GENERAL TERMS AND CONDITIONS OF

CONTRACT OF TIROLER GLASHÜTTE GMBH 2021 (“TG”).

1.Scope of application

All provisions of goods and services by Tiroler Glashütte GmbH (“TG”) to or for the benefit of each customer (the “Customer”) of TG shall be subject to the following General Terms and Conditions of Contract (the “T&C”), unless otherwise expressly agreed upon in writing duly signed by TG. Any and all terms and conditions of Customer, whether memorialized via written statement, purchase order, or otherwise, shall not be binding upon TG unless such terms and conditions are duly acknowledged and expressly agreed to in writing and signed by TG. By ordering products sold by TG (the “Products”), Customer will be deemed to have acknowledged and agreed to, and further be bound by these T&C, regardless of whether Customer signs or otherwise acknowledges its agreement to be bound by these T&C in writing or otherwise. For the avoidance of doubt, the acceptance of orders or performance of services by TG may not be regarded as the grant of any entitlement to future fulfilment of orders or provision of services by TG, and nothing in these T&C shall be construed as creating a relationship of exclusivity between Customer and TG.

2.Orders

2.1. All orders by Customer (the “Orders”, or each an “Order”) shall become legally effective and binding on Customer upon written acceptance by TG of each such Order (an “Order Confirmation”) or, in the absence of such Order Confirmation, by delivery of the Products comprising such Order to Customer. Customer may modify any Order at any time before TG‘s delivery to Cus-tomer of the Order Confirmation for such Order, but under no circumstances shall Customer be permitted to modify any Order more than five (5) calendar days after placing such Order. TG will communicate expected lead-times of Products in the respective Order Confirmation (in this context see Clause 6.4).

2.2. Once an Order is confirmed by TG or delivered to Customer, such Order may not be cancelled by Customer except with the prior consent in writing of TG, in which case Customer shall indemnify TG against all losses (including indirect and consequential losses) under or in connection with such cancellation.

2.3. TG reserves the right to (i) reject any Order at any time without giving any reasons, (ii) accept Orders only with respect to amounts that from experience correspond to usual quantities ordered by companies of a comparable size/type like Customer‘s company and/or to (iii) terminate any framework agreement possibly existing at any time with immediate effect without giving any reasons.

2.4. Customer shall comply on all its Orders with all guidelines communicated by TG regarding minimum Order values and minimum Product Orders, including those set out in these T&C.

2.5. Special Orders: Orders for any Products not featured in the applicable Price Books (“Special Orders”) require a 50% deposit. Special Orders can be combined with any other Orders to meet Order minimums. Quantities of Special Orders can only be ordered in full master packs. No returns or cancellations on Special Orders are permitted.

2.6. Value Packs: Any preferential conditions on which Customers may purchase packs containing free Products (“Value Packs”) must – to the extent legally permissible – be passed on to the end-consumer in at least the same amount. The Customer may not unpack Value Packs and may not sell any merchandise included in Value Packs individually.

2.7. Limited Editions: TG reserves the right to offer Products marked as “Limited Edition” in a certain amount and for a certain time period and under certain allocation criteria to Customer.

2.8. Glassware marked as “On-Premise Glass Collection/Glassware” is reserved for the hospitality industry only, and is not intended for resale, the retail trade and/or for end-consumers.

2.9. Customer acknowledges that the packaging and labeling of the Products as designed and implemented by TG is critical to maintain the Brand (as defined in Clause 3.2.) recognition and image of the respective Brands. Without the prior written consent of TG, Customer shall not modify or remove or otherwise make illegible or unreadable any packaging, labeling, markings or other items, such as promotional materials or instructions, howsoever affixed to the Products themselves or their packaging or accompanying the Products as shipped to Customer. The Products shall not be unpacked from their original packaging as shipped to Customer or be repacked by Customer but shall be sold by Customer in its original packaging, unless first expressly authorized by TG in writing. In the event that TG duly grants Customer the right to repackage or unpackage Products (collectively, “Authorized Packaging Changes”), Customer shall ensure that the repackaged or unpackaged Products and the packaging used by Customer (the “Customer Packaging”) comply with all applicable laws, rules, and regulations, including but not limited to those laws, rules, and regulations that concern such Products‘ and Customer Packagings‘ labeling, packaging, marketing, storage, distribution, and sale, and Customer shall indemnify, defend, and hold harmless TG for any violations or alleged violations thereof.

TG and its affiliates shall not be responsible for, and Customer shall indemnify, defend and hold TG harmless from, and against, any and all claims, suits, losses, damages, demands, injuries, costs and expenses (including reasonable attorney’s fees and legal fees) arising out of or related to Authorized Packaging Changes to Products, including but not limited to any damage or loss arising out of the Product‘s labelling, packaging, marketing, storage, distribution, and/or sale.

In the event that Customer elects to purchase TG’s Product comprising two wine glasses within packaging permitting Customer’s inclusion of one bottle of wine (the “2 Glasses 1 Bottle Product”), Customer shall ensure that the 2 Glasses 1 Bottle Product complies with all applicable laws, rules, and regulations, including but not limited to those laws, rules, and regulations that concern such 2 Glasses 1 Bottle Product’s labeling, packaging, marketing, storage, distribution, and sale, and Customer shall indemnify, defend, and hold harmless TG for any violations or alleged violations thereof.

2.10. TG does not provide Customers with any kind of marketing support, unless decided by TG in its sole discretion on an individual case-by-case basis. In the event that TG elects to grant any kind of marketing support to Customer, under no circumstances shall TG be obligated to complete or otherwise continue such marketing support or provide any future marketing support. Under no circumstances shall Customer be entitled to reimbursement for investments, promotional events, or promotional material of any kind whatsoever regarding the Brands (as defined in Clause 3.2.), irrespectively if Customer purchased such material from TG or from a third party.

3. Customer Obligations

Customer hereby agrees to at all times observe and abide by the obligations (the “Customer Obligations”) as outlined in this Clause 3 of these T&C.

3.1. Retail Customers may sell retail Products received from TG to end-user consumers. Active sales to any resellers of whatever kind in territories, which TG has exclusively reserved for itself or for third party dealers, are prohibited. TG will inform Customer respectively. Passive sales are exempted from the above restriction. Provisions in the selective distribution network remain unaffected by this Clause 3.1.

3.2. Customer acknowledges its obligation to maintain and promote the extremely high standard of the Products reputation as comprising some of the world’s finest glassware, the goodwill symbolized by the “Riedel”, “Spiegelau” and “Nachtmann” brands (the “Brands”), and the associated trademarks (the “Trademarks”) and trade dress and Products, and to further refrain from any conduct that could be viewed as having a negative impact on the image of the Products, the Brands, the Trademarks, TG, its parents, subsidiaries, and affiliates, such as but not limited to, selling the Products to or via mass merchandisers or discount stores.

3.3. Customer will conduct its activities strictly in accordance with these T&C and all applicable laws and regulations.

4. PRICES

4. Terms of Payment

4.1. The payment and delivery terms applicable to Customer are set forth separately in TG‘s applicable “Payment & Delivery Term Sheets” applicable to Customer (the “Payment & Delivery Terms”), which are hereby expressly incorporated into and form an integral part of these T&C.

4.2. TG may ask for a payment confirmation to be issued by a bank accepted by TG. Payment will be deemed effected as soon as TG is able to freely dispose of the same at its registered office. If payments are effected in freely convertible currencies other than the invoicing currency, the Customer will bear the exchange rate risk. Any bank charges are at Customer‘s expense. Customer acknowledges its obligation to pay default interest of 11% p.a. as of the due date. Any claims, counterclaims or claims for compensation of Customer shall not entitle Customer to any extension of the period stipulated for payment. TG reserves the right to change its Payment & Delivery Terms or suspend fulfillment of any agreement with Customer if this appears necessary due to Customer‘s financial situation or payment history.

4.3. An eventually granted cash discount may only be deducted if all outstan-ding invoices have been fully paid by Customer.

4.4. TG is not obliged to accept checks or bills of exchange; they will only be credited as payment subject to them actually being honored to the value to which they are at disposal. All costs incurred in connection with acceptance of bills of exchange or checks, in particular discounting charges and interest, will be borne by Customer.

4.5. Each delivery by instalment shall be deemed an independent transaction for billing and payment purposes.

4.6. In the event of default in payment by more than sixty (60) days, TG may suspend all deliveries until the full outstanding amount has been credited to TG’s account. Although TG may accept new Orders, these will not be processed and/or delivered.

4.7. In addition, in the event of default in payment by more than sixty (60) days, all outstanding accounts receivable, also under bills of exchange, will become due for payment immediately irrespective of their due date. TG shall furthermore be entitled to rescind all current contracts and/or confirmed Orders and/or request damages in lieu of performance, to stop deliveries and/or to make them subject to the provision of security and/or to effect delivery only against cash on delivery. The same applies (i) if Customer’s company is sold in whole or in part or (ii) if the legal form of Customer’s company is changed, (iii) if Customer‘s financial situation materially changes or deteriorates or (iv) if TG obtains knowledge of facts only after the Order was confirmed, which, upon reasonable consideration, make the granting of credit appear risky. In all of these cases, TG may retain title as described under Clause 12. and may ascertain and collect the Products from its deliveries that are still available from Customer for this purpose, which will not lead to a rescission of contract.

5. VALUE PACKS

5. Prices

Unless otherwise stated in TG‘s applicable Payment & Delivery Terms or ag-reed in writing, all prices are stated net per sales unit, EXW Tiroler Glashütte (INCOTERMS 2010) excluding the packaging for shipment. TG issues its invoi-ces in Euros or – at TG’s sole discretion – in another currency depending on the Customer delivery address, with the prices applicable at the time of delive-ry being legally effective. Prices are exclusive of statutory VAT and other taxes, fees or duties. If VAT is payable, it will be stated separately in TG‘s invoice.

6. DELIVERY

6. Delivery and passing of risk

6.1. Unless otherwise stated in TG‘s applicable Payment & Delivery Terms or agreed in writing, all deliveries will be effected EX WORKS (“EXW”, Incoterms 2010) at the relevant warehouse as specified by TG. If the warehouse was not specified by TG, the relevant warehouse is located in Kobernausserwaldstraße 25, A-5212 Schneegattern, Austria.

6.2. Unless otherwise defined in the applicable Payment & Delivery Terms, if so requested by Customer and agreed in writing by TG, Products can be shipped to a different destination. Save where otherwise agreed, TG is entitled to determine the kind of shipment (in particular the forwarding agency, shipment route, packaging). Products will be shipped at Customer’s sole cost and risk.

6.3. If Products are shipped to a different destination upon Customer’s request, the risk shall pass to Customer on the Products‘ surrender to the person designated to carry out shipment. Customer shall assume all risk to Products during transportation thereof, TG shall not be obligated to replace or credit Customer for Products that are stolen, lost, broken, damaged, or otherwise altered during or as a result of their transportation, and Customer shall be solely responsible for filing any and all claims for loss or damage with the responsible entity or entities.

6.4. Deliveries will be made by TG according to its operational capabilities. The communicated lead-times of Products are for information purposes only, and the communicated delivery times are not binding; delivery times for Special Orders and Limited Editions will be communicated to Customer on a case-by-case basis and are not binding. Any claims for damages due to non-perfor-mance or delayed performance are excluded, and Customer waives any and all claims against TG, its parents, subsidiaries, or affiliates for damages and other liabilities arising from or due to TG‘s actual or alleged non-performance or delayed performance.

6.5. TG will not be responsible for any delay or failure to perform its obligations under these T&C or otherwise, which arises out of or is due to unforeseeable events or events independent of the intention of the parties, such as events of force majeure (“Force Majeure Event”), including, by way of example and not of limitation, all events of pandemics, epidemics, war, terrorist actions, interventions and prohibitions of official authorities, delays in transport and customs clearance, transport damage, inclement weather, lack of energy, financial crises, labor conflicts as well as delays in delivery on the part of suppliers for any reasons. Delivery times will be prolonged where any event mentioned above occurs. The agreed payment terms are not changed thereby.

6.6. Retail Products are shipped in brown master packs (order units). The master pack is only to protect the retail Products and is not designed to be used as shippable outer carton and may not be used as such. Any other use of the master pack, in particular its use for shipping, is the sole responsibility and risk of Customer.

6.7. Customized packaging is subject to a separate Packaging Agreement.

6.8. Regarding Special Orders, TG reserves the right to supply the quantity deviations of +/- 5% of the quantity ordered (the “Permitted Deviation”), which is customary within the industry. Provided that TG‘s fulfillment of any Special Order is within the Permitted Deviation, the quantity actually delivered shall be paid for by Customer in full.

6.9. If Products are to be picked up by Customer at a TG warehouse, Customer shall pick up the Products comprising such Order within 10 business days after having receipt of notice from TG that Products comprising such Order have been made available for Customer’s pick up. If Customer fails to pick up such Products within this 10 day window, TG is entitled to charge warehousing fees.

7. FREIGHT

7. Partial delivery

In case where an ordered Product is out of stock, TG will automatically place the Product on back order, and send the stock as soon as it becomes available. Deliveries by instalments (i.e. partial deliveries) shall be permitted and may be invoiced. If TG delivers any of the Products by instalments, and any one of those instalments contains defective Products for any reason as defined in Clause 8., this shall not entitle Customer to the repudiation of the overall contract of sale entered into under these T&C.

8. BACK ORDERS

8. Defects

8.1. All claims, including defect claims and breakage claims, must be made in writing within twenty-eight (28) days from the date of delivery of the Products and in any event prior to their use or re-sale, including a detailed description and photos of the defect or the non-compliance; otherwise, the Products are deemed accepted by Customer. Customer shall assume all risk to Products during transportation thereof, TG shall not be obligated to replace or credit Customer for Products that are stolen, lost, broken, damaged, or otherwise altered during or as a result of their transportation, and Customer shall be solely responsible for filing any and all claims for loss or damage with the responsible entity or entities. Defects caused as result of a Force Majeure Event shall be excluded from TG’s warranty.

8.2. “Nachtmann” and “Spiegelau” and “Riedel” glasses sold by TG are dishwasher-proof according to DIN EN 12875-1:2005. For glass clouding a warranty of 2 (two) years as of the respective production date (bottom stamp) is granted. No warranty is provided for mechanical damages to the surface.

8.3. Customer acknowledges that deviations may occur between Products from the same series for technical reasons and because of the materials used in the course of the production of glass products, in particular with respect to size, weight, ovality, or the vertical axis according to the relevant technical drawings, which cannot be influenced by TG. Such deviations between Products, in particular compared to earlier deliveries of the same Product, therefore do not constitute a defect.

8.4. In the event of a justified claim by Customer, TG will, at its sole discretion, either replace the defective, broken or damaged Products or issue a credit note, but not both. If TG chooses to replace defective Products, Customer is required to return the defective Products at Customer‘s cost and risk to TG. Any and all other warranty claims of Customer are excluded.

8.5. The rights relating to defects do not apply in case a defect arises because Customer fails to observe TG‘s or a TG manufacturer’s Product or Product packaging instructions or recommendations, in particular instructions for processing or use of the Product, or generally accepted Product use practices.

9. SPLIT SHIPMENT

9. Limitation of Liability

9.1. Where liability for damages is subject to fault, TG‘s liability for damages – irrespective of the legal grounds – shall in each case be limited in accordance with this Clause 9.

9.2. TG shall not be liable if and to the extent that Product instructions and/or recommendations, in particular instructions for processing and use of the Products and/or the Product packaging, and/or generally accepted Product use practices are not observed by Customer, unless Customer furnishes proof that the damage would have occurred even if the Product or Product packaging instructions and recommendations had been observed. Further, TG shall not be liable for any damage or loss resulting from the purchase, handling, storage, packing, labelling, distribution, promotion, use or sale of the Products by Customer.

9.3. TG shall only be liable for damage to the extent that the damage was cau-sed by TG by gross negligence or willful intent. Liability for slight negligence is excluded, except in the case of personal injury. In such cases, however, TG‘s liability shall be limited to the foreseeable and typical damage.

9.4. The burden of proof lies with Customer.

9.5. In all other respects, TG‘s liability is excluded and shall in no event include any incidental, indirect or consequential damages of any kind.

9.6. Decorations of any kind not been made or commissioned by TG, such as engravings, silk-screenings etc., are the sole responsibility and risk of Customer. TG will not be responsible and shall be excluded from any warranty whatsoever, especially but not limited to that heavy metals or other dangerous materials are applied, or if the material used is not water-resistant or dishwasher-proof. Customer shall indemnify and hold TG harmless from any and all claims, suits, losses, damages, demands, injuries and expenses (including reasonable attorney‘s fees) arising out of or related to any claims made against TG based on any decorations (such as engraving, silk-screening, etc.) made to the Products by Customer.

10. DROP-SHIPMENT

10. Returns

Unless due to their defectiveness Products are returned in accordance with Clause 8, all returns are subject to TG’s prior written approval and subject to the exceptions set out in these T&C. Special Orders, Limited Editions or Products that have Authorized Packaging Changes or are engraved, decorated or personalized in any other way cannot be returned. Returned Products must be part of the current collections of TG and in mint, resalable condition, packed in the original undamaged boxes and in the original sealed master packs. Returns must be shipped within thirty (30) days after having received TG’s written prior approval and shall be delivered to TG‘s warehouse Schneegattern, Austria, freight, risk and costs at Customer‘s expense and responsibility. For Products returned in accordance with these provisions and such Products not being defective under Clause 8, the EXW Tiroler Glashütte Product net price valid at the date of the purchase will be credited minus a 15% restocking and handling fee. Any returns not in conformity with the foregoing may be refused by TG.

11. EXPRESS DELIVERY

11. Intellectual property rights

11.1. TG or TG‘s licensors hold any and all rights, titles, good-will, and interest of any nature whatsoever, including but not limited to any and all intellectual property rights, in particular copyrights, trademarks, trade secrets, design patent, patent rights and/or design rights, relating to the Products, the Product designs, the glassware samples and the glassware sample designs and prototypes, including, but not limited to, the respective drawings, tools, shapes and molds.

11.2. Any and all tools, molds, drawings, plans and prototypes provided to a Customer are the sole property of TG, including but not limited to any and all intellectual property, even if Customer bears the costs of their acquisition in part or in full, and will not be handed over at the end of any kind of cooperation or contract.

11.3. Customer is entitled to the restricted use of the Brands and/or Trademarks affixed to the Products or their packaging in its unchanged and originally packed form, in order to identify the Products. By doing so, Customer does not acquire any rights or licenses to the Brands or the Trademarks, or any other proprietary material of TG or its licensors. Customer undertakes to refrain from any other use.

11.4. Any use of the Brands, the Trademarks or of any other intellectual property of TG or of TG‘s licensors, as well as photos or videos thereof, in publications, electronic (internet) advertising, social media pages, or printed matter is only permitted upon prior written authorization of TG. In addition, Customer undertakes not to use any marks or signs that are likely to be confused with those of TG or of TG‘s licensors, or with “Riedel”, “Spiegelau” or “Nachtmann” or similar marks or signs or to have them protected in whatever form, in any jurisdiction.

11.5. Any and all materials and related documentation TG provides to Customer hereunder or through any contract together with any and all rights, titles and interests in the intellectual property, including but not limited to the Brands, the Trademarks, or any other proprietary material of TG and its licensors as well as all goodwill and copyright, in and arising from the Brands and the Products, vested therein or related thereto, remain the sole and exclusive property of TG or its licensors. Documents such as catalogues, brochures, illustrations, photos, videos, and the like as well as samples and designs remain at all times the intellectual property of TG or TG‘s licensors, protected by the relevant statutory provisions regarding reproduction, imitation, competition, etc. Customer undertakes not to make such material and documents available to third parties, either in whole or in part, without TG‘s prior written authorization or to use them for any purpose apart from the purpose for which they were handed over to Customer.

In case an authorization is granted that allows Customer to make such material and documents available to third parties, Customer shall be obliged to impose all obligations arising out of these T&Cs upon such third party. Customer remains liable to TG for any acts or omissions of such third party, and Customer shall hold TG harmless from any and all claims and expenses (including reasonable attorney‘s fees) arising out of or related to any such acts or omissions. If no Order is placed and/or upon the request of TG, Customer must return all materials and documents.

11.6. Any use of the Brands or of any intellectual property rights of TG or of TG‘s licensors on social media platforms such as Facebook, Twitter, Instagram etc. or any setting up of a “Riedel”, “Spiegelau” or “Nachtmann” account on such social media platforms shall only be permitted upon prior written consent of TG .

12. AIRFREIGHT COSTS

12. Retention of title

12.1. TG shall retain title to the Products and samples delivered until full payment is received for such Products by TG.

12.2. However, Customer is entitled to resell the Products in ordinary business in the usual way customary in the trade. If Products, which have not been paid for yet are sold, Customer shall assign the claim thus arising vis-à-vis third parties to TG. TG shall be entitled to disclose the assignment. Customer shall immediately make available to TG all information required in order to pursue all claims and agrees to comply with all formalities that may be necessary for a valid assignment.

12.3. Customer is not entitled to pledge or hand over Products of TG that have not been paid for as security. Customer is obliged to claim the title of TG to the Products in relation to third parties and to notify TG immediately in writing if third parties assert claims with respect to the Products or if execution is initiated.

 

13. TERMS OF PAYMENT

13. Severability

If any provision of these T&C is deemed ineffective or adjudicated to be invalid by a competent authority, the validity of the remaining provisions shall not be affected. The Parties shall agree on a new effective provision which comes as close as possible to the commercial purpose of the ineffective provision without delay.

14. PAST DUE PROCEDURE

14. Applicable law, place of jurisdiction

14.1. The T&Cs and the contract concluded with Customer including its pre- and post-contractual phases and effects are subject to, and shall be interpreted in accordance with, Austrian law. Applicability of UN Sales Law (CISG – United Nations Convention on Contracts of the International Sale of Products) is excluded.

14.2. The exclusive jurisdiction of Kufstein District Court, Austria, or Innsbruck High Court, Austria, (depending on jurisdiction over subject) is agreed for any disputes arising out of the contract concluded with Customer or the T&Cs underlying the contract, including the pre- and post-contractual phases and effects. However, TG is free to sue at Customer’s registered office.

15. SECURITY INTEREST

Company shall retain a first priority security interest in all delivered Products and in all accounts created with respect thereto, to secure payment and performance of Customer’s other obligations. Customer agrees to preserve the collateral prior to its commercial resale in the normal course and to otherwise protect the Company’s security interest. With respect to any Products, for which payment has not been made in full, Customer hereby grants to the Company a first priority purchase money security interest in such Products, including any proceeds resulting from their sale or transfer. Customer will execute, deliver, and cooperate with Company in causing to be filed with the appropriate authorities all statements/documents required or permitted by the Uniform Commercial Code and any other applicable laws in order to perfect and protect Company’s described security interests.

16. CLAIMS AND WARRANTIES

16.1. All claims including breakage must be made in writing within thirty (30) days from date of invoice and in any event prior to their use or re-sale, including a detailed description and photos of the defects or the non-compliances; otherwise the Products are deemed accepted by Customer. Company will not replace any Products broken or damaged if master-packs are used for shipping (see Section 6.6). Unless Customer participates in Company’s optional transit breakage coverage (see Section 7.2), Customer shall assume all risk to Products during transportation thereof, Company shall not be obligated to replace or credit Customer for Products that are stolen, lost, broken, damaged, or otherwise altered during or as a result of their transportation, and Customer shall be solely responsible for filing any and all claims for loss or damage with the responsible entity or entities. Damage caused as result of a Force Majeure Event shall be excluded from Company`s warranty.
16.2. Company warrants the Products against defects in materials and workmanship when purchased directly from Company or a Company authorized reseller. This warranty is extended only to the original end-user purchaser or the person receiving the Product as a gift and shall not be extended to any other person or transferee. This warranty is valid for a period of one (1) year from the date of original retail purchase. THIS WARRANTY DOES NOT APPLY TO PRODUCTS THAT ARE PURCHASED FROM SELLERS OTHER THAN COMPANY OR A COMPANY AUTHORIZED RESELLER.
Customer acknowledges that deviations may occur between Products from the same series for technical reasons and because of materials used in the production course of glass products, in particular with respect to size, weight, ovalicity or the vertical axle according to the respective technical drawings, which cannot be influenced by supplier/Company. Such deviations of Products, also in comparison to earlier deliveries of the same Product, therefore, do not constitute any defect.
16.3. Decorations that have not been produced by the Company, such as engraving, silk-screening etc. are the sole responsibility and risk of Customer. Company will not be responsible and shall be excluded from any warranty whatsoever, especially but not limited to that heavy metals or other dangerous material are applied, or if the material used is not water resistant or dishwasher-proof. Customer shall indemnify and hold the Company harmless from any and all claims, suits, losses, damages, demands, injuries and expenses (including reasonable attorney`s fees) arising out of or related to any claims made against the Company based on any decorations (such as engraving, silk-screening, etc.) made to the Products by Customer.
16.4. In the event of justified complaints, Company will – at its sole discretion – either make substitute delivery or issue a credit note. If Company chooses to make a substitute delivery, Customer is required to return the defective Products at Customer`s cost and risk.
In the event that Customer has entered into the optional transit breakage coverage (see Section 7.2), Customer’s sole remedy for Products that are stolen, lost, broken, damaged, or otherwise materially altered during or as a result of their transportation shall be Company’s issuance to Customer of a credit equaling the purchase value of such Products.
Any and all other warranty claims of Customer are excluded. Customer shall not be entitled to any additional claims, in particular for compensation of indirect damage or consequential damage of any kind.
16.5. Company shall only be liable for damage to the extent that the damage was caused by the Company by gross negligence or willful conduct. Company shall not be liable to Customer for the Company’s alleged negligence. The burden of proof lies with Customer in all cases. In all other respects, Company`s liability is excluded and shall in no event include any incidental or consequential damages of any kind.
16.6. Company shall not be liable if and to the extent that Product instructions, in particular instructions for processing and use of the Products, and/or generally accepted Product use practices are not observed by Customer. Further, the Company shall not be responsible for any damage or loss resulting from the purchase, handling, storage, packing, labeling, distribution, promotion, use or sale of the Products by Customer.
16.7. In no event shall Company be deemed to have assumed any obligation except to fill Orders it chooses to accept in its sole discretion, and Customer expressly agrees that the Company shall not be liable for any direct or consequential loss or damage caused by the Company‘s failure or inability, whether or not the same shall have been caused by any act or omission of the Company or any other person, to make shipment of any Products to Customer, Customer’s sole remedy being to cancel the Order for Products so delayed or remaining unshipped for more than six (6) months after the agreed shipment date.
16.8. COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS AS TO PERFORMANCE OF THE PRODUCTS OR AS TO SERVICE TO CUSTOMER OR TO ANY OTHER PERSON.
ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY EXCLUDED.
THE LIABILITY OF COMPANY, IF ANY, FOR DAMAGES RELATING TO ALLEGEDLY DEFECTIVE PRODUCTS SHALL BE LIMITED TO THE ACTUAL PRICE PAID BY CUSTOMER FOR SUCH PRODUCTS AND SHALL IN NO EVENT INCLUDE INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND.

17. CLAIMS PROCEDURES

All Claim forms shall be completed and submitted electronically to Company Claims Department allclaims@riedel.com.
17.1. Guidelines for Claims:
• Claims MUST be submitted in writing within thirty (30) days from date of invoice. Any claims made thereafter are subject to pre-approval from Company Management.
• Contact Claims Department for the status of a claim/credit (by email). Please allow 30 (thirty) days for credits to be processed. Also, please ensure that all necessary information is submitted in a timely manner for the credit to be processed within the 30-day timeframe.
• What falls under the Claims Department:
- Breakage: Customer shall send Claims Department pictures of hand-made items and of large quantity breakage on shipments (mandatory).
- Returns: All returns are subject to Section 20 herein.
- Replacements: will be issued at no cost, after review and approval of claim (Customer will receive either credit or replacement, not both). Packaging is not replaceable.
- Shipment to incorrect address: Customer shall inform and send claim with contact information so that shipment can be retrieved.
- Incorrect discount applied: Customer shall adhere to the following steps:
1. Inform Customer Service/Order Entry Representative.
2. Customer Service/Order Entry Representative will then inform Claims Department, who will then decide if credit is applicable.
17.2. Tasting Credits:
Customer shall submit forms with the following information immediately after Riedel Tasting Event:
• Total number of attendees (dividing by guests and Customer`s employees).
• Name of Company’s VP, Regional Sales Manager, Owner, Sales Agent, who conducted Tasting.
• Date of the Event.
• Tasting credits will be applied as of Order entry.

18. DISCLAIMER OF LIABILITY

With regard to Customer requests for “recommendations of services”: Company makes no representations or warranties of any kind, whether expressed or implied, with respect to any recommendations made to its Customer; its content, or the information available. Except as may otherwise be provided under applicable laws, Company shall not be liable for any damages whatsoever arising out of or related to the use of its recommendations. This limitation of liability applies to direct, indirect, consequential, special or other damages of any kind that Customer or others may suffer, including but not limited to damages for lost profits or business interruption, even if Company is notified in advance of the potential for any such damages.

19. CHARGE BACKS

All funding must be pre-announced and authorized by Company Management in advance in writing prior to Order being placed. A separate funding agreement shall be signed based on the amounts agreed. All funding, bill backs, partner funding authorized by Company Management in advance, cannot be taken or used as a payment deduction, Customer shall send a respective separate invoice to Company.
Charge back notification must be in writing within twenty-one (21) days from date of invoice. All charge back notifications must reference the respective Company invoice number. Customer shall contact Company`s Claims Department for proper procedure.

20. RETURNS

All returns are subject to Company`s express prior written approval. Custom-made Orders, Limited Editions or Products that are engraved, decorated or personalized in any other way may not be returned. Returned Products must be part of the current Product collections of Company and in mint, resalable condition, packed in the original undamaged boxes and in the original sealed master packs. Returns must be shipped within thirty (30) days after having received Company`s written prior approval and shall be delivered to the warehouse determined by Company. For Products returned in accordance with these provisions, the cost valid at the date of the purchase will be credited minus a 15% restocking fee and a handling fee. Freight (risk and costs) at Customer's expense and responsibility. Customer shall contact Company`s Claims Department for proper procedure.

21. CALL TAG POLICY

Call Tags are issued in the following instances:
1. Broken Products are received, and breakage is over 4 pieces.
2. Defective Products.
3. Incorrect or over-shipments.
Customer is responsible for return freight.
Exceptions are: Products are deemed defective or incorrect by Company or over-shipped item errors caused by Company.

22. RETENTION OF TITLE

22.1. Company shall retain title to the Products or samples delivered until full payment. However, Customer shall be entitled to resell the Products in ordinary business as customary in trade. If Products, which have not been paid for yet, are sold, Customer shall assign the claim thus arising vis-à-vis third parties to the Company. The Company shall be entitled to disclose the assignment to any other person. Customer shall immediately make available to the Company all information required in order to pursue all claims and agrees to comply with all formalities that may be necessary for a valid assignment.
22.2. Customer shall not be entitled to pledge or hand over as security, Products delivered from the Company that have not been paid for. Customer shall be obliged to claim the Company’s title to the Products vis-à-vis third parties and to notify the Company immediately in writing if third parties assert claims with respect to the Products or if execution is initiated.

23. INDUSTRIAL PROPERTY RIGHTS

23.1. All Products and designs, including especially, but not limited to, the manufacturing drawings and samples, supplied by Company are protected by intellectual property rights, namely copyright, trademark, trade secret, and patent rights, which are held exclusively by the Company or by the Company’s relevant licensor.
23.2. Any tools, molds, and plans are the sole property of the Company or its relevant licensors, even if Customer bears the costs of their acquisition in part or in full and will not be handed over at the end of any kind of cooperation.
23.3. Customer is entitled to use the Riedel Brands and/or Riedel Marks affixed to the Products or their packaging in its unchanged and originally packaged form, in order to identify the Products. By doing so, Customer does not acquire any rights to the Riedel Brands or Riedel Marks, or any other proprietary material of the Company or its licensor. Customer undertakes to refrain from any other use of the Riedel Brands or Riedel Marks, and any other proprietary material of the Company or its licensor.
23.4. Any use of the Riedel Brands, Riedel Marks, or any other proprietary material of the Company or its licensor, as well as photos or videos thereof in publications, electronic (internet) advertising, social media pages, or printed matter is only permitted upon prior written authorization of the Company. In addition, Customer undertakes not to use any signs that are likely to be confused with those of the Company or of the Company’s licensors, or with “Riedel” or “Nachtmann”, or similar signs, or to have them protected in whatever form.
23.5. Any and all materials and related documentation Company provides to Customer hereunder or through any contract together with any and all intellectual property rights, including but not limited to the Riedel Brands, the Riedel Marks, or any other proprietary material of the Company or its licensor including copyright, in and arising from the Products, vested therein or related thereto remain the sole and exclusive property of the Company or its licensors.
23.6. Documents such as catalogs, brochures, illustrations, photos, videos and the like, as well as samples and designs, remain at all times the intellectual property of the Company or of the Company’s licensors, protected by the relevant statutory provisions regarding reproduction, imitation, competition, etc. Customer undertakes not to make such material and documents available to third parties, either in whole or in part, without the prior written authorization of the Company, or to use them for any purpose apart from the purpose for which they were handed over to it. In case an authorization is granted allowing Customer to make such material and documents available to third parties, Customer shall be obliged to impose all obligations arising out of the T&Cs upon such third party. Customer remains liable to the Company for any acts or omissions to such third party, and Customer shall hold Company harmless from any and all claims and expenses (including reasonable attorney’s fees) arising out of or related to any such acts or omissions. If no Order is placed, Customer must return all materials and documents.
23.7. Any use of brand names or of any intellectual property rights of Company or of Company`s licensors on social media platforms such as Facebook, Twitter, Instagram etc. or any setting up of a “RIEDEL” or “NACHTMANN” account on social media platforms is only permitted upon Company`s prior written approval.

24. DATA PROTECTION AND STORAGE, ADVERTISING

The Company will store, and process personal data obtained in course of the business relationship with the Customer in compliance with the statutory provisions. Upon conclusion of the contract, the Customer agrees (subject to revocation possible at any time) that its personal data may be used by the Company for the purpose of marketing its Products and services. In addition, the Customer expressly agrees to be contacted by Company for advertising purposes by telephone, email, text message, or fax. Such consent may be revoked at any time.

25. SEVERABILITY

If any provision of these T&Cs is ineffective, the validity of the remaining provisions shall not be affected. The parties shall agree on the new effective provision, which comes as close as possible to the commercial purpose of the ineffective provision without delay.

26. APPLICABLE LAW, PLACE OF JURISDICTION

These T&C and the respective contract(s), including the pre- and post-contractual phases and effects, are subject to the laws of New Jersey, USA. The exclusive jurisdiction of the courts of New Jersey is agreed for any disputes arising out of the contract concluded with Customer or these T&C underlying the contract, including the pre- and post-contractual phases and effects.

27. U.S. MINIMUM ADVERTISED PRICE POLICY RETAIL

PART 1: BACKGROUND AND SCOPE
Company is associated with the highest standards of glassmaking. Today, the Riedel Brands and Riedel Marks are well positioned for success in the premium glassware market. Maintaining and enhancing the integrity and prestige of the Riedel Brands and Riedel Marks through proper product position and promotion are critical to Company’s ability to compete within that premium market.
Company recognizes the value of resellers that dedicate resources to the promotion of the Company’s premium Products. Such valuable services include, but are not limited to, educating customers about the unique qualities and features of the Products, maintaining adequate inventory to ensure excellent customer service, and having high quality promotional materials and displays to advertise the Riedel Brands. The Company is unilaterally implementing this minimum advertised price policy (the “MAP Policy”) to support resellers in achieving the Company’s goals of protecting its image and reputation, promoting the Riedel Brands, and providing excellent customer service.
Company intends to do business with business partners, who appreciate the importance of maintaining and promoting the integrity and prestige of the Riedel Brands. The Company reserves the right unilaterally to cease doing business with any dealer or distributor not in compliance with this MAP Policy. The MAP Policy is effective immediately, for all Products advertised for sale in the United States. The MAP Policy applies to retailers, dealers, and distributors of any type that advertise a sales price for any Product (“Covered Customers”).
Notwithstanding anything else in this MAP Policy, each Covered Customers shall at all times remain free to establish prices for, or make sales of, the Products in accordance with these T&C, and to the extent applicable, the terms of any agreement between such Covered Customers and the Company, at prices of such Covered Customer’s own choosing.
THE COMPANY EMPHASIZES THAT THE MAP POLICY APPLIES ONLY TO ADVERTISED PRICES.
Company is not inviting or seeking, nor shall it accept, any agreement by any Covered Customer to abide by the MAP Policy. Rather, the Company has unilaterally determined that it will only distribute Products to Covered Customers that consistently comply with the requirements of this MAP Policy. The Company will not discuss any conditions of acceptance related to the MAP Policy, as it is non-negotiable and will not be altered for any Covered Customer.
PART 2: THE POLICY
Any instance, in which a Covered Customer advertises or promotes any price for any Product that is below such Product’s corresponding MAP as listed in the Company’s Price Book shall constitute a violation of the MAP Policy (a “MAP Violation”). The Company reserves the right, in its sole discretion, to establish or modify any and all prices as listed in the Company’s Price Book at any time upon prior written notice to its Covered Customers.
The MAP Policy applies to any advertised price (whether advertised using traditional media, email newsletters, email solicitations, internet or similar electronic media, television, radio, in-store signage, on-line advertisements, paid search advertisements, shopping comparison advertisements, ad landing pages, or any other form of advertising) for any Product that is listed in the Company’s Price Book. This MAP Policy specifically encompasses “click for price” or “call for price” features on any website or print advertising; however, it is not a MAP Violation of this MAP Policy for Covered Customers to provide discounted sales prices to internet shoppers in response to a phone or email request.
The Company’s determination concerning whether a Covered Customer has committed a Map Violation shall be final and binding.
PART 3: VIOLATIONS AND CONSEQUENCES
In case a Covered Customer commits a MAP Violation, Company shall submit to such Covered Customer a notice of such MAP Violation(s) (a “Violation Notice”) and shall unilaterally impose the below-listed penalties in accordance with such Covered Customer’s MAP Violation history. MAP Violations shall be determined by Company at its sole discretion. Company will not accept any communication from any Covered Customer that has committed a MAP Violation regarding the MAP Violation or such Covered Customer’s efforts to bring its advertising in compliance with this Policy.
• First MAP Violation: Upon a Covered Customer’s first commission of a MAP Violation, the Company shall send such Covered Customer a written notification of such First MAP Violation.
• Second MAP Violation: Upon a Covered Customer’s second commission of a MAP Violation, the Company shall refuse to fulfill all orders of Products submitted by such Covered Customer to the Company for a period of three (3) months from the date that the Company discovered the MAP Violation.
• Third MAP Violation: Upon a Covered Customer’s third commission of a MAP Violation, the Company shall refuse to fulfill all orders of Products submitted by such Covered Customer to the Company for a period of six (6) months from the date that the Company discovered the MAP Violation.
• Fourth MAP Violation: Upon a Covered Customer’s fourth commission of a MAP Violation, the Company shall refuse to fulfill all orders of Products submitted by such Covered Customer to the Company for the remainder of such Covered Customer’s respective distribution agreement. If no effective distribution agreement exists between the Company and the Covered Customer at the time of such fourth MAP Violation, the Company shall refuse to fulfill all orders of Products submitted by such Covered Customer to the Company indefinitely.
A Covered Customer’s failure to remedy a MAP Violation within 48 hours of its receipt of a Violation Notice for such MAP Violation shall constitute an additional MAP Violation and shall carry with it the associated penalties for such additional MAP Violation.

28. PROPOSITION 65 WARNING

The Proposition 65 warning requirements for lead crystal apply to all retail stores located in California; to all “mail order” sales made to California residents (whether by mail, catalogue, telephone or via the Internet); to restaurants in California that serve food or beverages in lead crystal; and to California wineries that sell lead crystal or use it for giveaways or tastings. In addition, distributors of lead crystal must pass on information about these Proposition 65 warning requirements to their customers.
A copy of the International Crystal Federation’s recommended Proposition 65 warning sign for retail sales in California of lead crystal is attached to the T&C. More specialized warning language for “mail order” sales and warning signs for restaurants and wineries are available upon further request.1 Failure to provide Proposition 65 warnings for lead crystal as required could subject your company to enforcement litigation (including citizens’ suits), monetary penalties, and attorney’s fees.
If you have questions about the specifics of the Proposition 65 warning program for lead crystal, or if you would like any associated documentation (including warning signs or posting instructions), please contact legal counsel for Crystal of America, Inc., Matthew R. Yogg, Esq., of Davidoof Hutcher & Citron, LLP at 646-428-3272 or mry@dhclegal.com.
SUMMARY OF PROPOSITION 65 WARNING REQUIREMENTS FOR RETAILERS OF LEAD CRYSTAL:
If you are a retailer of any kind (no matter where you are based), and maintain retail outlets in California, in which lead crystal products are sold, you must provide a warning by posting one or more warning signs in each California store as further described below.
Location of Warning Signs:
Any retailer may satisfy the requirements of the Proposition 65 warning program for lead crystal in any one of the following three ways. You may either:
• Post 4-inch by 6-inch signs on each shelf where leaded crystal items are displayed, or
• Post 8-inch by 10-inch signs at each location (such as in the aisle) where leaded crystal items are displayed (the signs may be free-standing, placed on a wall, hung, or displayed in any manner as long as a potential purchaser would be reasonably likely to see the signs), or Post 4-inch by 6-inch (or, at your option, 8-inch by 10-inch) signs at, on, or adjacent to each checkout counter, sales register, cash stand, or cash wrap in the tableware department. If you do not have such separate facilities dedicated to a tableware department, and your store is less than 7,500 square feet, then you must place the warning signs at each checkout counter, sales register, cash stand, or cash wrap in the store.
These options are summarized in chart form below:

Type of store

Options for placement of Proposition 65 warning signs for lead crystal Large department store ( > 7500 sq. ft.) with separate checkout for tableware dept. Large store ( > 7500 sq. ft.) without separate checkout for tableware dept. Small store ( < 7500 sq. ft.) without separate checkout for tableware dept. 4x6 on display shelves Yes Yes Yes 8x10 near display Yes Yes Yes 4x6 at registers (optional: 8x10) Yes – put signs at all registers in the dept. No – signs at registers not allowed Yes, but required at all registers in store

 

Content of Warning Signs:
A number of different Proposition 65 warning signs for lead crystal have been approved by the California Attorney General’s office and courts since the early 1990s. While you may use any of the approved signs, the International Crystal Federation recommends that you post the attached version of the sign, which, in addition to referencing food and beverage storage and consumption, also warn about potential exposures to lead from handling lead crystal.
Also, please note that if you sell Baccarat decanters, falcons, stoppered pitchers, or mustard or jam pots, you will need to use a special version of the warning sign that contains an asterisked footnote exempting these items from the warning message. Please contact the International Crystal Federation if you need these or copies of any other Proposition 65 warning signs for lead crystal.
REQUIREMENTS FOR PROPOSITION 65 WARNINGS CONCERNING OTHER CALIFORNIA SALES OR USES OF LEAD CRYSTAL:
The following is a brief summary of requirements that apply to mail order and internet sales of lead crystal to California residents, as well as requirements for distributors, California restaurants and wineries using or selling lead crystal.
Requirements for Mail Order, Telephone, Catalog, and Internet Sales to California:
Residents:
If you sell lead crystal products to residents of California by mail order, telephone, catalog, or the Internet – you must provide a Proposition 65 lead crystal warning to any customer, who is a resident of California. The warning may appear in the catalog, on an ordering website, or in a package insert or label, but it also must meet highly specific requirements for each of these modes. (More detailed information concerning these requirements is available upon further request to the International Crystal Federation.)
Requirements for Restaurants:
If you operate a restaurant or other eating establishment in the State of California and serve food or beverages in lead crystal tableware, you must provide a warning to your patrons by posting a special lead crystal Proposition 65 warning sign for restaurants, where it will be seen by your customers before they consume food. (These signs are available from the International Crystal Federation on request.)
Requirements for Wineries:
If you are a California winery that sells or uses lead crystal tableware products on your premises, you must post a special Proposition 65 lead crystal warning sign for wineries on or near the cash register(s) or service counter(s) where lead crystal tableware articles may be purchased by consumers, and in or at the entrance to any area where wine is poured in lead crystal glasses for tasting. (These signs are available from the International Crystal Federation on request.)
Requirements for Distributors of Lead Crystal, whose Customers may do business in California:
If you are a distributor of any brand of lead crystal tableware, giftware, or lighting to retailers, mail order/Internet sellers, restaurants, or wineries, you must pass on Proposition 65 lead crystal warning program information (such as this memorandum) to all of your customers, who may do business in California. You must also request that they implement the Proposition 65 warning program for lead crystal as described above. Failure to do so may subject you and your customers to enforcement lawsuits, penalties and attorneys’ fees.

 

 

 

 

 

 

 

 

1 In addition to Proposition 65 warnings required for the storage and consumption of food and beverages from lead crystal tableware, these T&C and the International Crystal Federation recommend providing Proposition 65 warnings about potential exposures to lead from handling the exterior of lead crystal products, including for items such as crystal giftware (candlesticks, vases, bowls, etc.) and lighting. Lead crystal products are not intended primarily for use by children ages 12 and under regardless of whether or not a Proposition 65 or other warning is given for them.