Terms and Conditions

 

MARTINI GROUP AMERICA INC.’s


General Terms and Conditions

1.    General
These General Terms and Conditions of Sale (these “Terms”) govern the sale and delivery of all products (the “Products”), and all transactions incidental there-to, by or on behalf of MARTINI GROUP AMERICA INC. (“Martini”) to any of its customers (“Custom-er”).

No other terms or conditions shall be of any force or effect unless otherwise specifically agreed upon by Martini in a writing duly executed by Martini. Any additional or different terms or conditions contained in Customer's Order (as defined below) or response to Martini’s confirmation shall be deemed objected to by Martini and shall not be binding on Martini. No general terms and conditions of Customer shall at any time form a part of any agreement between Customer and Martini, even if such terms and conditions are not expressly rejected by Martini.

These Terms supersede any and all prior oral quota-tions, communications, agreements or understandings of the parties in respect of the sale and delivery of the Products and shall supersede any and all other terms and conditions contained in any Order (as de-fined below) placed by Customer or otherwise com-municated by Customer.

Martini’s failure to object to terms and conditions communicated by Customer shall in no event be con-strued as an acceptance of any other terms and con-ditions. Any communication or conduct of Customer which confirms an agreement for the delivery of Products by Martini, as well as acceptance in whole or in part by Customer of any delivery of Products from Martini, shall be construed as Customer’s ac-ceptance of these Terms.

If Customer finds any provision in these Terms not acceptable, Customer must so notify Martini immedi-ately and must reject the Products delivered under these Terms. Deviations from these Terms require Martini’s prior written approval.

Martini jewelry is not intended for children under the age of twelve.

All content on Martini’s websites, including but not limited to articles, photos, moving images and graphics, belongs to and is administrated by Martini.

The trademarks or trade dress of Martini and our af-filiates may not be used without our written permis-sion. Trademarks or trade dress include the Martini name and logo, and other graphics, logos, page head-ers, button icons, scripts, and service names of Mar-tini products, services, and programs, and those of our affiliates.

2.    Offers, Orders and Confirmation
Martini shall sell and deliver to Customer, and Cus-tomer shall purchase and accept from Martini, the Products described in any order, agreement or quota-tion, or any combination thereof (an “Order”).

All offers made by Martini are revocable at any time and subject to change without prior notice to Cus-tomer.  Martini may refuse an Order for any or no reason. No Order is binding upon Martini until the earlier to occur of Martini’s acceptance of the Order in writing or the delivery of the Products to Customer (a “Confirmed Order”).  Notwithstanding any prior confirmation of an Order by Martini, Martini shall have no obligation to deliver Products to Customer or otherwise perform any of its obligations set forth in a Confirmed Order or herein if Customer is in breach of any of its obligations hereunder or such Con-firmed Order.

In the event Customer cancels or modifies any Con-firmed Order, Customer shall bear all of Martini’s costs and expenses associated with such cancellation or modification, including but not limited to cost of raw materials for such Confirmed Order, labor costs and storage expenses, and, in the event of a modifi-cation of a Confirmed Order by Customer, Martini shall be free to accept or reject such modification without any further obligation to Customer whatso-ever.

Each Confirmed Order shall be considered a separate agreement between the parties to purchase and sell Products, and any failure to deliver Products under any Confirmed Order shall have no consequences for other deliveries.

3.    Prices
The price of the Products shall be as published in Martinis’ current price list in effect at the time of the Order unless otherwise quoted in writing by Martini. A price list is available on request. Unless otherwise agreed by Martini in writing, all prices set forth in such price list are subject to change without prior notice to Customer.

The price of Products shall not include packaging, sales or use tax or any other similar applicable feder-al, state or foreign taxes, duties, levies or charges in any jurisdiction in connection with the sale or deliver of the Products (“Taxes”). Such Taxes shall be paya-ble by Customer and, if Martini is responsible for the collection thereof, such Taxes shall either be added to the price invoiced or be separately invoiced by Martini to Customer.  Should any unforeseeable in-creases in Martini’s cost of materials or labor occur after the date of any Confirmed Order, Martini shall, in its sole discretion, be entitled to increase the agreed prices accordingly.

4.    Payment Terms
Unless otherwise agreed in writing by Martini, the purchase price for the Products to be delivered under a Confirmed Order and all other amounts due in con-nection therewith shall be due and payable in US dollars within thirty (30) days. In no event shall any loss, damage, injury or destruction, force majeure events or any other event beyond Martini’s control release Customer from its obligation to make the payments required herein.  Payment of all amounts due hereunder shall be made by check, wire transfer, or credit card in the manner set forth on Martini’s invoice. Martini reserves the right to require advance payment from Customer prior to the delivery of the Products set forth in a Confirmed Order.

Time is of the essence for the payment of all amounts due to Martini under any Confirmed Order.  If Customer fails to make payment of any amount when due, Customer shall pay interest to Martini at the rate of one and one-half percent (1.5%) per month or such lesser amount as may be permitted by applicable law starting from the due date until pay-ment of such amount in full.  If Customer fails to comply with these Terms or the terms of any agree-ment between Martini and Customer, or if Customer becomes insolvent, all balances then due and owing to Martini shall become due immediately, notwith-standing any agreed-upon payment periods.  All costs and expenses incurred by Martini with respect to the collection of overdue payments (including, without limitation, reasonable attorney’s fees, expert fees, and other expenses of litigation) shall be borne by Customer.  Every payment by Customer shall first be applied to pay for Martini’s cost of collection, then interest owed by Customer, and then to the oldest outstanding claim.

If Martini extends credit to Customer for the pur-chase price for any Products or any other amounts due to Martini, Customer hereby grants to Martini as security for the timely payment and performance of all Customer’s payment obligations to Martini, a first priority security interest (the “Security Interest”) in all Products heretofore or in the future delivered to Cus-tomer for as long as such Products shall not have been sold by Customer in the ordinary course of business (the “Collateral”). Martini shall be entitled to file any and all financing, continuation or similar statements under the Uniform Commercial Code in any jurisdiction, and take any and all other action necessary or desirable, in Martini’s sole and absolute discretion, to perfect its security interest in the Collat-eral and to establish, continue, preserve and protect Martini’s security interest in the Collateral. Customer agrees to take any and all actions and provide Martini with all information necessary to enable Martini to perfect and enforce this security interest in all juris-dictions and vis-à-vis any of Customer’s creditors. This security interest shall remain in force until pay-ment in full of the entire purchase price for such Products and any other amounts due to Martini by Customer.  Martini may, without notice, change or withdraw extensions of credit at any time.

5.    Delivery and Acceptance
Unless otherwise agreed in writing by Martini, all deliveries of Products shall be made EX WORKS Martini’s warehouse at 25 Trefoil Drive, Trumbull, CT 06611(per Incoterms 2010) and title to and risk of loss for the Products shall pass to Customer upon delivery thereof to Customer’s common carrier.  If Customer requests that Martini organize transporta-tion on Customer’s behalf, Martini or its agent may select, without any liability to Customer, any com-mercial air, ship, motor or rail carrier or any combi-nation thereof for the transportation of the Products and will notify Customer thereof in the Order Con-firmation.  Martini shall not be responsible for any acts or omissions of any such carrier.

Any delivery times or dates communicated by or on behalf of Martini are estimates and shall not be bind-ing on Martini. Martini may make partial delivery of Products to be delivered under any Confirmed Order and invoice Customer separately for such partial de-liveries. In no event shall Martini be liable for any delay in delivery, and no delay in delivery of any Products shall relieve Customer of its obligation to accept delivery thereof and make payment of any amounts due in accordance with these Terms. 

Customer’s failure to accept delivery of any Products pursuant to a Confirmed Order shall not release or excuse Customer from its obligation to timely pay all amounts due in connection with such Confirmed Order.  If Customer rejects or revokes acceptance of Products or fails to pay any amounts when due, Mar-tini, in its sole and absolute discretion, may extend the period of delivery by such period as Martini may deem reasonable, or withhold or cancel delivery of any Products, or cancel any or all Confirmed Orders without any further obligations to Customer whatso-ever.  In such event Customer shall be responsible for any and all costs and expenses incurred or dam-ages or losses suffered by Martini in connection with any such delay notwithstanding any action or inac-tion by Martini with regard to such delay.

6.    Examination and Conformity to Order
Promptly upon receipt of any Products, Customer shall conduct a full and complete inspection of such Products as to any defects and to confirm compliance with all requirements of the applicable Confirmed Order.  Customer shall notify Martini in writing of any apparent defects or non-compliance of such Products with the applicable Confirmed Order that Customer has or could reasonably have discovered during such inspection within three (3) days from the date of receipt of such Products, and Customer shall notify Martini in writing within five (5) days of the date on which Customer shall first have become aware of any hidden defect or non-compliance which could not reasonably have been discovered during Customer’s initial inspection of the Products. 

If Customer fails to timely notify Martini of any de-fects or other non-compliance of any Products deliv-ered or Customer uses, destroys or modifies any Products that Customer knows or should have known to be defective or non-compliant without Martini’s prior written consent, Customer shall be deemed to have unconditionally accepted such Products and waived all of its claims for breach of warranty or otherwise in respect of such Products.

Products that Martini consents or directs Customer in writing to be returned shall be returned to Martini at Customer’s risk to the destination directed by Martini.

7.    Limited Warranty
With respect to the Products, Martini warrants to Cus-tomer that the Products will be free of defects in ma-terial and workmanship and conform with the re-quirements set forth in the applicable Confirmed Or-der for a period of 24 months from the date of deliv-ery (the “Warranty Period”); provided that the Prod-ucts are used for the purpose intended and are main-tained, handled, and serviced in accordance with Martini’s written instructions and manuals and are not altered, modified or repaired unless such alteration, modification or repair shall have been authorized by Martini  in writing (the “Limited Warranty”). 

Except for the Limited Warranty, Martini makes no other warranties with respect to the Products, and no person is authorized to make any warran-ties on behalf of Martini that are inconsistent with such Limited Warranty.  ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IM-PLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT, ARE HEREBY EX-PRESSLY EXCLUDED AND DISCLAIMED.

If any Product defect entitles Customer to a claim under the Limited Warranty, Martini will, at its sole option, repair or replace the defective Product. Such repair or replacement shall be the sole liability of Martini and the sole remedy of Customer with respect to such defective Product.  In no event shall any war-ranty claims be made after expiration of the Warranty Period.

All warranty claims shall be void and Martini shall have no responsibility to repair or replace Products damaged as a result of (a) inadequate use, storage, handling, or servicing, or unauthorized alteration, modification or repair of Products (including without limitation, the use, storage, handling, or servicing of Products contrary to written instructions and/or rec-ommendations of Martini), or (b) acts or omissions of Customer or third parties following delivery of the Product, acts of nature or government, abuse, or oth-er events beyond Martini’s control.

Unless expressly warranted in writing in any Con-firmed Order, Martini makes no warranty that the Products comply with applicable law, regulations or specifications in any jurisdiction in which the Prod-ucts may be sold or marketed.  Any governmental or other approvals necessary in connection with the sale, marketing, distribution or use of the Products shall be Customer’s sole responsibility.

Customer shall not be authorized to make any war-ranties that are inconsistent with the foregoing war-ranty, and any and all such warranties shall in no event be binding on Martini.

8.    Limitation of Liability
In no event shall Martini be liable to Customer for any indirect, incidental, punitive, special or conse-quential damages, including but not limited to, damages for loss of profits, revenue, goodwill or use, whether in an action in contract, tort, strict liability, or imposed by statute, or otherwise, even if Customer was advised of the possibility of such damages.

Martini shall not be liable for, and Customer assumes responsibility and shall indemnify and hold Martini harmless for, any and all claims, including without limitation claims for personal injury or property dam-ages, resulting from the improper use, operation, or maintenance or unauthorized alteration, modification or repair of the Products, or Customer’s failure to properly communicate Martini’s instructions and warnings to users of the Products.

Notwithstanding any of the terms contained herein, Martini’s liability for any claim – whether based up-on contract, tort, equity, negligence or any other legal concept – shall in no event exceed the purchase price paid by Customer for the Products giving rise to such claim.  Customer hereby acknowledges and agrees that the provisions of these Terms fairly allocate the risks between Martini and Customer, that Martini’s pricing reflects this allocation of risk, and but for this allocation and limitation of liability, Martini would not have entered into an agreement with Customer to sell Products to Customer.

In jurisdictions that limit the or preclude limitations or exclusion of remedies, damages, or liability, such as liability for gross negligence or willful misconduct or do not allow implied warranties to be excluded, the limitation or exclusion of warranties, remedies, dam-ages or liability set forth in these Terms are intended to apply to the maximum extent permitted by appli-cable law, and these Terms shall be deemed amended to comply with such limitations or exclusions.  Cus-tomer may also have other rights that vary by state, country or other jurisdiction. This warranty extends only to Customer and not to any subsequent user, other customers or transferee. 

9.    Loaned Materials
Martini may, in its sole discretion, make available to Customer certain materials for use by Customer such as advertising and sales materials, displays, display cases, decorations and samples (the “Loaned Materi-als”). Within fourteen (14) days after Martini’s re-quest, Customer shall, at its sole expense, return to Martini the Loaned Materials properly packed and in the same condition as received, except for ordinary wear and tear.

In the event Customer fails to return the Loaned Ma-terials in the condition as set forth in this Section 9, Customer shall pay to Martini the full purchase price of any missing or damaged Loaned Materials.  In case of a delay in the return of the Loaned Materials, Martini may, at its sole discretion and at Customer’s sole expense, arrange for shipping the Loaned Mate-rials from Customer’s premises. 

Martini shall at all times retain title to and ownership of the Loaned Materials. Customer assumes the risk of loss, theft or damage to the Loaned Materials upon delivery of the Loaned Materials to Customer. Cus-tomer shall pay to Martini the full purchase price of any Loaned Material that is lost, stolen or damaged after such Loaned Material is delivered to Customer.

10.    Intellectual Property
Martini hereby grants to Customer a non-exclusive license to use the trade names and Trademarks in-cluding trade dress used by Martini in connection with the Products from time to time (collectively, the “Trademarks”) for the sole purpose of marketing and selling the Products purchased by Customer under a Confirmed Order.  Customer shall not assign, subli-cense, make available, or otherwise transfer or dis-close any right to use, develop, or otherwise enjoy the Trademarks without the prior written consent of Martini.

Customer shall use the Trademarks only in accord-ance with Martini’s instructions from time to time.  Without limiting the generality of the foregoing, none of the Products, Loaned Materials, Product labels or packaging, other promotional materials, background story or Trademarks shall be altered, copied or imi-tated in any way by Customer, nor shall Customer permit any third party to alter in any way, any of the Products, Loaned Materials, Product labels or packag-ing, other promotional materials, background story or Trademarks.

All representations of the Trademarks which Cus-tomer intends to use in connection with the marketing and sale of the Products that have not been provided by Martini shall require Martini’s written approval prior to their use.

Martini, or one of its affiliates, is the owner of the Trademarks, the design of the Products, the Loaned Materials, and all copyrights and related rights, logos,  slogans, trade secrets, know-how, business names, [patents] and other intellectual property rights with respect to the Products (the “Martini IP”) and all the goodwill attached therewith now or in the future.  Nothing contained in these Terms or any Confirmed Order shall be deemed to give Customer or any other party any right, title or interest in the Martini IP, other than Customer’s right to use the Trademarks in ac-cordance with these Terms.  Customer hereby recog-nizes Martini’s absolute right, title and interest in all Martini IP. All goodwill created by Customer’s ef-forts to sell, market or promote the Products shall inure for the sole benefit of Martini, and Customer shall not be entitled to any compensation for such efforts whatsoever.

Customer shall not at any time do or suffer to be done anything which will in any way adversely affect any of the Martini IP rights, or which will directly or indirectly adversely affect the goodwill associated with the Trademarks.

Customer agrees to notify Martini in writing as soon as practicable of (i) any infringement or threatened infringement of any Martini IP, including without limitation the Trademarks, any copyrights and de-signs which shall come to its attention, and (ii) of any litigation or threatened litigation relating to any Marti-ni IP, including without limitation the Trademarks.

Customer shall display and decorate the Products at all times according to Martini’s instructions. 

Upon the sale of all the Products by Customer, or anytime at the request of Martini, Customer shall, at the Customer’s sole expense, immediately return all Loaned Materials and other items bearing the Trade-marks (including but not limited to catalogs, price lists, display and merchandising material to Martini.  Customer shall then immediately cease to use the Trademarks without further notice by Martini.

11.    Miscellaneous
If any provision contained in these Terms or any Confirmed Order is held by final judgment of a court of competent jurisdiction to be invalid, illegal or un-enforceable, such invalid, illegal or unenforceable provision shall be severed from the remainder of these Terms or such Confirmed Order, and the re-mainder of these Terms or such Confirmed Order shall be enforced. In addition, the invalid, illegal or unenforceable provision shall be deemed to be auto-matically modified, and, as so modified, to be in-cluded in these Terms, such modification being made to the minimum extent necessary to render such pro-vision valid, legal and enforceable.

Martini will not be responsible for any failure or de-lay in its performance under these Terms or any agreement due to causes beyond its reasonable con-trol, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, acts of terror, riot, acts of God or governmental action.

In the event of a violation or threatened violation of Martini’s proprietary rights, Martini shall have the right, in addition to such other remedies as may be available pursuant to law or these Terms, to tempo-rary or permanent injunctive relief enjoining such act or threatened act. The parties acknowledge and agree that legal remedies for such violations or threatened violations are inadequate and that Martini would suf-fer irreparable harm.

Customer may not assign its Order or any right or interest therein or any other obligation arising here-under without Martini’s prior written consent.

Martini’s waiver of any breach or violation of these Terms or the provisions of any Confirmed Order by Customer shall not be construed as a waiver of any other present or future breach or breaches by Cus-tomer.

Notices by a party regarding the exercise of rights and obligations under a Confirmed Order must be signed by authorized representatives of such Party, and delivered via courier, mail or e-mail to the other Party’s address indicated in the Confirmed Order, provided that a notice by e-mail shall only be validly given if receipt thereof is acknowledged in writing by the recipient.

12.    Entire Agreement; Conflicts. 
These Terms, including the applicable Confirmed Order, constitute the entire and exclusive agreement of the parties regarding the subject matter hereof and supersedes any and all prior or contemporaneous agreements, communications, and understandings (both written and oral) regarding such subject matter.  In the event of a conflict between the provisions of these Terms and the provisions of a Confirmed Or-der, the provisions of the Confirmed Order will gov-ern and control.  These Terms may only be modified or any rights under it waived by a written document executed by both parties.

13.    Applicable Law and Jurisdiction
These Terms and the Confirmed Orders shall be gov-erned by and construed in accordance with the laws of the State of New York without giving effect to the UN Convention on Contracts for the International Sale of Goods of 1980 or any choice or conflict of law provision or rule that would defer to or cause the application of the substantive laws of any jurisdiction other than New York.
Any dispute, controversy or claim arising out of or relating to these Terms and any Confirmed Order, including but not limited to the execution, perfor-mance or termination thereof or to any issue of liabil-ity arising out of the performance of these Terms or any Confirmed Order, which the parties have not been able to settle amicably shall be submitted to the exclusive jurisdiction of the state or federal courts with jurisdiction in the State of New York, County of New York unless otherwise agreed to by the parties thereto.  Each party hereby waives any and all claims, pleas or defenses (including without limita-tion a plea for forum non conveniens) that would permit such party to seek the jurisdiction of any courts or arbitration tribunals other than those set forth in the preceding sentence.
EACH PARTY HEREBY WAIVES, TO THE FULL-EST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JU-RY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THESE TERMS.