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.
2.1. 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. 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.
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 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. 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.
8.1. 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. 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.
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. 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. 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.
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. 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.