GIA/Emerald/G/SI2/0.9Ct

BIDDER AGREEMENT-Terms and Conditions with DIAMOND N JEWELRY AUCTIONEERS, INC. (“the Company”): The Bidder acknowledges and agrees to the following: 1 The Company, nor any consignor, as applicable, make any representations and or warranties of any kind or nature with regard to the property being sold or its value, and in no event shall be responsible for the correctness of description, genuineness, provenance, authenticity, authorship, attribution, and or completeness, estimates of value or condition of the property. All appraisals, estimates or evaluations provided are solely for the convenience of the bidder and this Company does not make any warranties of any kind relating to them. Appraisals may include valuations that reflect the full, higher price at retail of an item in a specific geographic region. The term estimates or estimated value as used herein may be an arbitrary value and may not represent an actual retail value or insured replacement value or cost of similar goods. Also no appraised value should be considered to represent the actual resale value, insurance replacement value, or cost of similar goods. No statement whether oral or written shall be deemed to be such a warranty or representation, or any assumption of responsibility in no circumstances will a vastly different appraisal or estimate of any third party given on behalf of a purchaser in any Company conducted auction be grounds for a return, cancellation or refund. All measurements given are approximate and within industry standards and customs. 2 All items are sold AS IS, WHERE IS, WITH ALL FAULTS, ALL SALES ARE FINAL. NO REFUNDS AND NO EXCHANGES ARE ACCEPTED. THE COMPANY, AND ANY CONSIGNOR AS APPLICABLE, DISCLAIM ANY AND ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. NO WARRANTIES ARE MADE THAT ANY OF THE MERCHANDISE COMPLIES WITH ANY APPLICABLE GOVERNMENTAL RULES, REGULATIONS OR ORDINANCES OF ANY KIND OR NATURE WHATSOEVER. All items are available for inquiries prior to bidding. Written and oral descriptions are the opinions of this Company and should in no way be construed as a guarantee of any kind as to authenticity, age, condition, material or any other feature of items being sold. The Company believes that to the best of its knowledge information presented in any auction has come from reliable sources. However, such information is presented solely for the convenience of the prospective purchasers. The Company attempts to catalog every lot correctly and will attempt to point out any defects but will not be responsible or liable for the correctness of the catalog or other descriptions of the lot. It is the responsibility of the prospective bidders to examine all items in which they have an interest. By placing a bid, in any capacity, the bidder signifies that he/she has examined the items as fully as can be done to his/her satisfaction and have asked questions and received answers from the Company that are deemed adequate. If the bidder requires absolute certainty in all areas of authenticity, and the results of the evaluation leave uncertainly in the bidder’s mind, do not bid on the lot in question. The Company is not affiliated with any government entity and not all of the items sold were seized. Items sold by us are sourced from multiple channels and sources and there are no assurances that any of the items being sold have been seized. The Company is not authorized dealers of Rolex, Cartier or other watch brands that are sold at auction. We carry mostly pre-owned watches from secondary markets in exceptionally excellent condition. We guarantee you that the timepieces we sell are all authentic, unless otherwise stated where there are custom diamond parts including diamond bezels, diamond dials and/or diamond bands. We do not sell replicas of any kind. Diamonds used in the custom parts of watches are of top quality. An appraisal certificate is provided for every fine timepiece or jewelry purchased. Valuation may be based between actual purchase amount and its retail list price. In some cases, the item purchased may include its Original Warranty Certificate in the case of watches and Original Laboratory Certificate in the case of diamonds. Diamond or other precious or semi -precious stone jewelry is generally appraised by independent third parties such as GIA International or other similar associations or organizations. The appraisals are not intended as any warranties or representations of fact by this Company. 3 In no event shall the Company’s liability for any breach or act or omission exceed the Purchase Price actually paid by the buyer, and in no event shall the Company have any liability under any circumstances for special, indirect, incidental or consequential damages including for loss of profits or revenue, costs of obtaining alternative goods, claims of customers of buyer or otherwise whether in contract, tort, negligence, strict liability or otherwise, arising out of or resulting from or in any way relating to the lot or its purchase price, sale, delivery or not delivery or the acts or omissions of the Company. 4 The successful bidder is the highest bid acknowledged by the Company pursuant to provision UCC-2-328 of the Uniform Commercial Code. The Company, and consignors, reserve the right to bid on any lots. Unless specifically stated otherwise, all lots are subject to reserve price that shall be hidden from bidders. The Company shall act to protect the reserve by bidding in the auction process if need. The Company may open bidding on any lot below the reserve by placing its own bid. The Company may continue to bid on behalf of itself up to the amount of the reserve, either by placing consecutive bids or by placing bids in response to other bidders. In the event of any dispute between the bidder or in the event of any doubt by the Company as to the validity of any bid, the Company will have the final discretion to determine the successful bidder or to re-offer and resell the article in dispute. If any dispute arises, after the sale, the Company’s sale record is conclusive of the event. While the Company will make every effort to guarantee accuracy, in the event of a mistake on the part of the auctioneer, and a lot is accidently declared sold by mistake of the auctioneer, the Company reserves the right to cancel the sale and relist the lot in its sole discretion. Bids may be received by the Company through the internet, telephone, facsimile or e-mail. Bidding through any of those methods are only available to pre-qualified bidders or resellers. If you desire to qualify as a qualified dealer, you may contact one of the specialists at the Company to receive an application. Approval as a qualified dealer is at the sole discretion of the Company and requires a bank approved line of credit that is reviewed and approved by the specialist at the Company. Reserves-- Some of the lots in this sale are offered subject to reserve. The reserve is a confidential minimum price below which the lot will not be sold or agreed upon by the consignor and the Company. In most cases the reserve will be set below the estimated range, but in no case, will it exceed the estimates listed. A representative of the Company will execute such reserves by bidding for the consignor. In any event and whether or not a lot is subject to a reserve, the auctioneer may reject any bid or raise the bid not commensurate with the value of said lot. PLEASE READ: This auction permits bids to be placed by the auctioneer, employees of the auctioneer or by the seller or agent of the seller in accordance with UCC 2-328, this auction is permitted to engage in this activity by providing you, the bidder, with clear notice of disclosure. 5 The bidder assumes full responsibility for the items at the fall of the hammer or expiration of time in an online auction. A bid entered by mistake on the part of the bidder is not grounds for a cancellation of the bid or sale. Each bidder is responsible for his/her own account and bids. By allowing access to another who enter a bid without your knowledge will not be rounds for a rescission of the bid or bids. Any bid made on your account will bind you on the bid in accordance with these terms and conditions. If any entity places a bid on a lot, then the person executing such bid on behalf of the entity hereby agrees to personally guarantee payment for any successful bid 6 All bids are subject to a non-refundable 18% buyer’s premium which shall be added to a successfully placed bid upon sale of each lot, and any applicable local sales tax, and shipping and handling charges that are more fully described in the section entitled “Shipping and Handling” in this Agreement. Except for promotional or special offers, the buyer’s premium will be zero plus shipping and handling. For all residents of California or shipments to California, applicable sales tax will be added to your invoice. Any bidder that represents a purchaser is personally and individually responsible for any obligations of the purchaser set forth in these terms and conditions, all purchasers acquiring merchandise pursuant to a valid Resale License will need to provide appropriate documentation for removal of state sales tax. 7 Bidder’s bid at all times represents an irrevocable offer by bidder to enter into a binding contract to purchase the lot in accordance with the specific provisions of the listing and these general terms and conditions as applicable, even if a higher bid was received by the Company. In the event that any reserve price of a lot is not exceeded by any bidder’s bid, the Company in its sole discretion with or without the knowledge of or notice to any bidder, may reduce any reserve price to an amount below the bid of bidder at any time during an auction and accept the bid made by bidder. Reserve prices are always the confidential information of the Company and are not disclosed to bidders unless specifically stated as such during bidding. Nothing contained in any listing shall be construed to disclose any reserve price. In the placing of any bid the bidder understands and agrees that the bid once accepted by the Company will be the winning bid if there is no higher bid by another bidder and if any reserve or reduced reserve is exceeded by the bid. All bids are binding, irrevocable and non-cancellable by bidder. The Company has final discretion on sale of a lot. The decision of the Company is final. In the unlikely event that we lose our internet connection or items have inappropriate data due to technical errors in the system such as images mismatched or not available, items with incorrect information, price or certificate, the Company reserves the right in its sole and absolute discretion to cancel the remainder of the auction and/or rescind all winning bids. PAYMENT: The Company accepts payment by bank wire transfers, personal or company checks, Paypal, cashier’s checks, money orders, Visa, MasterCard, Discover Card and American Express. International invoices over $15,000 US require a wire transfer as do the sale of jewelry and certain other high value items in our discretion. For items purchased on line, you will be emailed an invoice within 24 hours after the auction. The email below provides a link for you to pay immediately and securely online. It is your responsibility to contact the Company at 949-245-5163 or email at diamondnjewelry@gmail.com, if you are unable to pay through our online check out system. If you are paying by check, money order, cashier’s check or check, the Company reserves the right to hold all purchases until the check has cleared to the satisfaction of the Company and its bank. If we are prevented by fire, theft, or any other reason whatsoever from delivering any merchandise to purchaser, our liability shall be limited to the sum actually paid, by the purchaser for such property. IF IN ITS SOLE DISCRETION THE COMPANY AGREES TO REFUND A PURCHASE YOU WILL BE CHARGED A 15% RESTOCKING FEE OF THE HAMMER PRICE AND YOU WILL STILL BE RESPONSIBLE FOR SHIPPING AND HANDLING FEES AS WELL AS RETURN SHIPPING. THE PREVIOUSLY PAID BUYER’S PREMIUM IS NOT REFUNDABLE. PLEASE BID CAREFULLY AND DIRECT ALL INQUIRIES TO THE COMPANY PRIOR TO PLACING YOUR BID. 8 LIQUIDATED DAMAGES: IN THE EVENT THAT YOU BID AND ARE DEEMED THE WINNER OF ANY ITEM BY THE COMPANY BUT FAIL TO MAKE PAYMENT IN ACCORDANCE WITH THE INVOICE, OR CLAIM A DISPUTE WITH ANY THIRD PARTY PAYMENT INTERMEDIARY, SUCH AS A CREDIT CARD COMPANY YOU WILL BE ASSESSED A CHARGE OF 15% OF THE HAMMER PRICE AS LIQUIDATED DAMAGES. BY BIDDING ON ANY SUCH LOT YOU HEREBY AGREE TO THE PAYMENT OF SUCH LIQUIDATED DAMAGES AS A RESULT OF THE IRRPARABLE HARM THAT WILL BE SUSTAINED BY THE COMPANY. ADDITIONALLY, IN THE EVENT THAT A WINNING BIDDER FAILS TO MAKE ANY PAYMENTS UNDER THESE TERMS AND CONDITIONS INCLUDING THE LIQUATED DAMAGES DESCRIBED HEREIN, WE RESERVE THE RIGHT TO REPORT SUCH NONPAYMENT TO CREDITOR AND COLLETION AGENCIES IN OUR SOLE DISCRETION. 9 The Company reserve the right to reject any bid at any time, and at its sole discretion. The Company additionally reserves the right it its sole and unlimited discretion at any time prior to, during or even after the close of the auction to exclude any person or individual bid and to award any lot to the highest accepted bid. The Company reserves the right to withdraw any lot at any time before, during or after the auction without liability. 10 On the fall of the hammer or expiration of time in an online auction, ownership of the offered lot will pass to the highest bidder acknowledged by the auctioneer, subject of fulfillment by the bidder, of all the conditions set forth herein, and such bidder thereupon, assumes full risk and responsibility thereof, but not limited to, insurance, fire, theft, removal and storage or damage from any and all causes, and will pay the full Purchase Price or such part as we may require. In addition to other remedies available to us by law, we reserve the right to impose a late charge of 1.5% per month of the total Purchase Price if the payment is not made in accordance with the conditions set forth herein. If any applicable conditions are not complied with by the purchaser, in addition to other remedies available to us and the consignor by law, including but not limited to, the right to hold the purchaser liable for the total Purchase Price, we at our option may cancel the sale, retain all payments made by the purchaser, resell the property at public auction with or without reserve, and the purchaser will be liable for any deficiency costs, including handing charges, the expenses of both sales, our commissions on both sales at our regular rates, reasonable attorney’s fees, including damages and all other charges due hereunder and to reject future bids from the buyer or render such bids subject to payment of a deposit and or charge interest at 18% per annum from the date payment became due until it is received in full and funds cleared our account. The Company may also notify the buyer of an exercise of a lien over any of the buyer’s property which is in the possession of the Company and no earlier than 30 days from the date of such notice arrange the sale of such property and apply the proceeds to the amount owed to the Company or any of our affiliated companies after the deduction from sale proceeds of our standard commission rates and sale related expenses. Or alternately, commence legal proceedings to recover the Purchase Price, together with interest and the costs of such proceedings, set off the outstanding amount remaining unpaid by the buyer against any amounts which the Company or our affiliated companies may owe the buyer in any other transactions or take such other action as we deem necessary or appropriate. In the event that such a buyer pays a portion of the Purchase Price for any or all lots purchased, the Company shall apply the payment received to such lot or lots that the Company, in its sole discretion, deems appropriate. In the case of default, purchaser shall be liable for legal fees, costs and expenses associated with the attempted collection of payment from purchaser. In addition, a defaulting purchaser will be deemed to have granted us a security interest in and we may retain as collateral security for such purchaser’s obligations to us, any property in our possession owned by such purchaser. Furthermore, in the event that a purchaser fails to make any payments under these terms and conditions, a 15% charge as liquidated damages will be administered as described in Section 9. We hereby reserve the right to report such non- payment to credit and collection agencies in our sole discretion. 11 IMPORTANT NOTICE TO PROSPECTIVE BIDDERS: The Company, and consignors, reserve the right to bid on any lots. Unless specifically stated otherwise, all lots are subject to reserve price that shall be hidden from bidders. The Company shall act to protect the reserve by bidding in the auction process if need. The Company may open bidding on any lot below the reserve by placing its own bid. The Company may continue to bid on behalf of itself up to the amount of the reserve, either by placing consecutive bids or by placing bids in response to other bidders. 12 DISPUTE RESOLUTION: If any dispute arises between the bidder and the Company that cannot be resolved, then the parties agree to submit the matter to binding arbitration to be conducted under the rules, regulations and procedures of the dispute resolution process described herein and agree to the following procedures for resolution of the dispute. If either party alleges that the other party is in default under this Agreement, the dispute or allegations shall be submitted to binding arbitration in the State of California. The Company shall select a neutral arbitrator or alternative dispute resolution organization. The arbitration process shall be initiated by either party requesting arbitration which must be served upon the other by certified mail return receipt requested. Failure to participate in the arbitration is a default. In the event that an arbitration procedure is initiated by request of a bidder, the bidder shall bear the initial financial burden of fees to paid to the arbitrator to the maximum amount available by law. Each party shall simply present their case limited to a maximum of one hour for each party to the arbitrator. By bidding on a lot the bidder hereby agrees and acknowledges that it is completely waiving its rights to have the dispute heard in a court of law. The bidder agrees that the arbitrator shall have complete jurisdiction over the dispute and can issue an award to the prevailing party. Arbitration fees shall be paid by the party prevailing in the dispute or as seen fit by the arbitrator. Any award determined by the arbitrator shall be binding and the prevailing party shall be awarded full reimbursement of its actual paid fees in connection with the dispute. By participating in a Company auction, bidder specifically agrees to the dispute resolution specified in the forgoing paragraph as bidder’s SOLE means to resolve any and all disputes which may arise with the Company arising out of this Agreement and bidder’s bids. By bidding, bidder specifically agrees that will not file a dispute claim of any kind with an online venue, a credit card or any other third parties. Bidder specifically waives the right to initiate a credit card chargeback dispute on any basis of claim, and agrees that bidder will pay the Company a minimum of $300.00 plus hourly charges and costs for any such chargeback dispute opened due to the severe administrative burden of such disputes and their direct violation of the dispute provisions above. In the event that bidder violates this dispute resolution provisions, in consideration of the Company’s approval of the application of the bidder to bid in the Company’s auctions, bidder confesses judgment to fraud having been committed by bidder against the Company and further agrees that the bidder is liable to the Company for all damages, losses and costs including time charges. 13 The bidder hereby waives, releases, remises, acquits and forever discharges the Company and any consignor, and shall indemnify and hold them harmless against any claims, actions causes of action, demands, rights damages , costs, expenses or compensation whatsoever directly or indirectly known or unknown foreseen or unforeseen which the bidder now has or which may arise in the future on the account of any or in any way growing out of or connected with any defects, latent or otherwise or the physical condition of any items or lots purchased or any law or regulation applicable thereto The Company or consignor shall provide notice to bidder promptly of any such claim, suit or proceeding. 14 If any provision of these terms and conditions or any listing are void, unlawful, unenforceable under applicable law, that provision shall be modified to the minimum extent possible to comply with the applicable law or if modifications are not possible, deleted and severed from the remaining provisions. Any such modifications deletions or severing shall not affect the enforceability or validity of any of the remaining provisions herein. 15 The terms and conditions, the contents of any listing and the contractual relationship between the Company and the bidder shall be interpreted under and governed by the laws of the State of California. UNDER THE TERMS OF THIS AGREEMENT, YOU, THE BIDDER, HAVE ACKNOWLEDGED THAT THERE ARE NO REFUNDS OR EXCHANGES. IN THE EVENT THAT YOU REQUEST AND ARE GRANTED BY THE COMPANY A RETURN OR REFUND, YOU AGREE THAT YOU ARE STILL RESPONSIBLE FOR PAYING THE 15% RESTOCKING FEE BASED UPON THE HAMMER PRICE OF EACH ITEM THAT IS BEING RETURNED, LESS APPLICABLE TAXES, PLUS THE ENTIRE BUYER’S PREMIUM, AS APPLICABLE, FOR EACH ITEM AS WELL AS ALL OF THE SHIPPING AND HANDLING CHARGES. ACCORDINGLY, THE RESTOCKING FEE, BUYER’S PREMIUM AND ANY SHIPPPING AND HANDLING COSTS ARE NEVER ELIGIBLE FOR A RETURN, REFUND OR CREDIT. IN THE EVENT YOU REFUSE PAYMENT FOR A WINNING BID YOU WILL BE SUBJECT TO A 15% LIQUIDATED DAMAGE CHARGE OF THE HAMMER PRICE AS MORE FULLY DESCRIBED IN SECTION 9 HEREIN. SHIPPING AND HANDLING WILL BE HANDLED BY THE COMPANY, EXCEPT FOR MERCHANDISE WHICH WILL REQUIRE PICK UP FROM A SPECIFIC LOCATION OF SALE OR OTHER ARRANGEMENT DUE TO ITEM VALUATION, OR OTHERWISE APPROPRIATE FOR SAFETY OR CONVENIENCE REASONS. IF AN ITEM NEEDS TO BE RETURNED THE BIDDER HAS TO PROVIDE THE COMPANY WITH WRITTEN NOTICE WITHIN 7 DAYS FROM RECEIPT OF THE ITEM. WATCHES AND DIAMONDS ARE NOT ELIGIBLE FOR RETURN UNLESS AND UNTIL THE ITEM IS PROVEN TO BE NON-CONFORMING TO THE DESCRIPTION AT THE TIME OF THE AUCTION. THE COMPANY HAS THE SOLE DISCRETION TO APPROVAL ANY RETURN. ANY PERMITTED RETURNS MUST BE RECEIVED BY THE COMPANY IN THE EXACT SAME CONDITION AS WHEN SHIPPED TO THE BUYER. THERE ARE NO RETURNS ON SHIPPING CHARGES OR PREMIUMS PAID. ALL NON-CONFORMING OR UNAUTHORIZED RETURNS WILL BE REJECTED. 16 All SHIPPING AND HANDLING will be done by the Company and third party licensed shippers. CHARGES WILL BE INCLUDED IN YOUR INVOICE. ONCE PAID, THE COMPANY WILL USUALLY SHIP SO THAT THE PURCHASER WILL RECEIVE THE ITEMS WITHIN 5-12 BUSINESS DAYS. NOTE: YOU MAY NOT COMBINE PURCHASES TO AVOID SHIPPING AND HANDLING CHARGES. SHIPPING AND HANDLING CHARGES ARE SUBJECT TO CHANGE FROM TIME TO TIME BASED UPON THE THEN CURRENT RATES AND CHARGES IN THE INDUSTRY. 17 NOTICES AND DISCLAIMERS: THE COMPANY SENDS MOST BUT NOT ALL JEWELRY, WATCHES, DIAMONDS AND ACCESSORIES OUT TO A THIRD PARTY FOR APPRAISALS. ALL SUCH LOTS ARE SOLD AS IS AND MAY HAVE BEEN WORN, BEEN PREVIOUSLY REPAIRED ALTERED CUSTOMIZED OR BEEN EMBELLISHED. FOR PURPOSES OF OUR AUCTIONS, THE TERMS CUSTOM, MODIFIED, OR AFTER MARKET MAY BE USED INTERCHANGABLY. SUCH WEAR, REPAIR OR CHANGE MAY DISPLAY VARYING LEVELS OF EVIDENCE. THE BIDDER HEREBY ACKNOWLEDGES THAT THE ABSENCE OF ANY REFERENCE TO THE CONDITION OF A LOT OR ITEM DOES NOT IMPLY THE ABSENCE OF WEAR, REPAIR OR CUSTOMIZATION. WHILE THE COMPANY MAKES EVERY EFFORT TO CALL ATTENTION TO ANY ALTERED OR MODIFIED ITEM OF JEWELRY OR WATCH, THE USE OF NEW PARTS OR STONES IN ANY ITEM SHALL NOT CONSTITUTE A WARRANTY OR REPRESENTATION THAT THE ITEMS ARE ORIGINAL IN ITS ENTIRETY. THESE MODIFICATIONS OR ALTERATIONS MAY IMPAIR THE ABILITY OF THE ORIGINAL MANUFACTURER TO REPAIR SUCH ITEM OR CERTIFY THE ITEM AS AUTHENTIC. All statements and descriptions relating to such lots, including measurements, authorship, sources or origin, or other aspects are qualified opines and do not constitute a warranty or representation and are provided for identification purposes only. Not all jewelry, watches or loose stones are appraised and the appraisals are provided for bidders only in certain instances at the discretion of the Company. Appraisals, if any should be use to verify gemstone and or metal weights. The appraisals should not be used for valuation of any item. No guarantee, warranty or representation is intended by the Company in any appraisal. All dimensions and weights of such lots are approximate and are consistent with standards and practices in the industry. Condition reports are provided as a service to the prospective buyer. Bidders should take note that such descriptions are not warranties and that watches may need general service, change of battery or further repairs for which the buyer is solely responsible THIS AGREEMENT HAS AN ARBITRATION CLAUSE FOR ALL MATTERS OF DISPUTE RESOLUTION (See Section 12 herein) and a LIQUIDATED DAMAGE CLAUSE (See Section 8.)