Terms and conditions of sale
All quotes (each a “Quote”), Deposits, Purchase Orders, Order Confirmations, Order Acknowledgements, Invoices or any other form (in any media) for placing orders (each an “Order”) for the purchase of jewelry or other goods (in each instance “Goods”) from JKCO by a buyer (“Buyer”) are expressly made subject to the terms and conditions set forth herein (“Terms”). JKCO hereby objects to any additional or inconsistent terms added, or any other modifications made, by Buyer to any Order, and such additional, inconsistent, or modified terms shall be deemed material alterations within the meaning of California Uniform Commercial Code section 2207(2)(b) and shall not become a part of any Order or these Terms, or binding on JKCO, unless approved in writing by JKCO.
All prices are exclusive of shipping and handling charges, and any applicable taxes, levies, or surcharges, unless otherwise agreed to by JKCO in a Quote or Order. JKCO reserves the right, but assumes no obligation, to collect any such taxes, levies, and/or surcharges from Buyer. The Goods shall be sold and delivered from wherever the Goods are then located, and delivery of the Goods to Buyer shall be deemed to have taken place upon tender of the Goods to the shipping carrier of Buyer’s choosing, whereupon the title to and risk of loss of the Goods shall pass to Buyer.
Any Order not paid in advance shall be paid, without set-off or reduction, within fifteen (15) days of the placing of the applicable Order unless such Quote or Order provides a different due date. If, in JKCO’ judgment, reasonable doubt exists as to Buyer’s financial responsibility, or if Buyer is past due in payment of any amount owing to JKCO, JKCO reserves the right, without liability and without prejudice to any other remedies, to suspend performance, and/or decline to ship or tender the Goods order pursuant to the applicable Order, until JKCO receives payment of all amounts owing to JKCO. Buyer agrees to comply with all applicable legal obligations relating to the purchase and receipt of the Goods.
JKCO’ performance under any Quote or Order shall be suspended where prevented or hindered by causes beyond the control of JKCO, such as accidents, strikes or other labor disturbances, explosions, fire, flood, earthquake, other natural disasters, war, acts of terrorism, civil disturbance, governmental or military order, shortages, failure of JKCO’ supplier(s) to deliver goods, restrictions imposed by federal, state, local or foreign laws or regulations, Customs delays, theft, or acts of God (“Force Majeure”).
Except as otherwise set forth herein, Buyer shall have ten (10) business days from the date of delivery of the Goods to inspect the Goods to determine whether the Goods: (a) conform to the Order, or (b) are damaged, visibly defective or otherwise nonconforming under these Terms. Buyer must assert any claim for the foregoing within such ten (10) business day period by furnishing JKCO with detailed written information of such damage, nonconformity, or other defect (“Notice of Rejection”). Conditioned upon such Notice of Rejection, JKCO will, at JKCO’s option and as Buyer’s exclusive remedy, (i) in practicable, repair the nonconforming or defective Goods (the “Nonconforming Goods”), or (ii) refund the purchase price under the Order allocated to the Nonconforming Goods. In the event inspection and a Notice of Rejection are not made within such ten (10) business day period, Buyer shall be deemed to have accepted the Goods, subject to the terms herein. Except as set forth herein, no returns can be made without the prior authorization of JKCO. All returns are subject to inspection and acceptances by JKCO. When returns are accepted, they are subject to a handling and re-inspecting charge to be determined by JKCO. All returns shall be in accordance with JKCO’s specific shipping instructions. Buyer must immediately discontinue use of any item claimed to be defective. No charge by Buyer for labor or expense required to repair defective material or occasioned by it will be allowed.
JKCO hereby expressly represents and warrants only as to those matters expressly set forth by JKCO on the face of the applicable Order or on JKCO’s website under the “Warranties” page(s), in addition to the following provisions of this paragraph (the “Limited Warranty”). JKCO shall deliver the Goods, and as applicable, render any services incident to an Order (the “Services”) in accordance with the terms hereof. Each unit of Goods will reasonably conform to the attributes, characteristics, and components listed on the invoice and/or manifest for each applicable Order (collectively “Documentation”), provided, however, that JKCO may reasonably rely on the certifications of third party companies, including without limitation, GIA certifications, in the case of precious or semi-precious gemstones. JKCO will, at its own cost, repair or replace any Material Defect in a unit of Goods; provided, however, if Buyer attempts to, or elects to, repair a Material Defect independently, JKCO shall not be responsible for the cost or expense of such repair. As used herein, “Material Defect” means, a material and substantial deviation from the Documentation, provided, however JKCO may reasonably rely upon, and shall not be responsible for deviations from, certifications of third party companies, including without limitation, GIA certifications, in the case of precious or semi-precious gemstones. By way of example, Goods which are supposed to be manufactured exclusively with platinum according to Documentation, will contain a Material Defect, if accidentally manufactured with white gold in place of platinum, but Goods which incorporate GIA certified gems, for which GIA’s determinations turn out to be incorrect or incomplete, shall not contain a Material Defect. NOTWITHSTANDING THE FOREGOING, THE LIMITED WARRANTY WILL BE NULL AND VOID WITH RESPECT TO A UNIT OF GOODS, IF BUYER: (I) ATTEMPTS TO MODIFY, ALTER, OR REPAIR SUCH UNIT OF GOODS, EXCEPT WITH THE EXPRESS PRIOR INSTRUCTION OF JKCO, (II) REPLACES ANY PART OR COMPONENT OF A UNIT OF GOODS, EXCEPT PURSUANT TO THE EXPRESS PRIOR INSTRUCTIONS OF JKCO, OR USES PARTS OTHER THAN THOSE RECOMMENDED BY JKCO, OR (III) DOES NOT REASONABLY COOPERATE WITH JKCO IN CONNECTION WITH ANY CLAIM UNDER THE LIMITED WARRANTY (INCLUDING, WITHOUT LIMITATION, REFUSING TO PROVIDE PICTURES AND DESCRIPTIONS OF ANY ALLEGED DEFECT, OR REFUSAL TO RETURN TO JKCO OR ALLOW ACCESS TO THE ALLEGEDLY DEFECTIVE UNIT BY JKCO OR ITS AGENTS).
Except for the limited warranty described above, the Goods (and as applicable, Services) are sold and provided to buyer “AS-IS.” JKCO makes no other warranties, and expressly disclaims all warranties, written or oral, express, implied, collateral, or statutory, of any kind, with respect to the Goods and Services, including, without limitation, including, without limitation, warranties of merchantability and fitness for a particular purpose, any warranties arising from trade usage, course of dealing or course of performance, and any warranties regarding, as to, or in connection with, provenance, literature or documentation, physical or visual condition, size, quality, accuracy, state of repair or restoration, historical relevance, or exhibition history of the Goods.
To the fullest extent permissible pursuant to applicable law, in connection with any Quote, Order, or other dealings with a Buyer or prospective Buyer, JKCO disclaims all liability, and assumes no liability, based on any legal theory whatsoever, for any loss or damages of any kind, including, without limitation, direct, indirect, incidental, punitive, special, consequential or exemplary damages (even if JKCO has been advised of the possibility of such damages). To the extent that the foregoing limitation of liability limited or restricted by applicable law, the maximum liability of JKCO to Buyer arising out of or in connection with any Order shall be limited to the amount actually paid by Buyer to JKCO under such Order.
No action against JKCO for breach of any Order, Quote, or these Terms may be brought more than one (1) year after the cause of action accrues.
Except for the certificates (if any) specifically referred to in an Order with respect to specific Goods, any description of the Goods on JKCO’s sales or promotional materials, or any other correspondence, is for the sole purpose of identifying the Goods, is not a part of the basis of the bargain, and does not constitute a warranty that the Goods shall conform to that description. The use of any sample, catalogue entry, illustration, or other model in connection with a sale for illustrative purposes only, is not part of the basis of the bargain, and is not to be construed as a warranty that the Goods will conform to the sample. Any affirmation of fact or promise made by JKCO is not part of the basis of the bargain and shall not constitute a warranty that the Goods will conform to the affirmation or promise. No sales personnel, employees, agents or representatives of JKCO and no third parties are authorized to make any representation, warranty or covenant, whether in writing or orally, on behalf of JKCO, other than the limited warranty above. Buyer acknowledges JKCO has made its Quotes, and entered into any applicable Orders, in reliance on the limitations of liability and the disclaimers of warranties and damages set forth in these Terms, and that the same form an essential basis of the bargain between the parties. The parties agree that the limitations and exclusions of liability and disclaimers specified in these Terms will survive and apply even if found to have failed of their essential purpose.
An Order or any confirmatory writing hereunder may be executed in one or more counterparts, including electronic or PDF counterparts, each of which shall constitute an original and together which shall constitute one and the same instrument, further, acceptance of a Quote, and placement of an Order shall be deemed express acceptance these Terms and such Order. A Quote and Order (into which a Quote shall merge, upon execution of an Order), together with these Terms and any applicable bill or bills of sale, shall constitute the entire agreement under which JKCO is supplying the Goods for sale to Buyer. No other terms, condition, or understanding, whether oral or written, shall be binding upon JKCO, unless concurrently herewith or hereafter made in writing and signed by JKCO’ authorized representative. No waiver of any term, provision, covenant or condition of these Terms by JKCO, whether by conduct or otherwise, in any one or more instances, shall be deemed or construed as a further or continuing waiver of any such term, provision, covenant or condition or as a waiver of any other term, provision, covenant or condition hereof. The rights, duties, agreements and obligations hereunder, or any portion thereof, shall be binding upon and inure to the benefit of JKCO and Buyer and their respective successors and assigns. California law, without regard to conflict or choice of law principles, shall govern the construction and interpretation of these Terms and any Orders, with venue for any action, suit, or other proceeding having situs in Los Angeles County (whether state or federal courts), and the parties expressly intend to opt-out of any other governing law or jurisdictional authority to the extent an opt-out is deemed necessary. If any provision of these Terms or an Order, as applied to any party or to any circumstance shall be found by a court of competent jurisdiction to be void, invalid or unenforceable, the same shall in no way affect any other provision of these Terms, together with the other documents expressly referred to herein constituting an order, the application of any such provision in any other circumstance, or the validity or enforceability of these Terms or an Order, and any provision that is found to be void, invalid or unenforceable shall be curtailed and limited only to the extent necessary to bring such provision within the requirements of the law.
NON-REFUNDABLE NATURE OF DEPOSIT. THE PARTIES ACKNOWLEDGE AND AGREE THAT ANY DEPOSIT WILL BE WHOLLY NON-REFUNDABLE TO BUYER FOR ANY REASON WHATSOEVER, AND (I) JKCO HAS QUOTED ITS RATES AND ENTERED INTO THIS AGREEMENT IN RELIANCE ON NON-REFUNDABLE NATURE OF THE DEPOSIT, (II) IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE DAMAGES WHICH JKCO MAY SUFFER IF A BUYER ATTEMPTS TO CANCEL OR WITHDRAW AN ORDER, AND THE DEPOSIT SERVICES AS A REASONABLE ESTIMATE OF THE TOTAL NET DETRIMENT THAT JKCO WOULD SUFFER IN THE EVENT THAT BUYER DEFAULTS AND FAILS TO COMPLETE THE PURCHASE UNDER AN ORDER.