General Terms and Conditions of Business

1. Preamble

“Knickery”, (hereinafter referred to as “Knickery”), provides the opportunity for merchants (hereinafter referred to as “SELLERS”) to offer and sell underwear on the online sales platform: https://www.Knickery.com/ (hereinafter referred to as “PLATTFORM”). The SELLERS have the opportunity to present their goods to the customers (hereinafter “END CUSTOMER”) online on the PLATTFORM.

It is clarified that Knickery is neither a contractual partner of the SELLER nor of the END CUSTOMER in relation to the sale of goods. Knickery is also not an intermediary. Knickery only provides the PLATFORM on a technical level. Knickery generates revenue by paying the SELLER for the positioning on the PLATFORM. The delivery and billing of the goods is the sole responsibility of the SELLER.

These General Terms and Conditions (hereinafter referred to as “GTC”) are addressed to companies within the meaning of § 1 para 1 no. 1 KSchG (or Art 2 no. 2 of the Directive EU 2011/83/EU), which wish to use the PLATTFORM commercially, but also to consumers within the meaning of § 1 para 1 no. 2 KSchG.

For the purpose of better readability, no gender-specific differentiation is made. This is done without any intention of discrimination.

2. Scope

These GTC regulate the contractual relationship between Knickery on the one hand and the SELLER on the other hand.

These GTC supersede any GTC of the SELLER.

It is clarified that Knickery has no contractual relationship with the END CUSTOMER. Knickery shall not be liable for any failure of performance in the relationship between the SELLER and the END CUSTOMER.

The language of business, contract and order is German.

3. Conditions of Use

The SELLER shall treat its data confidentially. If the SELLER suspects misuse by third parties, he has to inform Knickery immediately.

The SELLER shall refrain from any action that could endanger or impair the technical provision of the PLATFORM (including cyber attacks). Such behavior will be legally prosecuted.

It is the SELLER’s responsibility to provide the necessary electronic infrastructure (in particular e-mail account as well as hardware and software infrastructure) for the use of the PLATFORM. Knickery shall not be obliged to provide information and advice in this respect.

It is the SELLER’s responsibility to use suitable passwords and to keep them safe.

4. Offer, Conclusion of Contract

By clicking the button “Use now for a fee” and entering the required data in the input mask, the SELLER makes a binding offer to conclude a contract with Knickery. Knickery is not obliged to accept this offer.

Knickery shall confirm receipt of an offer to the SELLER by sending an e-mail to the address provided by the SELLER (“Order Confirmation”). This e-mail does not constitute an acceptance of the offer by Knickery.

Knickery may accept offers by confirming the acquisition of the offer in another e-mail (“Order Confirmation”) or implicitly by providing access to the PLATFORM.

5. Blocking of Content and Refusal of Registration

Knickery shall be entitled to refuse the uploading of Advertisements or to remove them if Knickery becomes aware of facts or circumstances from which an illegal activity or information of the SELLER becomes obvious.

Knickery is also entitled to block a SELLER if the SELLER acts contrary to the contract despite a reminder or if there is a reasonable suspicion of misuse of the PLATFORM. Knickery will inform the SELLER immediately about the blocking and the reasons that led to the blocking (cf. Art 4 “P2B Regulation”).

6. Requirements for advertisements

The SELLER undertakes that when uploading information on the PLATFORM he will observe all legal regulations, in particular copyright and data protection law.

It is the SELLER’s responsibility to ensure that persons photographed in the images agree to the publication of the photograph.

Pictures are to be uploaded as .jgp or .png (RGB) on the entire PLATFORM.

7. Rankings (Art 5 Abs 2 P2B-VO)

The placement of advertisements on PLATTFORM is based on the following criteria: Most recent advertisements are displayed at the top.

8. Right of withdrawal according to FAGG

This right of withdrawal applies only to consumers.

The SELLER has the right to withdraw his contractual declaration or an already concluded contract within fourteen days without giving reasons, if the contract was concluded electronically. The revocation period is fourteen days from the day of the conclusion of the contract.

In order to exercise the right of withdrawal, the SELLER must inform Knickery of the decision to withdraw from this contract by means of a clear statement (e.g. a letter or e-mail sent by post). For this purpose, the SELLER may use the model withdrawal form, which is listed in Annex I B of the Distance and Off-Site Transactions Act (https://www.ris.bka.gv.at/GeltendeFassung.wxe?Abfrage=Bundesnormen&Gesetzesnummer=20008847) and can also be found on Knickery’s website.

A notice of revocation shall be sent to the following address:

“Knickery”,

Email: office@Knickery.com

In order to comply with the withdrawal period, it is sufficient that the SELLER sends the notification of exercising the right of withdrawal before the expiry of the withdrawal period. If this option is used, the SELLER will be sent a confirmation of receipt of such revocation. If the SELLER revokes the contractual statement or a contract that has already been concluded, Knickery shall repay all payments it has already received from the SELLER, including delivery costs (with the exception of additional costs resulting from the SELLER choosing a type of delivery other than the favorable standard delivery offered by the Contractor) without undue delay and at the latest within fourteen days from the day on which Knickery received the notification of revocation of this contract. For the repayment, Knickery shall use the same means of payment that the SELLER used for the original transaction.

9. Payment modalities

The amount of the payment depends on the model selected by the SELLER.

The payment methods accepted by Knickery are listed in the webshop.

The fee for the use of the PLATFORM is automatically debited every month on the day of the conclusion of the contract. Here is an example for better illustration. The contract is concluded on 15.5.2021. The payment obligation starts on 15.5.2021. From then on, the fee will always be debited on the 15th of the respective month until the end of the contract.

The fee is paid monthly in advance. In case of a cancellation no aliquot repayment will be made. However, the collection procedure will be stopped immediately.

If there is not enough money available on the SELLER’s account on that day, the use of the PLATFORM will be automatically – and without warning – blocked, until the next payment is received. Knickery shall not be liable for any damage incurred by the SELLER as a result.

It is expressly pointed out that Knickery does not have to inform the SELLER separately about the automatic extension of the contractual relationship. It is the SELLER’s responsibility to observe the notice period mentioned in clause 20.

The prices listed on the Knickery website are in EUR. In case of doubt, the sales tax is not included.

The amounts stated at the time of the order shall apply.

If the SELLER selects the “Unlimited” option, there is a one-time fee to pay.

Knickery is entitled to adjust all prices to the current consumer price index once a year on 1.1. or 1.7. The consumer price index at the time of the conclusion of the contract, which is published on the website of Statistics Austria, shall be the reference.

10. Permission to use the work

Knickery grants the SELLER a non-exclusive license to use the PLATFORM, limited in time, content and location for the purposes of the business relationship (in the sense of § 24 para 1 first sentence UrhG).

Identification marks of the PLATFORM, in particular copyright notices, trademarks, serial numbers or similar may not be removed, changed or made unrecognizable.

11. Obligation to make available

Knickery is obliged to make the PLATFORM available to the SELLER for the duration of the contractual relationship and to take care of the maintenance of the PLATFORM.

However, Knickery reserves the right to discontinue the operation of the PLATFORM after reasonable notice.

12. Obligation to cooperate

The PURCHASER will cooperate to the extent necessary for the use of the PLATFORM. Any failure of the SELLER in this respect shall not be at the expense of Knickery and shall in particular not reduce the SELLER’s claims for payment.

Disruptions of Performance
If Knickery is temporarily unable to provide the PLATFORM for reasons beyond its control (e.g. power failure, cyber attacks, force majeure, problems with 3rd party software, server maintenance), the SELLER’s (full) payment obligations shall remain unaffected.

13. Service disruptions

If the SELLER is temporarily unable to provide the PLATFORM or is not able to restore all data for reasons beyond its control (e.g. power failure, cyber attacks, force majeure, problems with 3rd party software, server maintenance), the SELLER’s (full) payment obligations shall remain unaffected.

14. Liability for damages and warranty

Knickery’s liability for slight negligence is excluded. The liability is generally limited to twelve times the amount of the monthly fee payable by the SELLER. In case of the option “Unlimited” the liability amount is limited with the one-time fee.

The liability of Knickery for loss of profit of the SELLER is excluded.

This limitation of liability shall not apply with regard to personal injury and with regard to the Product Liability Act and in case of intentional damage.

Knickery shall not be liable if the PLATFORM cannot be provided for a short period of time due to a temporary server failure and the SELLER suffers damage as a result, provided that the SELLER is an entrepreneur.

Knickery shall not be liable for any content (especially photos) published by the SELLER on the PLATFORM. The SELLER shall be solely responsible for the legality or accuracy of the content posted by the SELLER. In particular, the SELLER shall ensure that no third party rights exist to the published content. Knickery is under no obligation to monitor the contents published by the SELLER or to investigate whether any illegal activity is taking place (§ 18 para 1 ECG).

However, should the SELLER become aware of any illegal activity on the PLATFORM, Knickery is requested to be notified immediately.

15. Indemnity and hold harmless

Should Knickery be held liable by a third party due to the SELLER’s unlawful use of the PLATFORM, the SELLER agrees to indemnify and hold Knickery harmless.

16. Involvement of subcontractors

Knickery may use subcontractors (vicarious agents according to § 1313a ABGB) for the fulfillment of its obligations under this contract.

17. Changes to the General Terms and Conditions

Knickery shall be entitled to amend these Terms and Conditions at any time. Knickery shall inform the SELLER of such amendments by sending the amended Terms and Conditions to the e-mail address last notified to the SELLER. The SELLER has the right to object to this change. If no objection is made by the SELLER within 21 days from the sending of this amendment, an implied consent to the amendment of the General Terms and Conditions shall be assumed, provided that the SELLER is a company. Unilateral and factually unjustified changes to the General Terms and Conditions cannot be implemented in this way. This shall not affect any price adjustment within the meaning of clause 9.

18. Data protection and protection of business and trade secrets

The transfer of data and information to the respective required business partners is permitted to the extent necessary for the fulfillment of the contractual relationship (iSd Art 6 para 1 lit b DSGVO). Otherwise, Knickery and the SELLER shall be mutually obliged to maintain secrecy about the circumstances and data related to the other party of which they become aware due to the present business relationship and in particular to observe data secrecy. These obligations regarding data and business secrecy shall also apply beyond the contractual relationship. Knickery and the SELLER further undertake to instruct and instruct their employees and vicarious agents in this sense.

Knickery draws attention to the fact that data of the SELLER may be processed on the basis of legitimate interest in order to send advertising to the SELLER (Art 6 para 1 lit f DSGVO). The SELLER may object to this form of data processing at any time (Art 21 para 2 DSGVO).

More detailed information on the processing of personal data can be found in the privacy policy.

19. Blocking access to the PLATFORM (Art 3 Z 1 lit c P2B-VO)

If Knickery has reasonable grounds to believe that the SELLER, or one of its END CUSTOMERS, is using the PLATFORM in an unlawful manner, Knickery is entitled to block access to the PLATFORM immediately and without prior notice. This shall not prejudice the possibility of further legal remedies. In case a END CUSTOMER suffers any damage due to the blocking of the contractual relationship, Knickery cannot be held liable for it, unless this blocking was obviously unfounded.

20. Duration of the contractual relationship

The contractual relationship with the SELLER is concluded for an indefinite period. It can be terminated at any time and without notice (see point 9 regarding the payment date).
The right to extraordinary termination remains unaffected.

Knickery is under no obligation to store data obtained via the PLATFORM beyond the contractual relationship, except for legal storage obligations (in the sense of § 212 UGB or §132 BAO).

21. Jurisdiction and Applicable Law

This contractual relationship shall be governed by and construed in accordance with Austrian law. However, this choice of law may not result in the consumer being deprived of the protection granted to him by the mandatory provisions of his country of residence (cf. Art 6 (2) Rome I Regulation).

The exclusive place of jurisdiction is the competent court in Vienna, Austria.

If the SELLER is a consumer and has his domicile or habitual residence in Austria or is employed in Austria, the SELLER may, in derogation thereof, only be sued before those courts in whose jurisdiction his domicile, habitual residence or place of employment is located.

The place of performance shall be the registered office of Knickery.

Attention is drawn to the possibility of dispute resolution via an online dispute resolution platform (Art 14 para 1 S 1 ODR Regulation) (https://ec.europa.eu/consumers/odr/main/index.cfm?event=main.home2.show&lng=DE) and national consumer arbitration boards. Knickery is willing to participate in a dispute resolution procedure before a consumer arbitration board.

In order to avoid a court dispute, Knickery offers to settle disputes before an impartial and independent mediator (Art 10 P2B-VO).

22. Other

If any part of these terms and conditions is invalid, this shall not affect the validity of the remaining terms and conditions. The ineffective condition shall be replaced by such an effective condition, which economically comes as close as possible to the intention of both contracting parties, which is recognizable from the agreement.

Amendments to these terms and conditions as well as supplements to these terms and conditions shall only be valid if they have been agreed and signed in writing. This shall not affect the provisions set forth in Clauses 9 (“Price Adjustment”) and 17 (“Amendment of the General Terms and Conditions”).

Knickery recommends the SELLER to save these GTC permanently.

(April 2021)

RIS – Gewerbeordnung 1994 – Bundesrecht consolidated, version of 11.12.2020 (bka.gv.at)

Declaration of revocation according to FAGG