TERMS OF SALE – B2B WEBSTORE

CRYSTAL OF AMERICA, INC. AND CRYSTAL OF NEW YORK, INC.
USA 2020

1. SCOPE OF APPLICATION

These Terms of Sale (the “Terms of Sale”) are entered into by you, as an authorized representative of a retail business with a valid purchase direct resale certificate (“Customer”) and Crystal of America, Inc. and Crystal of New York, Inc. (together, “Company”). These Terms of Sale shall govern the provision of goods and services by Company to Customer, unless otherwise agreed upon in writing signed by Company. By ordering products sold by Company (the “Products”) through this B2B Webstore (the “Site”), Customer expressly acknowledges and agrees to be bound by the Terms of Sale. Any and all terms and conditions of Customer, whether memorialized via written statement, purchase order, or otherwise, shall not be binding upon Company unless such terms and conditions are duly acknowledged and expressly agreed to in writing signed by Company.

2.ORDERS

2.1. Customer is permitted to use the Site to purchase Products for resale exclusively to end-user consumers within the United States, provided that Customer strictly adhere to all guidelines and restrictions set forth in these Terms of Sale. Sales by Customer to any other retailers (including but not limited to warehouse clubs), wholesalers, dealers including but not limited to internet retailers or distributors are strictly prohibited. Only Customers with valid purchase direct resale certificates (previously defined herein as “Customers”) are permitted to order Products from or otherwise use the Site. All other persons or entites (including, without limitation, consumers) are expressly prohibited from using the Site or purchasing Products through the Site.

2.2. Company reserves the right in its sole discretion to change prices for Products offered for sale on the Site at any time, and to correct pricing errors that may inadvertently occur. Unless otherwise agreed to by Company, Customer`s payment must be received by Company prior to Company’s acceptance of an order. Payment must be made by credit card, PayPal, or any other prearranged payment method agreed to by Company in writting. Customer’s order is subject to cancellation by Company, in Company’s sole discretion, at any time and for any reason, without any requirement that it notify Customer of the reason thereof and without liability to Customer. Company is not responsible for pricing, typographical or other errors in any offer, including on the Site, and Company reserves the right to either contact Customer for instructions before shipping or cancel any orders arising from such errors.

2.3. In the event Customer wishes to cancel or modify an order that was recently placed, but was so far not shipped, Customer must immediately contact Company on Company’s customer service phone line at 1-888-4-RIEDEL (1-888-474-3335) or via e-mail at b2bus@riedel.com, and one of Company’s representatives may be able to assist. Once an order has been placed, there is a very short timeframe in which Company can cancel the order, so Company cannot guarantee that it will be able to cancel Customer’s order. All orders typically ship out within 1- 3 business days from submission.

2.4. For security reasons, Company cannot make address changes once an order has been placed.

2.5. Company shall retain title to all Products purchased through the Site until Customer submits payment thereon in full and Company delivers the Products to the carrier.

3. SHIPPING; TAXES; TITLE; RISK OF LOSS

3.1. The cost of shipping and handling as well as taxes are not included in the prices of the products offered for sale on the Site, unless otherwise expressly indicated at the time of sale. Notwithstanding the immediately preceeding sentence, orders valued at $1.000,00 MSRP or more will be delivered free on standard U.S. ground shipping to U.S. delivery addresses in the 48 continental states only. This offer is not valid for Alaska, Hawaii, U.S. territories, P.O. Boxes, or APO/FPO addresses.

3.2. All items purchased from Company are made pursuant to a shipment contract. This means that the risk of loss and title for such items pass to Customer upon Company’s delivery to the carrier. Customer must notify Company within three (3) days of the date of Customer‘s receipt of its order if Customer believes any part of its purchase is missing or wrong.

3.3. Company endeavors to ship Customer‘s purchase within three (3) Business Days of receiving Customer‘s order. Company does not ship orders on Saturdays, Sundays, or federally recognized United States holidays. The time it takes to receive Customer’s order depends on the shipping method Customer chooses during checkout, and the time of day Customer places Customer’s order. Company offers the following delivery estimates:

  • Ground delivery: arrives within 5-7 Business Days from shipping confirmation; and
  • Express 2nd day delivery: arrives in 2 Business Days from shipping confirmation.

The aforementioned delivery estimates are mere estimates subject to the acceptance and approval of Customer’s order. Deliveries can take longer, including deliveries in certain remote areas. As such, these delivery estimates shall not be binding upon Company, nor shall they serve as a basis for imposing any liability upon Company for any shipment that fails to meet these estimated delivery dates. “Business Days” are defined as Monday to Friday 9am to 5pm, excluding federally recognized United States holidays.

3.4. Company will send Customer a number of emails during the order process to keep Customer informed about the different stages of Customer’s order. In addition, Customer’s B2B Webstore account will allow Customer to follow the status of its order. Customer may contact Company on Company’s customer service phone line at 1-888-4-RIEDEL (1-888-474-3335) or via e-mail at b2bus@riedel.com to get more precise information on delivery delays, or to reschedule any delivery.

3.5. The carrier will make three attempts to deliver Customer’s package to the address provided to Company by Customer, and after the third attempt, Customer will be able to arrange for pickup from the nearest carrier facility. Otherwise, the shipment will be returned to Company’s warehouse and a refund will be processed for the Products, less the cost of the prior shipment.

4. RETURN POLICY

4.1. All Products may be returned, subject to Company`s prior written approval and subject to the exceptions set out in these Terms of Sale. Products purchased in a clearance sale, limited editions and Products that are engraved, decorated or personalized in any other way may not be returned. Customer shall contact Company`s Claims Department by email at allclaims@riedel.com for proper procedure and prior written approval. For Products ordered on the Site, Company will provide Customer a refund of the purchase price minus a 15% restocking and handling fee, as long as the following return procedure and conditions are followed:

  • The Products must be returned in new and unused condition and inside their original packaging;
  • The Products must be returned and received by Company within 30 days after having received Company`s prior written approval;
  • The reason(s) for the return must be documented on the packing slip and inserted in the shipping box;
  • The Product return label must be completed as instructed and affixed on the shipping box; and
  • All packages must be returned prepaid; all freight/shipping costs and risk of loss shall be borne exclusively by Customer.

4.2. Customer will receive a refund within four (4) weeks of Company’s receipt of the returned Products; however, in most cases Customer will receive a refund more quickly. After successful completion of the refund, Customer will find a credit on its credit card statement or PayPal account, as applicable.

4.3. Please note that this policy applies only to items purchased on the Site. Company will not accept returns for Products purchased elsewhere.

5. CUSTOMER OBLIGATIONS

Customer hereby agrees to at all times observe and abide by the obligations (the “Customer Obligations”) as outlined in this Section 5.

5.1. Customer is permitted to sell the Products exclusively to end-user consumers within the United States. Sales to any retailer (including but not limited to a warehouse club), wholesaler or dealer (including but not limited to internet retailer or distributor) or any other person or entity that sells or intends to sell Products to end-user consumers are strictly prohibited.

5.2. Customer is permitted to sell the Products exclusively within the United States, and all sales outside the United States are strictly prohibited. To the extent that Customer has agreed, whether via contract or otherwise, to limit its sale of Products to a specific territory within the United States, Customer shall limit its sale of Products to such territory in accordance with the terms of its agreement with Company.

5.3. Customer must maintain and promote the Products’ reputation as comprising some of the world’s finest glassware, the goodwill symbolized by the “RIEDEL” and “NACHTMANN” brands (the “Riedel Brands”), and the associated trademarks and trade dress (the “Riedel Marks”), and Customer must refrain from any conduct that could be viewed as disparaging or otherwise having a negative impact on the image of the Products, the Riedel Brands, the Riedel Marks, and/or Company, its parents, subsidiaries, and affiliates. Conduct that is disparaging or that has a negative impact as stated herein shall be determined by Company in its sole discretion.

5.4. Customer will conduct its activities in strict accordance with the Terms of Sale and all applicable laws and regulations, including but not limited the obligation to comply with the requirements of California’s Proposition 65, as further detailed below.

5.5. Any preferential conditions, on which Customer 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.

5.6. Customer acknowledges that the Company-provided packaging and labeling of the Products have the intended purpose and effect of maintaining and enhancing Company’s reputation and image as one of the world’s finest glassware makers, and signaling to end-user consumers the goodwill associated with the Riedel Brands and Riedel Marks, among other things. Without the prior written consent of the Company, Customer shall not modify or remove any packaging, labeling, markings or other items, such as promotional materials or instructions, affixed to the Products themselves or their packaging or accompanying the Products as shipped to Customer. Products shall not be unpacked from their original packaging as shipped to Costumer or be repacked.

6. CLAIMS, WARRANTIES AND LIMITATIONS OF LIABILITY

6.1. All claims, including defect claims and breakage claims (“Claims”), must be made in writing within thirty (30) days from the date of invoice of the relevant Products and in any event prior to their use or re-sale, and must be submitted in accordance with Section 7 of these Terms of Sale; otherwise the Products shall be deemed accepted by Customer.

6.2. 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.

6.3. 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 Company. Such deviations of Products, also in comparison to earlier deliveries of the same Product, therefore, do not constitute a defect.

6.4. Product decorations or alterations that are not done by Company (“Third-Party Alterations”), such as, by example and not limitation, engravings and silk-screenings, are the sole responsibility and risk of Customer, and any such Product with Third-Party Alterations shall not be eligible for any warranty of Company. Under no circumstances shall Company be liable for Products with Third-Party Alterations, including those completed with dangerous material such as heavy metals or material that is not water resistant or dishwasher-proof. Customer shall indemnify and hold Company harmless from any and all claims, suits, losses, damages, demands, injuries, costs and expenses (including reasonable attorney`s fees and costs) arising out of or related to any Products with Third-Party Alterations.

6.5. Company will not be responsible for any delay or failure to perform its obligations under these Terms of Sale or otherwise, which arises out of or is due to unforeseeable events or events independent of the intention of the parties, such as but not limited to events of force majeure (“Force Majeure Events”), including, by way of example and not of limitation, all events of 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, epidemics, pandemics as well as delays in delivery on the part of suppliers for any reasons. Delivery times will be prolonged where any Force Majeure Event occurs. The agreed payment terms are not changed thereby.

6.6. In the event that Company, in its sole discretion, determines that any defect Claim or breakage Claim duly submitted to it is the fault or responsibility of Company, Company will, at its sole discretion, either replace the defective, broken or damaged Products or issue a credit note, but not both. If Company chooses to replace defective Products, Customer is required to return the defective Products at Customer`s cost and risk. Damages caused as a result of a Force Majeure Event shall be excluded from Company’s warranty. Packaging is not replacable.

6.7. Customer shall assume all risk to Products during transportation thereof, Company shall not be obligated to replace or credit Customer for Products that are 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.

6.8. 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 or other persons. Company shall not be responsible for, and Customer shall indemnify and hold Company harmless from, any and all claims, suits, losses, damages, demands, injuries, costs and expenses (including reasonable attorney’s fees amd legal fees) arising out of or related to the purchase, handling, storage, packing, labeling, distribution, promotion, use or sale of the Products by Customer.

6.9. 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 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 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. In such circumstances, Customer’s sole remedy shall be to cancel the order for Products so delayed or remaining unshipped for more than six (6) months after the agreed shipment date.

6.10. COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS AS TO THE PRODUCTS OR 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.

6.11. THE LIABILITY OF COMPANY, IF ANY, FOR DAMAGES ARISING FROM OR RELATING TO ALLEGEDLY DEFECTIVE, BROKEN OR DAMAGED PRODUCTS SHALL BE LIMITED TO THE ACTUAL PRICE PAID BY CUSTOMER FOR SUCH PRODUCTS. THE LIABILITY OF COMPANY, IF ANY, FOR ANY OTHER DAMAGES WILL ONLY ARISE FOR DAMAGES CAUSED BY COMPANY’S GROSS NEGLIGENCE OR WILFUL MISCONDUCT. THE BURDEN OF PROOF LIES WITH CUSTOMER IN ALL CASES. 

6.12. COMPANY SHALL NOT BE LIABLE FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND THAT CUSTOMER OR OTHERS MAY SUFFER, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS OR REVENUES OR BUSINESS INTERRUPTION, ARISING FROM OR RELATED TO COMPANY’S PERFORMANCE HEREUNDER, ITS PRODUCTS OR SERVICES, EVEN IF COMPANY KNEW OR SHOULD HAVE KNOWN OF THE POTENTIAL FOR ANY SUCH DAMAGES.

7. CLAIMS PROCEDURES

All Claim forms shall be completed and submitted by email to Company’s Claims Department at allclaims@riedel.com.

  • Claims MUST be submitted in writing within thirty (30) days from the date of receipt for the relevant Products and in any event prior to their use or re-sale. Any claims made thereafter are subject to pre-approval from Company Management.
  • Claims must include a detailed description and photos of the alleged defect and/or non-compliance.
  • Claims will be subject to a review and approval process.
  • Contact the Claims Department for the status of a claim or any credit or replacement thereon (by email). If approved, please allow thirty (30) days for credits to be processed.
  • Types of claims handled by the Claims Department:
    • Breakage: Claims Department requires photographs and a detailed description for any breakage claim.
    • Shipment to incorrect address: Customer shall inform Company of any shipment made to an incorrect address and send a claim with the contact information of the latter location so that the 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 the Claims Department, who will then decide if credit is applicable.
8. INTELLECTUAL PROPERTY RIGHTS

8.1. All Products and designs, including but not limited to manufacturing drawings and samples supplied by Company are protected by intellectual property rights, namely copyright, trademark, trade secret, design patent, and patent rights, which are held exclusively by Company and/or by Company’s licensors.

8.2. Any and all tools, molds, and plans are the sole property of Company and/or its 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 or contract.

8.3. Customer is entitled to the restrictive use of the the “RIEDEL” and “NACHTMANN” brands (the “Riedel Brands”), and the associated trademarks and trade dress (the “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 Company or its licensors. Customer undertakes to refrain from any other use of the Riedel Brands or Riedel Marks, and any other proprietary material of Company or its licensors.

8.4. Any use of the Riedel Brands, Riedel Marks, or any other proprietary material of Company and/or its 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 Company and the relevant licensors (as necessary). In addition, Customer undertakes not to use, display, or make publically visable any marks or signs that are likely to be confused with those of the Company or those of its lecensors, any of the Riedel Brands or Riedel Marks, or to make an application in any jurisdiction for protection of the same in whatever form.

8.5. Any and all materials and related documentation Company 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 Riedel Brands, the Riedel Marks, or any other proprietary material of Company and/or its licensors including copyright, in and arising from the Products, vested therein or related thereto remain the sole and exclusive property of Company and/or its licensors.

8.6. 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 Company and/or its licensors, protected by the relevant statutory and common law 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 Company, or to use them for any purpose apart from the purpose for which they were provided 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 Terms of Sale upon such third party. Customer remains liable to Company for any acts or omissions of 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.

8.7. Any use of brand names or of any intellectual property rights of Company or of Company`s licensors, including but not limited to the Riedel Brands or Riedel Marks, 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.

9. DATA PROTECTION AND MARKETING

Company will collect, store, process and disclose personal information obtained in course of the business relationship with Customer in accordance with the applicable laws and the Company`s privacy policy (available at https://www.riedel.com/en-us/shopping-legal/privacy-policy). Customer agrees (subject to revocation possible at any time and subject to applicable laws) that Customer’s personal information may be used by Company for the purpose of promoting Company’s business, the Products or Company’s associated services and as otherwise permitted or required by applicable laws. In addition, Customer expressly agrees that Company may contact it for such marketing purposes by telephone, email, text message or fax. Such consent may be revoked at any time.

In this context the following details of the Company are stated:
Telephone: +1-732-346-8960
Website: Riedel.com

10. U.S. MINIMUM ADVERTISED PRICE POLICY RETAIL

10.1.  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 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. Company is unilaterally implementing this minimum advertised price policy (the “MAP Policy”) to support resellers in achieving Company’s goals of protecting its image and reputation, promoting the Riedel Brands and Riedel Marks, 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 and Riedel Marks. 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 Customers (as herein defined).

Notwithstanding anything else in this MAP Policy, each Customers shall at all times remain free to establish prices for, or make sales of, the Products in accordance with these Terms of Sale, and to the extent applicable, the terms of any agreement between such Customers and Company, at prices of such Customer’s own choosing.

Company is not inviting or seeking, nor shall it accept, any agreement by any Customer to abide by the MAP Policy. Rather, Company has unilaterally determined that it will only distribute Products to Customers that consistently comply with the requirements of this MAP Policy. 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 Customer. COMPANY EMPHASIZES THAT THE MAP POLICY APPLIES ONLY TO ADVERTISED PRICES.

10.2. THE POLICY:
Any instance, in which a Customer advertises or promotes any price for any Product that is below such Product’s corresponding MAP as listed in Company’s Price Book shall constitute a violation of the MAP Policy (a “MAP Violation”). Company reserves the right, in its sole discretion, to establish or modify any and all prices as listed in Company’s Price Book at any time upon prior written notice to its 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 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 Customers to provide discounted sales prices to internet or brick and mortar shoppers in response to a phone or email request.

10.3. VIOLATIONS AND CONSEQUENCES:
In case a Customer commits a MAP Violation, Company shall submit to such Customer a notice of such MAP Violation(s) (a “Violation Notice”) and shall unilaterally impose the below-listed penalties in accordance with such Customer’s MAP Violation history. MAP Violations shall be determined by Company at its sole discretion. Company will not accept any communication from any Customer that has committed a MAP Violation regarding the MAP Violation or such Customer’s efforts to bring its advertising in compliance with this Policy.

  • First MAP Violation: Upon a Customer’s first commission of a MAP Violation, Company shall send such Customer a written notification of such First MAP Violation.

  • Second MAP Violation: Upon a Customer’s second commission of a MAP Violation, Company shall refuse to fulfill all orders of Products submitted by such Customer to Company for a period of three (3) months from the date that Company discovered the MAP Violation.

  • Third MAP Violation: Upon a Customer’s third commission of a MAP Violation, Company shall refuse to fulfill all orders of Products submitted by such Customer to Company for a period of six (6) months from the date that Company discovered the MAP Violation.

  • Fourth MAP Violation: Upon a Customer’s fourth commission of a MAP Violation, Company shall refuse to fulfill all orders of Products submitted by such Customer to Company for the remainder of such Customer’s respective distribution agreement. If no effective distribution agreement exists between Company and the Customer at the time of such fourth MAP Violation, Company shall refuse to fulfill all orders of Products submitted by such Customer to Company indefinitely.

A 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. COMPANY’S DETERMINATION CONCERNING WHETHER A CUSTOMER HAS COMMITTED A MAP VIOLATION SHALL BE FINAL AND BINDING.

11. PROPOSITION 65 WARNING

The Proposition 65 warning requirements for lead crystal apply to all retail stores located in California; to all “mail ordersales 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 Terms of Sale. More specialized warning language for “mail order” sales and warning signs for restaurants and wineries are available upon further request. 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.

In addition to Proposition 65 warnings required for the storage and consumption of food and beverages from lead crystal tableware, these Terms of Sale 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.

11.1. 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. Customer 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:

  • Large deparement store (>7500 sq, ft,) with separate check out for tableware departement:
    • 4x6 on display shelves: YES
    • 8x10 near display: YES
    • 4x6 at registers (optional 8x10): YES - put signs at all registers in the departement.
  • Large store (>7500 sq, ft,) with separate check out for tableware departement:
    • 4x6 on display shelves: YES
    • 8x10 near display: YES
    • 4x6 at registers (optional 8x10): NO - signs at registers not allowed
  • Small store (<7500 sq, ft,) with separate check out for tableware departement:
    • 4x6 on display shelves: YES
    • 8x10 near display: YES
    • 4x6 at registers (optional 8x10): 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.

11.2. 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.)

12. MISCELANEOUS

12.1. GOVERNING LAW
The laws of the State of New Jersey, USA, without regard to principles of conflict of laws, will govern these Terms of Sale and any dispute of any sort that might arise between Company and Customer. Any dispute arising between Company and Customer that is not resolved pursuant to the Dispute Resolution section below shall be resolved exclusively by the state and/or federal courts of the state of New Jersey, USA.

12.2. DISPUTE RESOLUTION
Due to the high cost of litigation, in time and money, both Company and Customer agree to the following dispute resolution:

In the event of any claim, action, dispute or controversy arising from, or related to these Terms of Sale or any transaction conducted on the Site, the party asserting the dispute will first try to settle such dispute in good faith by providing written notice to the other party. The notice must be sent by registered mail, must describe the issues of the dispute, and must include substantiating documentation related to the dispute. The parties agree to 30 days from receipt of dispute to respond or settle dispute. For disputes against Company, notice shall be mailed to:

Crystal of America, Inc.
Attn: General Counsel
110 Fieldcrest Avenue
Raritan Plaza 1, 4th Floor
Edison, NJ 08837, USA
 
To the extent not resolved through the process described above, the parties agree to arbitrate any claim, dispute, or controversy, including all statutory claims and any state or federal claims, that may arise out of or relate to these Terms of Sale, or any transaction conducted on the Site. All arbitration hearings shall take place in Somerset, New Jersey, USA. BY AGREEING TO ARBITRATION, THE PARTIES UNDERSTAND AND AGREE THAT THEY ARE WAIVING THEIR RIGHTS TO MAINTAIN OTHER AVAILABLE RESOLUTION PROCESSES, SUCH AS A COURT ACTION OR AN ADMINISTRATIVE PROCEEDING, TO SETTLE THEIR DISPUTES.

IN RELATION TO THE ABOVE DESCRIBED CLAIMS, DISPUTES, AND CONTROVERSIES, THE PARTIES ALSO AGREE TO GIVE UP ANY RIGHT THEY MAY HAVE (1) TO BRING A CLASS OR COLLECTIVE ACTION LAWSUIT OR CLASS OR COLLECTIVE ACTION ARBITRATION, OR PARTICIPATE IN EITHER AS A CLAIMANT, OR (2) TO CONSOLIDATE THEIR ARBITRATION WITH THE ARBITRATION OF OTHERS.

12.3. SEVERABILITY:
If any provision of these Terms of Sale is deemed ineffective or illegal by a court of comptent jurisdiction, 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 or illegal provision without delay.

13. TERMS OF PAYMENT

13.1. If not set forth differently in the applicable Payment & Delivery Terms, which are hereby expressly incorporated into and form an integral part of these T&C, the payment term is net 30 days – from date of invoice.
13.2. Delayed payments are subject to a finance charge of twelve percent (12%) per annum on all outstanding amounts (the “Late Fee”), as measured from the date that such payment first became due. Any claims or counterclaims of Customer shall not entitle Customer to any extension of the period stipulated for payment, nor shall any such claims or counterclaims serve as a set-off against or otherwise be used to justify non-payment of all amounts owed to Company by Customer.
13.3. In the event Customer is permitted by Company in writing to pay any invoice for the purchase of Products by a specified credit card, Products will not be allocated, and the Order will not be released unless and until payment is received by Company in full. Product stock and availability will not be held or confirmed until after payment is received by Company in full. If payment is not received in full within ten (10) business days from date of invoice, the respective Order will be cancelled.

14. PAST DUE PROCEDURE

If Customer’s account reaches sixty (60) days past due (ninety (90) days from date of invoice), Customer’s account will be put on immediate and automatic credit hold, all deliveries to Customer may be suspended, and Company may refrain from fulfilling any and all future Orders of Customer unless and until such time the full outstanding amount, along with all accrued Late Fees arising therefrom was credited to Company’s account.
If Customer’s account reaches ninety (90) days past due (one hundred-twenty (120) days from date of invoice), or otherwise fails to take any corrective or remedial action within such period, Company reserves its right to transfer any and all of its claims to remuneration for the invoiced Products and Late Fees arising therefrom to an outside collection agency, and further reserves its right to suspend any further business dealings with Customer indefinitely.
Customers subject to a credit hold twice during a calendar year will no longer be extended credit and shall be required to pay for all ordered Products either by credit card or by other form of prepayment acceptable to Company in its sole discretion. Company reserves the right to change terms of payment or suspend fulfillment of any Order or terminate any other agreement with respect to Products with Customer in the event that Company deems such action to be necessary based upon Customer‘s financial situation or payment history.

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.