GENERAL TERMS AND CONDITIONS
1. Price Quotes. Price offers and quotes are only valid for 10 days after submission by Kessler unless otherwise provided for by the terms of the offer or quote. Offers and quotes of availability are only valid at the time that the offer or quotation is issued for delivery as and when stated in the offer or quote. Except as provided for in this paragraph, all offers and quotes are subject to change without notice. Price quotes do not include transportation, freight, taxes, insurance, customs duties, levies, fees for licenses and certificates, disposal fees, and similar types of costs and fees, all of which shall be the responsibility of Customer.
All orders must be in standard packaging increments and may be subject to a minimum order requirement for new Customers. Details are available upon request.
In the event that an accepted purchase order or other sales contract provides for product delivery(ies) more than 30 days after the date of acceptance, prices set forth in such purchase order or sales contract are subject to increase if either (x) Kessler receives price increases from its supplier(s) of more than 5%, or (y) exchange rates between the US Dollar and the Swiss Franc (or other currency connected with the supply chain for the product in question) change by more than 5% from the date of acceptance of such purchase order or other sales contract.
2. Scope of Order. Customer is responsible for clearly and accurately describing the goods being ordered from Kessler. In any event (with the exception of orders placed telephonically or through other forms of oral communication, which are addressed below), the invoice from Kessler to Customer will supersede the terms and conditions set forth in any order or purchase order from Customer, even in the case of abject error, unless Customer notifies Kessler of the error within 5 business days after Customer’s receipt of the applicable invoice.
Orders placed telephonically or through other forms of oral communication are subject to additional risk of error, which additional risk shall be borne by Customer. The invoice from Kessler to Customer will supersede the terms and conditions set forth in any such telephonic or other orally placed order, even in the case of abject error.
3. Acceptance of contract and scope of services. Orders and purchase orders are deemed to be accepted by Kessler upon the earlier of written acceptance from Kessler or shipment by Kessler to Customer. Product qualities not documented, dimensions and weights of ordered products may fluctuate slightly within the customary industrial standards. Such variations are deemed to be agreed upon insofar as they do not have a material adverse effect upon functional features of the products.
4. Delivery dates. The stated delivery dates are non-binding approximate dates. Dates set forth for delivery in any invoice or acceptance from Kessler refers to the anticipated date when goods are to be shipped by Kessler, not the date of delivery or anticipated delivery to Customer. Customer shall be responsible for its own estimates of freight and transit time, and if next business day service is required by Customer, such service must be requested by Customer in advance in writing, and acknowledged by Kessler, and the additional cost of such service will be included in the invoice to Customer.
Orders received after 2:00 Central time might be shipped the following day. Payments are processed at time of checkout for all orders. All other items will ship upon availability.
Shipment dates are automatically extended if:
a. Kessler does not receive complete details of an order on a timely basis, or the Customer subsequently modifies such details.
b. Kessler experiences delays in receiving shipments from its suppliers. Unforeseeable events occur, including, without limitation, labor conflicts and strikes, unavailability of goods and services, governmental intervention, natural disasters, and other so-called acts of g-d or force majeure.
d. Delayed Customer performance, or delayed performance of a third party, including, without limitation, Customer falling out of credit terms with Kessler or failing to pre-pay an order where Customer has no arranged credit with Kessler and pre-payment is required.
Non-compliance with the delivery deadlines shall neither entitle the Customer to a claim for damages nor to withdraw or cancel an order.
5. Terms and conditions of payment. Unless otherwise designated COD, Prepaid, Credit Card or otherwise, payments are to be sent to Kessler at its payment address as noted in the invoice, in US Dollars. Checks only constitute payment when collected. Bank charges incurred by Kessler for international payment transactions shall be reimbursed by the Customer.
Any payment that is not received when due, is subject to a late payment charge equal to 1½% per month on the unpaid balance due, which includes, without limitation all shipping and handling charges. Customer agrees to pay all collection expenses, including court costs and attorney fees, and all costs incurred by Kessler in the collection of past due invoices.
Customers that do not have established credit with Kessler will be notified the total payment due, including all shipping and handling charges, in advance of shipment if cash, credit card, certified check or money order is required for payment.
6. Reservation of title and lien rights. Kessler shall retain a vendor’s lien in all delivered products until Kessler’s receipt, in full, of the purchase price for such products, at which point the lien shall be released without further action on the part of Kessler or Customer. In furtherance of the foregoing, Customer hereby grants Kessler a security interest in all products sold to Customer by Kessler, and Kessler shall have the right to file and record any and all appropriate UCC-1 and other Financing Statements in the appropriate public records to perfect or further perfect Kessler’s lien. The security interests and liens in favor of Kessler shall extend to all products sold by Kessler, notwithstanding the fact that some orders may have been paid for.
During all periods in which Kessler has a lien on such products sold by Kessler, Customer shall maintain adequate amounts of insurance under which Kessler shall be an insured or named insured (at Kessler’s discretion), which insurance shall be maintained at Customer’s cost. Such insurance shall insure against “all risks” including, without limitation, theft, breakage, fire, water and other casualty risks.
7. Partial deliveries. Kessler shall have the right to deliver orders in multiple shipments, and Customer agrees to accept partial deliveries, and to pay for each partial delivery according to the credit terms in place with Kessler as if the partial delivery were a separate order or invoice. Credit terms for each delivery are measured from the date of shipment, not for the day that a particular order or invoice has been fully shipped.
8. Risk of Loss. Risk of loss transfers to the Customer when goods leave Kessler’s shipping facility, and as such all goods are shipped free on board at Kessler’s shipping facility, which is currently located in Dallas, Texas. Notwithstanding the foregoing, if Customer asks Kessler to hold goods purchased from Kessler in Kessler’s warehouse, the risk of loss shall pass to the customer from the date that the goods are segregated and designated to Customer, which shall be deemed to be the date of shipment for invoice and risk of loss purposes. Customer agrees to cause its insurance to cover such goods being stored for Customer by Kessler. Customer shall be responsible for insurance during transit in all cases.
9. Inspection of products and notification of defects. Customer shall check the deliveries and services provided by Kessler within a reasonable period following the time that the goods are received or services are rendered, which period of time shall not exceed 10 business days.
10. Warranty and liability for defects. Kessler’s only warranty for any product is the warranty offered by the product manufacturer. Renata’s warranty as currently in effect is set forth in attached Schedule 1, which is incorporated herein by this reference. Schedule 1 may be modified or amended from time to time to reflect changes in Renata’s warranty.
In the event that a product is found to be defective, for any reason, Kessler shall have the right, in its sole discretion, to either repair or replace the defective product, or to refund the amount that the Customer paid for such product.
If a defect exists, the Customer must take all measures required to keep possible damage to a minimum. Kessler shall not have any liability for costs that may be incurred for dismantling or assembling or for damages caused directly or indirectly by the products, use of such products or by possible defects. In particular, to the fullest extent allowable under the law, Kessler disclaims, and Customer shall indemnify, defend and hold Kessler harmless from and against all other claims, liabilities, losses and expenses related to or arising from the products sold by Kessler and/or any services supplied by Kessler, including, without limitation, consequential damages, and further damage such as the loss of expected profits or other direct or indirect damage. The indemnity provided for above shall not apply to matters solely caused by Kessler’s gross negligence or intentional misconduct.
11. Claims and Claims Processing. No returns will be accepted without prior written authorization. All shipments must be appropriately marked with a return material authorization number (RMA) which must be obtained before any goods will be accepted back for any reason. It is the policy of Kessler NOT to accept Renata products for return unless Renata confirms that the products were manufactured defectively.
Authorization may be denied, especially if the product has been removed from factory packaging, or is marked or mishandled by the customer. Determination of acceptance is at the sole discretion of Kessler, after a complete inspection of returned goods and confirmation of condition by Renata.
All returns are subject to a restocking fee unless proven defective by Renata, and in accordance with Renata’s current warranty policy. The customer recognizes that in any such case, Kessler may only be potentially liable up to the value of the goods sold by Kessler; Kessler expressly deny any associated liability, costs or expenses.
All claims of incorrect order processing or for missing or damaged merchandise must be submitted to Kessler in writing within (5) business days of receipt. Kessler may accept returns due to incorrect order processing and issue an RMA. If Merchandise is believed to have been damaged in shipping, it is the responsibility of the customer to immediately notify the freight company at the time of receipt (or promptly if concealed damage) and to file a claim with the carrier.
If a shipment of lithium batteries is damaged, all appropriate caution should be exercised according to Renata’s handling instructions (available upon request, or from Renata’s website at www.Renata.com). Credit may be issued upon receipt and inspection of returned goods and must be in original packaging. A restocking fee may apply.
12. Minimum Advertised Price. Kessler maintains minimum advertised pricing (“MAP”) for some products bearing the GemOro trademark (“MAP Products”), and an advertising and promotion policy based upon the MAP that prohibits advertising or promotion of MAP Products at prices below the applicable MAP.
With the exception of catalog print advertising directed at resellers who have valid resale permits, Customers shall not, regardless of the actual sales price, advertise (or permit any of its reseller customers to advertise) any MAP Product through any medium in any manner, including, but not limited to print, radio, television, and the internet (including, without limitation, starting bids and buy now offers) for a price that is less than the applicable MAP at any time without the express written permission of Kessler, which Kessler may withhold in its sole and absolute discretion.
For purposes of the foregoing, (i) any price that is displayable over the internet (through a web browser or otherwise), including, without limitation, prices displayed in a checkout cart or by making one or a series of clicks shall be deemed to be an advertised price for purposes of applying Kessler’s MAP based advertising and promotion policy, and (ii) in the event that one or more MAP Products are priced in conjunction with one or more other products (whether or not such other products were purchased from Kessler), through combined pricing, gifts, free products, or otherwise, the manufacturer’s suggested retail price for such other products will be subtracted from the advertised price for purposes of determining compliance with Kessler’s MAP advertising and promotion policy, (iii) offering free shipping without charge will not be considered a violation of Kessler’s MAP policy so long as the offer otherwise fully complies with Kessler’s Map policy, and (iv) in the event that Customer (or another reseller) desires to entice a potential purchaser to contact them for a lower price, the only acceptable published language that may be utilized is: “Call for price”, “Call for special pricing” and “Call for quantity discounts.”
Kessler’s sale of any MAP Product to a Customer is made under the express condition that Customer (and its reseller customers) strictly observes Kessler’s MAP advertising and promotion policy, as it exists from time to time.
In the event that a Customer (or any of its reseller customers) violates Kessler’s MAP advertising and promotion policy with respect to any MAP Product, Kessler reserves the right to increase the price that the Customer pays Kessler for the MAP Product and/or cease selling that MAP Product to such Customer and/or to cease selling any other product to such Customer (whether or not such other product is a MAP Product).
13. Invalidity. In the event that any portion of these General Terms are invalid or unenforceable, such invalidity or unenforceability shall not affect the remaining provisions of these General Terms, all of which shall be enforceable to the fullest extent permitted by law. Any provision that is invalid or unenforceable, as written, shall only be invalid or unenforceable to the minimum extent to allow the remaining portions of the provision to be enforced.
14. Amendments. Kessler reserves the right to supplement or amend these General Terms at any time.
15. Applicable law, jurisdiction, and resolution of disputes. These General Terms shall be governed by and interpreted in accordance with the internal laws of the State of Texas, without regard to conflict of law principles, including, without limitation, the Uniform Commercial Code as adopted in the State of Texas.
Any dispute between Customer and Kessler with respect to the sale of goods or services by Kessler to Customer shall be heard in Dallas County, Texas, the courts of which (both State and Federal) shall have exclusive jurisdiction and venue over such matters.
Any and all disputes arising between Kessler and Customer, which cannot be resolved through negotiation, or mediation, shall, at Kessler’s option, be resolved through binding arbitration conducted in Dallas, Texas by the American Arbitration Association (“AAA”) in accordance with the expedited commercial arbitration rules of the AAA then in effect.
16. IMPORTANT DISCLAIMER AND LIMITATION OF LIABILITY REGARDING NATURAL AND/OR LAB GROWN DIAMOND GRADING REPORTS AND CERTIFICATIONS. Laboratory Grading Reports and Certifications (“Reports”) from Sy Kessler Sales, Inc., which also does business as Kessler Lab Grown Diamonds and Kessler Lab Grown Diamonds & Moissanite, (“Kessler”) for Natural Diamonds and Lab Grown Diamonds (“Stones”).
Any Reports included with Stones that we sell has been provided by an independent, third-party laboratory. These laboratories evaluate individual Stones based upon their own established standards and provide a Report, which is an opinion on the Stone applying those standards. There are no uniform standards across laboratories for evaluating Lab Grown or Natural Diamonds. Therefore, the evaluation of a particular Stone from one laboratory may differ from the evaluation of that same Stone from a different laboratory, and different individuals working for a particular laboratory may provide different evaluations using the same standard. Additionally, two or more Stones that appear to be similar, may have different Reports, whether or not they are evaluated by the same laboratory. Due to the subjective nature of a Report, Kessler’s issuance or use of any Report should not and does not imply that Kessler agrees with, or endorses, the evaluation contained in the Report.
ADDITIONALLY, KESSLER MAKES NO REPRESENTATION OR EXPRESS WARRANTY, AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY WITH RESPECT TO LAB GROWN OR NATURAL DIAMONDS OR THE REPORTS ACCOMPANYING OR APPLICABLE TO THE LAB GROWN OR NATURAL DIAMONDS THAT IT SELLS, OR THE ACCURACY THEREOF. IN NO EVENT SHALL KESSLER OR ANY OF ITS EMPLOYEES OR AGENTS BE LIABLE TO A CUSTOMER OR ANY OTHER THIRD PARTY FOR ANY LOSS, DAMAGE OR EXPENSE, OR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, STATUTORY, SPECIAL OR PUNITIVE DAMAGES, RESULTING FROM AN ERROR IN OR OMISSION FROM, OR THE ISSUANCE OF, OR RELIANCE UPON, A REPORT, REGARDLESS OF WHETHER OR NOT THE CUSTOMER OR SUCH OTHER THIRD-PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
17. Diamond and Moissanite Memorandum Agreement. The following is the official Memorandum Agreement for SY KESSLER SALES, INC. (DBA: KESSLER LAB GROWN DIAMONDS and KESSLER LAB GROWN DIAMONDS & MOISSANITE):
The merchandise described herein is being sent to you on memorandum under the understanding that you agree to be fully responsible for covering the full stated value of the merchandise against all risks of loss or damage from all hazards, and only for examination and inspection by prospective purchasers, upon the express condition that all such merchandise shall remain the property of SY KESSLER SALES, INC. (“Owner”) and shall be returned on demand, in full in its original form.
Until the merchandise is received by us, inspected, and approved for acceptance by us, you agree to remain fully liable for the full stated value. In the event of damage or loss, whether caused by you or by another, whether or not under your control, you agree to indemnify us immediately by payment of the full stated value, which represents the extent of the actual loss and is not intended to constitute a price for the sale of the merchandise. You understand that you acquire no right, title, or interest in or to, and no right or authority to sell, hypothecate or otherwise dispose of the merchandise, or any other part thereof, by memorandum or otherwise. It is expressly understood that regardless of other transactions or prior trade customs, no credit is being extended with respect to this merchandise. A sale of any portion of the merchandise shall occur only if and when we agree, and have issued a separate invoice to you based in part on the current Rappaport Pricing on the day of invoicing, and after payment has been received by us. Any subsequent sale of any specific portion of the merchandise shall not affect the terms hereof with respect to any other portion of the merchandise. Receipt of the merchandise constitutes your agreement to the foregoing terms, which represent the entire contract with respect to the merchandise described herein. Until returned, you are holding the merchandise in trust for the sole benefit of Owner. You have no legal authority to transfer title, and no right to transfer physical possession of the merchandise without first obtaining Owner’s written consent. The understanding set forth herein cannot be varied by oral statements or dealings with respect to other merchandise or any contrary custom of trade. This is not an invoice or bill of sale.
(from and after January 2004)
‘Renata’s warranty period commences upon receipt of the delivery to the Customer and runs for six (6) months. It primarily applies to the features guaranteed in the confirmation of order or the specifications for products. It covers all defects that are proven to be attributable to defective material or manufacturing defects. Warranted characteristics are solely those expressly described as warranted characteristics in the confirmation of order or in the specifications for products. The warranty applies at most up to the expiration of the warranty period. If an acceptance test is agreed upon the warranty is deemed satisfied if proof of the respective characteristics is furnished on the basis of such a test.
‘The following shall, in particular, be excluded from Renata’s liability: all damage which is not proven to have been caused as a result of poor material, defective material or faulty implementation, for example as a result of natural wear and tear, faulty maintenance, non-observance of operating instructions, excessive use, unsuitable machines and equipment, chemical or electrolytic influences or as a result of other reasons which are not the responsibility of Renata. The Customer shall have no rights and claims as a result of defects pertaining to material, construction, or implementation and as a result of the lack of warranted characteristics apart from those expressly stated in these General Terms and Conditions of Sale.’