the specific service. Since the service rendered by MARTINI-SPORTSWEAR consists exclusively in providing a third party, the customer shall be obliged to accede to the contract concluded between MARTINI-SPORTSWEAR and the third party in respect of the agreed third-party services, at the request of MARTINI-SPORTSWEAR, and to hold harmless and indemnify MARTINI-SPORTSWEAR under this legal relationship.

Divisible services. MARTINI-SPORTSWEAR may make partial deliveries of services which are divisible.

Forfeiture. The customer is obliged to timely collect all services ordered from MARTINI-SPORTSWEAR or made available to MARTINI-SPORTSWEAR for processing. If services are not collected in due time, MARTINI-SPORTSWEAR may dispose of the services after three months and bill the costs of disposal to the customer.

Deadlines and target dates. All deadlines and target dates indicated by MARTINI-SPORTSWEAR are non-binding, unless expressly marked as binding.

Inevitable or unforeseeable events. In case of inevitable or unforeseeable events, including but not limited to any delay in the fulfilment of obligations by the customer, and if inevitable or unforeseeable events occur with MARTINI-SPORTSWEAR or its contractors that are unforeseeable for MARTINI-SPORTSWEAR, deadlines will be extended or target dates postponed for as long as such inevitable and unforeseeable event prevails, including the time it takes to take the necessary organizational measures in such a case. MARTINI-SPORTSWEAR shall notify the customer thereof in writing.

Customer’s duty to cooperate. The customer shall promptly provide any information in writing and make available all services to MARTINI-SPORTSWEAR without request and in a format which permits these to be processed, which MARTINI-SPORTSWEAR requires to provide its services. This includes, but is not limited to nominating a contact person for the execution of the contract, making available documents, materials and facilities, coordinating the order details, and accepting (releasing) partial services and services. Whenever the requirement for the customer to provide information or services becomes evident only while MARTINI-SPORTSWEAR provides its services, the customer shall promptly forward any such information. The customer shall independently verify the fitness, accuracy and lawfulness of any information and services provided by him. The customer shall be liable for any damage caused by any omission of, delay in or insufficiency of cooperation by the customer, including but not limited to any extra efforts thereby incurred by MARTINI-SPORTSWEAR. If MARTINI-SPORTSWEAR is unable to execute the services as agreed due to any omission of, delay in or insufficiency of cooperation by the customer, MARTINI-SPORTSWEAR, notwithstanding other rights, may discontinue the service, provide other services for other customers instead, and continue the execution of the services for the customer hereunder not until after the completion of these services, provided that the customer has fulfilled his cooperation duties until then. All target dates and deadlines will thereby be postponed. If MARTINI-SPORTSWEAR is held liable by third parties due to an infringement of laws in connection with information or services provided by the customer, the customer shall also hold harmless and indemnify MARTINI-SPORTSWEAR for and against such claims and support MARTINI-SPORTSWEAR in the defence of third-party claims.

Interferences by the customer. In the event that the customer arbitrarily interferes with the services of MARTINI-SPORTSWEAR or makes changes contrary to the terms of the agreement, the customer shall be liable for any extra effort incurred by MARTINI-SPORTSWEAR, e.g. for reviews, documentation, identification and allocation of defects, and corrective action.

MARTINI-SPORTSWEAR's verification obligations. MARTINI-SPORTSWEAR is only liable that the services provided by MARTINI-SPORTSWEAR are not per se unlawful (e.g. use of a copyrighted work without the author’s consent). However, MARTINI-SPORTSWEAR is not obliged to subject services created by MARTINI-SPORTSWEAR to legal examination as to whether they infringe third-party rights or violate laws due to the customer's intended use of these services (e.g. use of graphics as logo). It shall be the customer's responsibility to perform these legal examinations particularly in terms of administrative law, criminal law, competition law, trademark law, design rights, copyrights, personal rights and data privacy laws or to retain a qualified legal expert to perform these examinations. Whenever MARTINI-SPORTSWEAR points out to the customer, before the customer awards a contract or when new order details become known during a contract, that it is necessary to subject the services to additional legal examination, the customer shall be liable to carry out such legal examination in respect of other rights or to take these risks in the event that MARTINI-SPORTSWEAR was subject to information and verification obligations. MARTINI-SPORTSWEAR shall thus be deemed to have properly provided the service as agreed.

Rights to services. As a matter of general principle, all rights to the agreed services are due to MARTINI-SPORTSWEAR or its licensors. The customer is granted the right to use the services, having paid the agreed compensation in its entirety, in a scope that has been agreed or predefined by the licensors. If no scope was agreed, the customer shall have the non-exclusive right to use the services for its own purposes and in its own business, but not the right to sublicense or transfer the services to third parties (or affiliated companies), with the right to process the services being limited to the legal unavoidable minimum. The customer acknowledges that the services of MARTINI-SPORTSWEAR are often based on works or services of third parties, subject to most different license terms. The customer shall comply with any license terms applicable to services or works of third parties, which form part of MARTINI-SPORTSWEAR’s services and works.

Right to end product. The customer may only use the service in the agreed form as an end product, but is not entitled to receive the basics, work materials, interim results, etc which are necessary to create the services. Unless otherwise agreed, MARTINI-SPORTSWEAR is not obliged to store such basics, work materials, interim results etc. once the work has been completed.

Reference. On all services MARTINI-SPORTSWEAR has created for the customer, MARTINI-SPORTSWEAR may refer to the customer and to another author, if appropriate, and MARTINI-SPORTSWEAR may include information such as the customer’s name and logo, product description, project illustrations and the like in its own promotional materials in order to refer to or indicate the business relationship with the customer, without any compensation being due to the customer; the customer may revoke that right by written notice at any time.

Compensation

Prices. All prices are quoted in Euros, plus statutory value added tax in case of contracts with traders and inclusive of statutory value added tax in case of contracts with consumers, ex MARTINI-SPORTSWEAR's business domicile or branch office.

Additional services. All services provided by MARTINI-SPORTSWEAR that are not expressly covered by the agreed compensation, including but not limited to extra services agreed later on, will be charged separately.

Cost advance. MARTINI-SPORTSWEAR is entitled to request the customer to advance costs in order to cover its own expenditure.

Divisible Services. MARTINI-SPORTSWEAR may make partial deliveries of services which are divisible. 

Unjustified withdrawal by traders. If the customer withdraws from the contract in its entirety or from any part of the contract without MARTINI-SPORTSWEAR having acted with gross negligence or intent, MARTINI-SPORTSWEAR is nevertheless entitled to the agreed compensation. In this case, MARTINI-SPORTSWEAR must merely allow a deduction of expenses saved from not yet having purchased goods or third-party services. The same applies if MARTINI-SPORTSWEAR withdraws from the contract for good cause within the customer’s control.

Payment

Payment date. MARTINI-SPORTSWEAR's invoices are due without deduction from the invoice date. As a matter of principle, services will be provided only until the price has been paid in its entirety.

Payment via Klarna. Invoices of MARTINI-SPORTSWEAR are payable within 14 days of the date of receipt of an invoice.

Payment for online business (except for Klarna). If the Customer chooses other forms of payment offered by Martini, invoices of MARTINI-SPORTSWEAR are payable when the order is placed.

Reservation of title. MARTINI-SPORTSWEAR retains title to the goods supplied until such time as the customer has paid the purchase price in its entirety, including all related costs and interest. In case of default, MARTINI-SPORTSWEAR may enforce its rights of reservation. In this case, the customer agrees that MARTINI-SPORTSWEAR may collect the goods. The enforcement by MARTINI-SPORTSWEAR of its reservation of title does not operate as withdrawal from the contract, unless MARTINI-SPORTSWEAR expressly gives notice of withdrawal. If the customer resells the goods, the customer assigns its claim toward the buyer to MARTINI-SPORTSWEAR for the purpose of security. MARTINI-SPORTSWEAR is entitled to notify the buyer of that assignment.

No set-off and retention. Customers that are traders may not set off their own claims against MARTINI-SPORTSWEAR's claims, even when claims are related, unless the customer's claim was acknowledged by MARTINI-SPORTSWEAR in writing or was established by a court. Customers that are traders shall not have a right of retention.

Late payment. In case of any delay in payment, traders shall pay statutory interest applicable to traders, but at least 9% per year, consumers shall pay interest at a rate of 9% per year. The customer shall pay all costs and expenses incurred in connection with the collection of a claim, including but not limited to collection charges and other necessary costs for appropriate legal pursuit of rights.

Continuing payment default. After MARTINI-SPORTSWEAR has unsuccessfully reminded the customer to pay and granted an at least seven-day grace period for payment, MARTINI-SPORTSWEAR may inform the customer that all services and partial services already provided, including those MARTINI-SPORTSWEAR has provided according to other contracts concluded with the customer, are immediately due for payment and may temporarily discontinue the provision of yet unpaid services until such time as the customer has paid all outstanding compensations in their entirety. After a period of another week has elapsed without the customer having made payment, MARTINI-SPORTSWEAR may withdraw from all contracts and claim compensation for lost profit, in addition to compensation for services already provided. MARTINI-SPORTSWEAR may also discontinue services which the customer has already paid, provided that such discontinuation will generate savings. In this event, MARTINI-SPORTSWEAR may set off its savings against outstanding claims. Notwithstanding the above, MARTINI-SPORTSWEAR may certainly sue the customer also immediately after the expiry of the due date.

Payment by instalment. If and when MARTINI-SPORTSWEAR and the customer have agreed on payment by instalment, the entire compensation is due immediately even if the customer is in arrears with only one instalment.

Liability

Transfer of risk to traders. In case of shipments of goods, the risk will always transfer to the customer as soon as MARTINI-SPORTSWEAR has delivered the goods to the carrier. Goods are always shipped uninsured, unless the customer has instructed MARTINI-SPORTSWEAR to procure insurance at the customer's cost and expense.

Complaints of traders. In case MARTINI-SPORTSWEAR requests acceptance of services on an interim basis or after delivery and start of live operation, the customer shall accept (“release”) the services provided or to be accepted within 8 days in writing, at the latest, or give written notice of defects or damage within 8 days. In case of acceptance on an interim basis, MARTINI-SPORTSWEAR can continue its work not until after the customer has accepted / "released" the services on an interim basis. The customer shall be deemed to have automatically accepted the services if he does not accept services or makes a complaint in due time. Hidden defects or damage arising not until after the expiry of 8 days, yet within time limits within which the customer may enforce guarantee, warranty and compensation claims, shall be reported by the customer also within 8 days after the customer has identified the defect or damage. Any defect or damage, which the customer should be able to identify with the care and diligence of a prudent business man, subject to appropriate controls, shall be notified. Given the special significance of interim acceptance to avoid defects and shortcomings that will affect all other process steps, controls performed in the context of interim acceptance shall be final, detailed and particularly thorough controls. During handover, initial, yet detailed controls shall be performed. The customer's complaint shall describe a defect or damage in detailed and understandable form. The customer is required to indicate the exact times and conditions under which a non-permanent defect or damage occurs. The customer shall allow MARTINI-SPORTSWEAR to take all measures which are necessary to investigate and rectify any defect or damage. Unless the customer notifies defects in due time, the customer shall not be entitled to lodge claims based on warranty and for the compensation of damage as well as claims based on other liability rules, including but not limited to recourse claims.

Warranty. The provisions of the legal warranty system are applicable to consumers and, in addition, any guarantees or customer services promised within the scope of the product description. The right of traders to warranty and to assert recourse claims based on warranty can be exercised six months from delivery. There is no right to enforce any warranty for used goods. The customer as a trader is entitled at MARTINI-SPORTSWEAR's election to improvement or exchange of a service, in case of non-substantial defects, to a price reduction or, in case of substantial defects, also to cancellation of the contract. Any corrective action taken to remedy a defect will neither renew the warranty period nor will such warranty period recommence for the partial service subject to corrective action.

Error, shortfall exceeding fifty percent in case of traders. The customer may not challenge a contract on the grounds of error or shortfall exceeding fifty percent.

Compensation for damage and other claims. The customer cannot seek compensation for damage and assert claims based on other liability provisions, including but not limited to recourse claims, unless these are based on MARTINI-SPORTSWEAR's severe gross negligence or intent in case of contracts with traders, or gross negligence or intent in case of contracts with consumers. These claims of the trader shall forfeit six months after damage and damaging party were identified, and in any event three years after the incriminated action has taken place. This limitation of liability shall not include claims asserted based on personal injury and other mandatory liability rules.

Protection of third parties. For the avoidance of doubt, this contract does not have any protective effect on third parties.

Liability in case of agreed third-party services. The relevant third parties providing the agreed third-party services are not vicarious agents of MARTINI-SPORTSWEAR. MARTINI-SPORTSWEAR is therefore only liable for culpa in eligendo. If the third party is commissioned on recommendation of the customer, MARTINI-SPORTSWEAR shall have no liability at all for the third party.

Burden of proof in case of traders. The burden of proof cannot be shifted to MARTINI-SPORTSWEAR. Especially the presence of a defect on the delivery date, the point in time when a defect was identified, the timeliness of a complaint, and the presence and level of fault must be proven by the customer.

Grace period in case of traders. The customer may lodge claims due to non-fulfilment of the contract as agreed only if the customer has granted MARTINI-SPORTSWEAR a reasonable grace period of at least fourteen days in writing. This applies also if the contract is terminated for good cause.

Trader's right of withdrawal. The customer may withdraw from the contract in writing by sending a registered letter.

Online dispute resolution

Online dispute resolution platform for consumers. The European Union has set up an "Online dispute resolution platform" (ec.europa.eu/odr) dedicated to resolve disputes with consumers. MARTINI-SPORTSWEAR will decide on a case-by-case basis whether to participate in a dispute resolution procedure. Questions in connection with the resolution of disputes can be addressed to MARTINI-SPORTSWEAR at join@MARTINI-SPORTSWEAR.at.

Final Provisions

Applicable law. All legal relationships and circumstances between the customer and MARTINI-SPORTSWEAR shall exclusively be governed by and construed in accordance with Austrian law, to the exclusion of international conflict of law rules.

Mandatory consumer law. If, in contracts with consumers, MARTINI-SPORTSWEAR has oriented its professional and business activities towards the customer's home country, mandatory provisions for the protection of the consumer applicable in the customer's home country shall be applicable in addition.

UN Sales Convention. The provisions of the UN Sales Convention shall not apply.

Jurisdiction in case of disputes with traders. All disputes arising between MARTINI-SPORTSWEAR and the customer shall be referred to the Austrian court having subject-matter jurisdiction for Annaberg. MARTINI-SPORTSWEAR may also sue the customer at MARTINI-SPORTSWEAR's general venue and the customer's general venue.

Published: 27.10.2021