Standard Terms and Conditions of Sale of Messika USA INC

 

These terms and conditions of sale (“Agreement”) govern any sale of products (“Product” or “Products”) by Messika USA Inc. and its affiliates (collectively, “Seller”) to you as the information is provided on the Order Form (“Buyer”). Buyer’s order of Products (“Order”) from Seller shall be deemed to constitute acceptance of the terms and conditions contained herein and prevail over any other document delivered by Seller and/or any terms and conditions of purchase issued by Buyer, which are expressly excluded. Any modification from these terms and conditions of sale must be agreed upon in writing by Seller. This Agreement shall be applicable whether or not they are attached to or enclosed with the Order or the Products to be sold.

 

  1. CONDITIONS FOR DISTRIBUTION.

Buyer must be designated as “Authorized Reseller” by Seller. As such, Buyers become business partners of Seller. Authorized Resellers can ONLY sell the Products to consumers and within its authorized point of sale. Sale of Products to any other resellers, including but not limited to wholesalers or other Authorized Resellers shall be expressly forbidden.

 

  1. ORDERS.

All Orders must be placed in writing by Buyer and are subject to acceptance by Seller. An Order becomes final once it has been accepted by Seller and a confirmation has been sent by Seller. Orders may not be cancelled, changed or rescheduled without Seller’s written consent. Seller reserves the right to charge Buyer for any additional costs incurred in the cancellation, change or rescheduling or an Order and will inform Buyer of such additional costs. Seller may designate certain Products as non-cancelable, nonreturnable (“NCNR”). Seller reserves the right to cancel an Order, in whole or in part, if Buyer has failed to meet some or all of its financial obligations, and specifically if Buyer has failed to pay for all or part of any previous or current Orders. Seller also reserves the right to cancel an Order, in whole or in part, if: (i) the Order has been transferred to a third party without Seller’s approval; (ii) Buyer has infringed Seller’s intellectual property rights or engaged in unfair competition; (iii) Buyer did not accept delivery of products ordered 30 days after having been informed by Seller of their availability and (iv) Buyer has materially breached its contractual obligations to Seller pursuant to this Agreement and/or an Order.

 

  1. DELIVERY.

Seller reserves the right to propose the use of its preferred carrier to Buyer, the charge of which can be quoted in advance. All Products are transported at Buyer’s risk. Buyer will bear the costs of any shipment. In the case of damage to the Products during shipping, Buyer assumes responsibility for filing a claim with the carrier and shall do so in writing by registered mail, along with notice of receipt from the goodscarrier, within seventy-two hours (3 days) of receiving the Products. Deliveries of Products are subject to availability and receipt of Order. Delivery of total or partial Orders to Buyer are acceptable. Delivery dates are indicated as accurately as possible but are subject to variations due to availability and transportation methods. Late deliveries do not render Seller accountable for the payment of damages, nor permit the cancellation in whole or in part of pending Orders. This will only result in the reimbursement of any down-payment, if any, received by Seller, from Buyer and will not lead to any other payment of allowances or damages from Seller to Buyer. Seller’s obligation to deliver the Products to Buyer shall be suspended in the event of a delay of payment, even if no formal demand for payment had been made on Buyer. All deliveries will be made to the shipment address indicated on Buyer’s purchase order. Seller’s delivery dates are estimates only and Seller is not liable for delays in delivery or for failure to perform due to causes beyond the reasonable control of Seller, nor shall the carrier be deemed an agent of Seller. A delayed delivery of any part of an order does not entitle Buyer to cancel other deliveries. If delivery cannot be made due to Buyer error, return fees shall be borne by Buyer.

 

  1. PRICE AND PAYMENT.

All Orders issued shall be made pursuant to the wholesale price lists in force on the date the Order. The Products are provided at the prices in effect at the time an Order is placed. All taxes to be paid or any other service charges according to USA regulations, or the rules and regulations of any country imported to or involved in transit are the responsibility of Buyer. In the event of payment delays or irregularities by Buyer, Seller shall be entitled to cancel the pending Order and any subsequent Orders and demand immediate payment of outstanding dues. Seller may require full payment for the Products, or equivalent financial security, for payment at any time prior to the receipt of the Products by Buyer if Seller has reasonable grounds for insecurity with respect to payment by Buyer. Seller reserves the right to suspend

its delivery obligations in the event Buyer falls behind in its payments on Orders. Failure to pay any invoice when due may result in the invoice being turned over to collections, in addition to Buyer incurring interest on all late payments at the rate of eighteen percent (18%) per annum or the highest rate allowed by law. Interest shall accrue from the due date mentioned on the invoice until payment has been fully settled. If Buyer fails to pay an invoice when due, or if Buyer defaults, breaches or repudiates these terms or any other agreement with Seller or if Buyer becomes insolvent, Seller shall have the right to cancel all Orders and/or any other agreements with Buyer, in which event Buyer shall be liable for any and all damages to Seller, including reasonable attorneys’ fees and expenses. In the event that an overdue invoice is turned over to collections, Buyer agrees to pay all attorneys’ fees and collection costs associated therewith. Regarding the cancellation of the sale, Seller may demand the return of Products sold, or a monetary amount of equal value, taking into account any damages that may have been incurred by the resolution of the sale. Buyer will be required to refund all expenses incurred by Seller, including all legal fees should legal representation and/or action be deemed necessary by Seller. Under no circumstance may payments be suspended or used as offset, without prior written consent from Seller. Any partial payment will first be deducted from the charges due as a result of the unmade payments and then from the most overdue payment. All prices and payments shall be in US dollars or any other currency mutually agreed with the Client. The transfer by Buyer of all or substantially all of the assets of its business will render any amounts due to Seller immediately payable.

 

  1. RETURNS, REFUNDS AND EXCHANGES.

Products may only be returned and/or exchanged upon express written approval by the Seller. All complaints concerning defects of Products, errors or nonconformities, visible upon reasonable examination, must be sent in writing to Seller within seventy-two hours (3 days) of the Products’ arrival. Buyer is responsible for providing evidence of any such errors or nonconformities. Such failure by Buyer to give timely written notice shall constitute an irrevocable acceptance of Products and an admission that they fully comply with all the terms, conditions, and specifications of this Agreement. By requesting return and/or an exchange of Products to Seller, Buyer certifies that the Products were purchased from Seller and there has been no substitution of the Products from another supplier, distributor or other source of the Products. Such Products must be returned in new, unused condition and in their original packaging unless otherwise permitted by Seller. Seller shall, in its sole discretion, replace the Buyer’s Products, credit Buyer’s account in the amount of the Products (at a price to be prior

determined by Seller) and/or return the Products. Buyer shall bear shipping costs of any returned Product. Non-cancelable and Non-Returnable Products are identified on the Order.

 

  1. LIMITED WARRANTY.

The disclaimers, exclusions, and limitations of liability under this Agreement will not apply to the extent prohibited by applicable law. Buyer uses any Products at his or her own discretion and risk. Buyer will be solely responsible for, and Seller disclaims, any and all loss, liability or damages resulting from use of a Product, or the use of a Product by a third party.

EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL IMPLIED WARRANTIES, TERMS AND CONDITIONS (WHETHER STATUTORY OR OTHERWISE) ARE EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. IN PARTICULAR, SELLER MAKES NO WARRANTY RESPECTING THE MERCHANTABILITY OF THE PRODUCTS OR THEIR SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS AND WARRANTIES AGAINST LATENT DEFECTS.

 

  1. LIMITATION OF LIABILITY.

BUYER SHALL NOT BE ENTITLED TO, AND SELLER SHALL NOT BE LIABLE FOR, LOSS OF PROFITS OR REVENUE, PROMOTIONAL OR MANUFACTURING EXPENSES, OVERHEADS, BUSINESS INTERRUPTION COST, INJURY TO REPUTATION OR LOSS OF BUYERS, PUNITIVE DAMAGES, LOSS OF CONTRACTS OR ORDERS OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE. BUYER’S RECOVERY FROM SELLER FOR ANY CLAIM SHALL NOT EXCEED THE PURCHASE PRICE PAID FOR THE AFFECTED PRODUCTS IRRESPECTIVE OF THE NATURE OF THE CLAIM WHETHERIN CONTRACT, TORT, WARRANTY, OR OTHERWISE. BUYER WILL INDEMNIFY, DEFEND AND HOLD SELLER HARMLESS FROM ANY CLAIMS BASED ON (a) SELLER’S COMPLIANCE WITH BUYER’S DESIGNS, SPECIFICATIONS, OR INSTRUCTIONS, (b) MODIFICATION OF ANY PRODUCTS BY ANYONE OTHER THAN SELLER, or (c) USE IN COMBINATION WITH OTHER PRODUCTS.

 

  1. USE OF PRODUCTS.

Unless otherwise noted, Products are to be used solely as jewelry. If Buyer uses or sells the Products for any other use then its intended purpose: (1) Buyer acknowledges that such use or sale is at Buyer’s sole risk; (2) Buyer agrees that Seller and the manufacturer of the Products are not liable, in whole or in part, for any claim or damage arising from such use; and (3) Buyer agrees to indemnify, defend and hold Seller and the manufacturer of the Products harmless from and against any and all claims, damages, losses, costs, expenses and liabilities arising out of or in connection with such use or sale.

 

  1. FORCE MAJEURE.

Seller is not liable for failure to fulfill its obligations for any accepted Order or for delays in delivery due to causes beyond Seller’s reasonable control including, but not limited to, natural or artificial disaster, riot, war, strike, delay by carrier, shortage of Product, acts or omissions of other parties, acts or omissions of civil or military authority, Government priorities, changes in law, material shortages, fire, strikes, floods, epidemics, quarantine restrictions, acts of terrorism, delays in transportation or inability to obtain labor, materials or Products through its regular sources, which shall be considered as an event of force majeure excusing Seller from performance and barring remedies for non-performance. In an event of force majeure condition, Seller’s time for performance shall be extended for a period equal to the time lost as a consequence of the force majeure condition without subjecting Seller to any liability or penalty. Seller may, at its option, cancel the remaining performance, without any liability or penalty, by giving notice of such cancellation to Buyer.

 

  1. BRAND IMAGE AND INTELLECTUAL PROPERTY.

Buyer undertakes not to modify the presentation of the Products supplied by Seller; to present and sell the Products under the trademark affixed by Seller, to the exclusion of any other name or trademark; and to keep the Products in good condition until they are sold. Products may only be sold in their original packaging and in compliance with the trademark image, to the exclusion of any commercial practice which may affect Seller’s brand image. Seller holds all intellectual property rights in the Products. Buyer does not acquire any property right in Seller’s trademarks and distinctive signs. Seller grants Buyer the right to use Seller’s trademarks solely for the purpose of implementing Buyer’s obligations and particularly for the promotion and commercialization of the Products. Buyer agrees not to infringe the intellectual

property rights of Seller.

 

  1. CONFIDENTIALITY.

Buyer shall not use, disseminate or disclose, directly or indirectly, to third parties any information, customer lists, marketing materials, development, products, trade secrets, industrial practices, secrets, know-how or other proprietary information of Seller. Buyer is prohibited from reproducing in whole or in part the goods purchases from Seller or goods (including models or samples) seen at the time of purchase. Buyer is also prohibited from transmitting to third-parties information that would enable these goods to be reproduced in full or in part. Buyer undertakes to keep confidential and not to use for its own purposes (other than fulfilling its obligations under this Agreement) any information of a confidential nature relating to Seller, including, without limitation, any trade secrets, confidential or proprietary technical information, trading and financial details and any other information of commercial value, which may become known to it under this Agreement. This article shall not apply to any such information which Buyer can show is public knowledge other than as a result of disclosure by Buyer or was already known to Buyer at the time of disclosure without any breach by the source of such information of any confidentiality obligation.

 

  1. COMPLIANCE WITH REGULATORY AND CONTRACTUAL STANDARDS.

All diamonds purchased by Seller are from legitimate sources not involved in the funding of conflicts in accordance with United Nations resolutions. Seller hereby guarantees that these diamonds do not originate from conflict zones, a guarantee based on its knowledge and/or written guarantees from the supplier of its diamonds.

 

  1. SURVIVAL.

In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect.

 

  1. WAIVER.

Failure or delay by us to enforce any this Agreement will not constitute a waiver of our rights against you and does not affect our right to require future performance thereof.

 

  1. GENERAL.

The laws of the New York will exclusively govern any dispute between Seller and Buyer, Buyer may not assign this Agreement without the prior written consent of Seller. Seller or its affiliates may perform the obligations under this Agreement. This Agreement is binding on successor and assigns. Products, including software or other intellectual property, are subject to any applicable rights of third parties, such as patents, copyrights and/or user licenses. This Agreement and the operative provisions of any quotation issued by Seller and any Order issued by Seller, sets forth the entire agreement and understanding among the parties as to the subject matter hereof, and merges and supersedes all prior discussions, agreements, and understandings of every and any nature among them. No proposal, purchase order, order confirmation, acceptance, or any other document provided by either Party to the other, nor any electronic click-wrap, terms of use or similar online consent or acceptance language accompanying shall be deemed to amend the terms hereof and any such contradictory or additional terms shall be ineffective. No party shall be bound by any condition, definition, warranty, or representations, other than as expressly set forth or provided for in this Agreement, or as may be, on or subsequent to the date hereof set forth in writing and signed by the party to be bound thereby. In the event of any ambiguity or conflict between any of the terms and conditions contained in this Agreement and the terms and conditions contained in an Order, the terms and conditions of this Agreement shall control, unless the parties have expressly provided in such Order that a specific provision in this Agreement is amended, in which case this Agreement shall be so amended, but only with respect to such Order. The Order or this Agreement may not be amended, supplemented, changed, or modified, except by agreement in writing signed by the parties to be bound thereby.