1. Acceptance of Terms
By accepting these Terms, you represent that you are 18 years of age or older and that, if you have accepted these Terms on behalf of any person or entity, you represent that you have legal authority to do so and that such person or entity agrees to be responsible to us if you or such person or entity violates these Terms.
If you do not agree to every provision of these Terms, you may not access, browse or use the Site or order, receive, or use products made available through the Site (the “Products”) or any services made available through the Site (collectively, the “Services”).
By accessing or using the Site, you represent and warrant that you have not been previously suspended or removed from the Site or engaged in any activity that could result in suspension or removal from the Site.
These Terms may be revised at any time for any reason, and Charles & Colvard may provide you notice of these changes by any reasonable means, including by providing notice through the Site. You can determine when we last updated the Site by referring to the “Last Updated” legend at the top of these Terms. We strongly recommend that you periodically visit this page of the Site to review these Terms. If you do not agree to the revised Terms, you may not access or use the Site or order, receive or use Products or Services made available through the Site.
In order to access and use certain areas or features of the Site, you will need to register for a Charles & Colvard account. Each registration is for a single user only.
By creating a Charles & Colvard account, you agree to (a) provide accurate, current and complete account information, (b) maintain and promptly update, as necessary, your account information, (c) maintain the security of your account credentials, (d) be responsible for the acts or omissions of any third party who has authority to access or use the Site on your behalf, and (e) immediately notify us if you discover or otherwise suspect any security breaches related to the Site or your account. Any changes to your registration information may be made by logging into your account and correcting the relevant information. If you provide information that is untrue, inaccurate, not current or incomplete, we may suspend or terminate your account and refuse any and all current or future use of the Site.
When creating a Charles & Colvard account, you also request and authorize Charles & Colvard to use your personal information to communicate with you and you will be asked to consent to receive electronic communications from Charles & Colvard (e.g., via email or by posting notices to the Site). These communications may include notices about your account (e.g., payment authorizations, password changes and other transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy. At the time that you create your Charles & Colvard account, we will offer you the opportunity to receive promotional communications via email, including, but not limited to, newsletters, special offers, surveys and other news and information we think will be of interest to you. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided therein.
2. Forward-Looking Statements
Statements included on the Site and the documents available through the Site may contain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. Statements expressing expectations regarding our future and projections relating to products, sales, revenues and earnings are typical of such statements and are made under the Private Securities Litigation Reform Act of 1995. These forward-looking statements include, but are not limited to, statements about our plans, objectives, representations and contentions and are not historical facts and typically are identified by use of terms such as “may,” “will,” “should,” “could,” “expect,” “plan,” “anticipate,” “believe,” “estimate,” “predict,” “continue” and similar words, although some forward-looking statements are expressed differently.
All forward-looking statements are subject to the risks and uncertainties inherent in predicting the future. You should be aware that, although the forward-looking statements included herein represent management’s current judgment and expectations, our actual results may differ materially from those projected, stated or implied in these forward-looking statements as a result of many factors including, but not limited to, our dependence on consumer awareness, acceptance and growth of sales of our products resulting from our strategic initiatives; our dependence on a limited number of customers; the impact of the execution of our business plans on our liquidity; our ability to fulfill orders on a timely basis; the financial condition of our major customers and their willingness and ability to market our products; dependence on our exclusive supply agreement with Cree, Inc. for the sole supply of the raw material; intense competition in the worldwide jewelry industry; our ability to maintain compliance with the continued listing requirements of The Nasdaq Stock Market LLC; our current wholesale customers’ potential perception of us as a competitor in the finished jewelry business; quality control challenges from time to time that can result in lost revenue and harm to our brands and reputation; general economic and market conditions; the risks of conducting business in foreign countries; the risk of disruption of our operations by natural disasters; the pricing of precious metals, which is beyond our control; the potential impact of seasonality on our business; our ability to protect our intellectual property; the risk of a failure of our information technology infrastructure to protect confidential information and to prevent security breaches; the impact of significant changes in e-commerce opportunities, technology or models; the failure to evaluate and integrate strategic opportunities; the possible adverse effects of governmental regulation and oversight; and the impact of anti-takeover provisions included in our charter documents, in addition to the other risks and uncertainties described in our filings with the Securities and Exchange Commission (“SEC”), including our most recent earnings release and our most recent Form 10-Q or Form 10-K. Forward-looking statements speak only as of the date they are made. We undertake no obligation to update or revise such statements to reflect new circumstances or unanticipated events as they occur except as required by the federal securities laws, and you are urged to review and consider disclosures that we make in the reports that we file with the SEC that discuss other factors relevant to our business.
3. Payment and Billing Information
By providing a credit card or other payment method that we accept, you represent and warrant that you are authorized to use the designated payment method and that you authorize us (or our third party payment processor) to charge your payment method for the total amount of your purchase (including any applicable taxes and other charges) (collectively, as applicable, an “Order”). If the payment method cannot be verified, is invalid or is otherwise not acceptable, your Order may be suspended or cancelled. You must resolve any problem we encounter in order to proceed with your Order. In the event you want to change or update payment information associated with your Charles & Colvard account, you can do so at any time by logging into your account and editing your payment information.
4. Pricing and Availability
All prices are shown in U.S. dollars, and applicable taxes and other charges, if any, are additional. We reserve the right to adjust prices as we may determine in our sole discretion, at any time and without notice. We will not, however, be able to notify you of changes in any applicable taxes.
While we make every attempt to avoid errors in pricing and product information, some information (including prices) may be inaccurately displayed on the Site due to system or typographical errors. We reserve the right to correct any and all errors in pricing or product information when they occur, and we do not honor inaccurate or erroneous prices. If a Product’s listed price is lower than its actual price, we will, at our discretion, either contact you for instructions before shipping the product or cancel the Order and notify you of such cancellation. If the Order has been shipped, you agree to either return the Product (at your own expense) or pay the difference between the actual and charged prices.
All of our Products and Services are subject to availability, and we reserve the right to impose quantity limits on any Order, to reject all or part of an Order and to discontinue offering certain Products and Services without prior notice.
Sales tax is applied in accordance with individual state regulations. Appropriate sales tax charges will appear on the Order page during checkout.
All items entering a foreign country are subject to customs inspection and assessment of duties and taxes in accordance with each country’s applicable laws. You are solely responsible for all duties and taxes incurred. Charles & Colvard cannot determine these fees during the checkout process. For more information, please contact your local customs office.
In the event that you refuse delivery of the shipment, you are solely responsible for payment of all return shipping charges, duties and taxes; in this case, return shipping charges, duties and taxes will be billed to you in accordance with the method of payment you selected in the checkout process.
6. Shipping and Handling
Separate charges for shipping and handling will be shown on the Order page during checkout. Please note that we do not ship to hotels or Post Office boxes. We require a signature upon delivery of all shipments.
You agree to pay any shipping and handling charges shown at the time you make a purchase. Shipping is handled by a third party courier. Actual delivery dates may vary. You agree that you will not obtain, or direct shipment of, a Product for export. All Products purchased from us are made pursuant to a shipment contract. This means that title to and the risk of loss of such Products passes to you upon our delivery of the Product to the third party courier.
7. Product Images
We have attempted to accurately depict the Products offered on this Site. However, because the color you see is dependent on your computer monitor, we cannot guarantee that the color you see will be accurate. The products may also appear larger or smaller than their actual size depending on your monitor. Some photographs of products may have been enlarged to show detail.
You are responsible for inspecting all Products you receive from us for any damage or other issues upon delivery.
9. No Resale
You are not permitted to resell or otherwise use the Products or Services for commercial purposes.
10. Returns and Refunds
If you are dissatisfied with any Product you purchased through the Site, you may return the Product within sixty (60) days of the date you purchased the Product by contacting 877-202-5467 and following the shipping instructions we supply; provided, that all returned Products must be unused and in their original packaging. After we receive your returned Product, we will issue you a refund for the price you paid for the Product (less any applicable shipping and handling charges).
All returns require a return authorization number. Please contact Customer Service at (877) 202-5467 to obtain your personal return authorization number.
You may use the return shipping method of your choice, at your own expense. We strongly recommend that you use a carrier that offers shipment tracking for all returns and either insure your package for safe return or declare the full value of the shipment so that you are protected if the shipment is lost or damaged in transit. You are solely responsible for any loss or damage to the Product during shipping.
Upon receipt of a returned Product, we may take up to fourteen (14) business days to process your return.
If you do not comply with the terms of this section, you will be ineligible to receive a refund. We are unable to issue refunds for Services.
In order to offer the best shopping and product-return experience to as many guests as possible, Charles & Colvard, Ltd. reserves the right to limit purchase activity or place limitations on returns if we have reason to suspect misuse of our generous returns policy (such as excessive returns, reseller activity, or fraud).
11. License to Access and Use the Site and Site Content
Unless otherwise indicated in writing by us, the Site and all content and other materials contained therein, including, without limitation, the Charles & Colvard logo and all designs (including without limitation jewelry designs), text, graphics, pictures, information, data, software, User Content (as defined in Section 1), other files and the selection and arrangement thereof (collectively, “Content”) are the property of Charles & Colvard or our licensors or users, as applicable, and are protected by U.S. and international copyright and other laws.
Subject to these Terms, you are hereby granted a personal, non-exclusive, non-transferable, non-sublicenseable license to access and make personal, non-commercial use of the Site and Content. All rights not expressly granted herein are reserved. You do not acquire any ownership interest in the Site or Content under these Terms or any other rights thereto other than to use the Site in accordance with the license granted, and subject to all terms, conditions and restrictions of these Terms.
However, such license is subject to these Terms and does not include any right to, and you shall not, directly or indirectly: (a) sell, resell or use commercially the Site or Content, (b) distribute, publicly perform or publicly display any Content, (c) modify or otherwise make any derivative uses of the Site or Content, or any portion thereof, (d) use any data mining, robots or similar data gathering or extraction methods, (e) download (other than the page caching) any portion of the Site or Content, except as expressly permitted by us, (f) use the Site to stalk, threaten or otherwise violate the rights of others, including without limitation others’ privacy rights or rights of publicity, (g) interfere with the Site or servers or networks used in connection with the Site, or (h) use the Site or Content other than for their intended purposes.
Any use of the Site or Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated by us, nothing in these Terms shall be construed as conferring any right or license to any patent, trademark, copyright or other proprietary rights of Charles & Colvard or any third party, whether by estoppel, implication or otherwise. This license is revocable at any time.
You will not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Content, and you will not reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast, sell, license or otherwise exploit the Content.
The Charles & Colvard logo, and any other Charles & Colvard product or service names, trademarks, logos or other indicia (“Marks”) that may appear on the Site, Services or Products, are the property of Charles & Colvard or its subsidiaries, affiliates or third parties and may not be copied, imitated or used, in whole or in part, without our prior written permission. Nothing contained in the Site shall be construed as granting, by implication or otherwise, any license or right to use any such Mark without the prior written permission of Charles & Colvard or such third party that may own such Mark. Your misuse of any such Mark, or any other Content, is strictly prohibited.
We implement a number of security features to help guarantee and ensure the best possible way that your information is safe. We use industry standard technologies when transferring and receiving customer data exchanged between Charles & Colvard and third parties to ensure its security. User data may be stored on servers maintained by our third party partners and subject to their security safeguards which are continuously audited, with certifications from accreditation bodies across geographies and verticals. All financial transactions are made securely.
14. User Content
You are solely responsible and liable for all data, information and other materials (“User Content”) that you submit, upload, post, email or otherwise transmit (“Transmit”) in connection with the Site. In addition, we have no control over, and shall have no liability for, any damages resulting from the use (including without limitation republication) or misuse by any third party of information made public through the Site.
You agree that you will not, and will not permit anyone else to, directly or indirectly:
Transmit any User Content that is unlawful, harmful, threatening, abusive, hateful, obscene, harassing, tortious, defamatory, libelous, slanderous, pornographic, profane, vulgar, offensive, lewd, invasive of another’s privacy or racially, ethnically or otherwise objectionable;
Transmit any User Content: (a) that you do not have the right to Transmit, under any law or contractual or fiduciary relationships, including, without limitation, any insider information or proprietary or confidential information; (b) that infringes any patent, copyright, trademark or other intellectual property right or misappropriates any trade secret or right of privacy of any third-party; (c) that constitutes unsolicited or unauthorized advertising or promotional materials, “spam,” “chain letters” or pyramid schemes; or (d) that contains any software routine, code, instruction or virus that is designed to disable, delete, modify, damage or erase software, hardware or data;
Forge headers or otherwise manipulate identifiers in order to disguise any User Content Transmitted through the Site.
Although we have no obligation to screen, edit or monitor User Content, we reserve the right, and have absolute discretion, to remove, screen or edit User Content posted or stored on the Site at any time and for any reason, and you are solely responsible for creating backup copies of and replacing any User Content you post or store on the Site at your sole cost and expense.
15. Rights in User Content
You acknowledge and agree that Charles & Colvard may disclose or use any User Content that you Transmit for purposes that include, but are not limited to: (a) enforcing these Terms; (b) complying with any laws, regulations or rules of any federal, state or local government or agency; (c) responding to claims that any User Content violates the rights of third parties; or (d) protecting the rights or property of Charles & Colvard, its customers or the public.
Separate and apart from User Content, you can submit questions, comments, suggestions, ideas, original or creative materials or other information about Charles & Colvard, the Site, our Products or Services (collectively, “Feedback”). Feedback is nonconfidential and shall become the sole property of Charles & Colvard. Charles & Colvard shall own exclusive rights, including, without limitation, all intellectual property rights, in and to such Feedback and shall be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
17. Linked Sites
We have not reviewed all of the websites linked to the Site and are not responsible for the content of any third-party pages or any other websites linked to the Site. Nothing in the Site, including, without limitation, any links to other websites, should be construed as an endorsement of any products, services or information of any other persons or companies by Charles & Colvard. Your choice to link to any other website is at your own risk, and you agree to comply with all terms and conditions relating to such websites. Charles & Colvard reserves the right not to link, or to remove the link, to a particular website at any time. Any links to third party websites are provided as a convenience to you and are neither owned nor operated by Charles & Colvard. We have no control over these linked websites and make no representations or warranties with respect to these linked websites. Your viewing and use of any third party websites is at your sole discretion and risk.
To the fullest extent permitted by applicable law, you agree to defend, hold harmless and indemnify Charles & Colvard, its subsidiaries and affiliates, business partners, contractors, clients and service providers and their respective officers, employees, agents and representatives (collectively, the “Charles & Colvard Parties”) from and against any claims, liabilities, costs or damages, including reasonable attorneys’ fees and paralegal fees through final appeals, made by any third party, relating to or arising from your use of the Site, Services, Products, any User Content that you Transmit to or through the Site, any Feedback you provide, any violation of these Terms by you or any other act or omission by you, including your violation of any rights of another, arising from your use of the Site or the Services or your use of Products purchased from this Site. You further agree that Charles & Colvard shall have control of the defense or settlement of any third party claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Charles & Colvard.
19. Product Warranty; Disclaimers
Charles & Colvard provides consumers a Limited Lifetime Warranty that Charles & Colvard Created Moissanite® jewels will maintain their brilliance and fire. This warranty does not include loss, theft, disappearance or loss of the optical properties of brilliance and fire due to incidental or intentional damage such as scraping, breakage or chipping. This warranty only applies to Charles & Colvard Created Moissanite® jewels. Charles & Colvard also provides consumers a Limited Warranty that jewelry purchased from Charles & Colvard will be free from defects in material and workmanship for a period of twelve months from the date of purchase. For the avoidance of doubt, this Limited Warranty does not cover lab grown diamond gemstones. For further details and to register the Warranty for products purchased from this Site, visit www.charlesandcolvard.com/warranty.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, CHARLES & COLVARD DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND TO THE EXTENT THAT THEY MAY BE EXCLUDED BY LAW, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT.
IN NO EVENT SHALL CHARLES & COLVARD BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING STRICT LIABILITY AND NEGLIGENCE) OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, LOSS OF INCOME OR PROFIT, LOSS OF OR DAMAGE TO PROPERTY OR CLAIMS OF THIRD PARTIES. YOU AGREE THAT FOR ANY LIABILITY RELATED TO THE PURCHASE OF PRODUCTS FROM OR USE OF THIS SITE, WHETHER IN CONTRACT, TORT (INCLUDING STRICT LIABILITY AND NEGLIGENCE) OR OTHERWISE, CHARLES & COLVARD SHALL NOT BE LIABLE OR RESPONSIBLE FOR ANY AMOUNT OF DAMAGES ABOVE THE AGGREGATE DOLLAR AMOUNT PAID FOR THE PURCHASE OF PRODUCTS UNDER THIS AGREEMENT GIVING RISE TO SUCH LIABILITY. IF YOU LIVE IN A JURISDICTION WHOSE LAWS PREVENT THE LIMITATION OF LIABILITY IN ACCORDANCE WITH THIS AGREEMENT, CHARLES & COLVARD’S LIABILITY IS LIMITED TO THE GREATEST EXTENT ALLOWED BY THE LAW OF THAT JURISDICTION.
THE SITE, THE CONTENT AND ALL PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW AND EXCEPT AS OTHERWISE PROVIDED HEREIN, NEITHER CHARLES & COLVARD NOR THE CHARLES & COLVARD PARTIES MAKE ANY REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (A) THE SITE; (B) THE SITE CONTENT; (C) USER CONTENT; (D) ANY PRODUCT OR SERVICE; OR (E) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO THE SITE. IN ADDITION, THE CHARLES & COLVARD PARTIES HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, THAT ANY RESULTS WILL BE ACHIEVED, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.
THE CHARLES & COLVARD PARTIES DO NOT REPRESENT OR WARRANT THAT THE SITE WILL BE ERROR- FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SITE, SERVICES OR THE SERVER THAT MAKES THE SITE AND SERVICES AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES. THE CHARLES & COLVARD PARTIES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE SITE OR SERVICES IS ACCURATE, COMPLETE OR USEFUL. YOU ACKNOWLEDGE THAT YOUR USE OF THE SITE AND SERVICES IS AT YOUR SOLE RISK. THE CHARLES & COLVARD PARTIES DO NOT WARRANT THAT YOUR USE OF THE SITE OR SERVICES IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE CHARLES & COLVARD PARTIES SPECIFICALLY DISCLAIM SUCH WARRANTIES. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU TO THE EXTENT SUCH JURISDICTION’S LAW IS APPLICABLE TO YOU AND THESE TERMS.
BY ACCESSING OR USING THE SITE AND SERVICES YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SITE AND SERVICES.
THE CHARLES & COLVARD PARTIES DO NOT ENDORSE CONTENT AND SPECIFICALLY DISCLAIM ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE OR OTHERWISE), INJURY, CLAIM, LIABILITY OR OTHER CAUSE OF ANY KIND OR CHARACTER BASED UPON OR RESULTING FROM ANY CONTENT.
21. Limitation of Liability; Waiver; Arbitration
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE CHARLES & COLVARD PARTIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, INCOME OR PROFITS, LOSS OF USE OR DATA, LOSS OR DIMINUTION IN VALUE OF ASSETS OR SECURITIES OR DAMAGES FOR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO THE ACCESS TO OR USE OF THE SITE, SERVICES OR CONTENT (INCLUDING, BUT NOT LIMITED TO, USER CONTENT AND LINKS TO THIRD PARTY SITES) OR THE ORDER, RECEIPT OR USE OF ANY PRODUCT OR SERVICE, OR OTHERWISE RELATED TO THESE TERMS (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM ANY CHARLES & COLVARD PARTY, OR FROM EVENTS BEYOND THE CHARLES & COLVARD PARTIES’ REASONABLE CONTROL, SUCH AS SITE INTERRUPTIONS, DELETIONS OF FILES OR EMAILS, ERRORS OR OMISSIONS, DEFECTS, BUGS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO THE CHARLES & COLVARD PARTIES’ RECORDS, PROGRAMS OR SYSTEMS), REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED) OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE).
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF THE CHARLES & COLVARD PARTIES (JOINTLY) ARISING OUT OF OR IN ANY WAY RELATED TO THE ORDER, RECEIPT OR USE OF PRODUCTS OR SERVICES PURCHASED FROM THE SITE EXCEED THE AMOUNT PAID FOR SUCH PRODUCTS OR SERVICES. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IN THE EVENT YOUR REMEDIES HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE, AND THE FOREGOING SHALL CONSTITUTE THE CHARLES & COLVARD PARTIES’ SOLE LIABILITY AND OBLIGATION IN RESPECT HEREOF, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED) OR ANY OTHER LEGAL OR EQUITABLE THEORY.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU, ON BEHALF OF YOUR HEIRS, EXECUTORS, ADMINISTRATORS, LEGAL AND PERSONAL REPRESENTATIVES, HEREBY RELEASE, WAIVE, ACQUIT AND FOREVER DISCHARGE THE CHARLES & COLVARD PARTIES FROM AND AGAINST, AND COVENANT NOT TO SUE ANY SUCH CHARLES & COLVARD PARTIES FOR, ALL CLAIMS YOU HAVE OR MAY HAVE ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS.
IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE 1542, WHICH STATES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH CHARLES & COLVARD AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
TO THE FULLEST EXTENT PERMISSIBLE BY LAW, YOU AND CHARLES & COLVARD AGREE THAT ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING IN ANY WAY TO THESE TERMS, OR THE SERVICES SHALL BE FINALLY DECIDED BY BINDING ARBITRATION UNDER THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION GOVERNING, AS APPLICABLE, CONSUMER OR COMMERCIAL DISPUTES BEFORE A SINGLE ARBITRATOR. Arbitration uses a neutral arbitrator to decide a dispute (instead of a judge or jury); arbitration allows for more limited discovery than in a court case; and the arbitration process and result is subject to very limited review by courts. In an arbitration you have the right, at your expense, to be represented by an attorney of your choosing. Arbitrators can award the same damages and relief under these Terms that a court can award under these Terms. You and CHARLES & COLVARD agree that any in-person arbitral hearing would occur in the United States in the same county and state as your billing address if a consumer dispute and otherwise in Wilmington, Delaware. CHARLES & COLVARD further agrees that your filing fee for an arbitration will be capped at the amount set by the American Arbitration Association. You agree that, by agreeing to these Terms, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and CHARLES & COLVARD are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms and the termination of your use of the Services. REGARDLESS OF THE FORUM, YOU AND CHARLES & COLVARD AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and CHARLES & COLVARD agree otherwise, the arbitrator may not join or consolidate more than one person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.
22. Modifications to the Site and Products
We reserve the right in our sole discretion to modify, suspend or discontinue, temporarily or permanently, the Site (or any features or parts thereof) or the provision of any Products or Services at any time.
23. United States Only
The Site is controlled and operated by us from the United States of America, and is not intended to subject us to the laws or jurisdiction of any state, country or territory other than that of the United States of America. We do not represent or warrant that the Site, or any part of the Site, is appropriate or available for use in any particular jurisdiction. Those who choose to access the Site do so on their own initiative and at their own risk, and are responsible for complying with all local laws, rules and regulations. We may limit the Site’s availability, in whole or in part, to any person, geographic area or jurisdiction we choose, at any time and in our sole discretion.
Notwithstanding anything contained in these Terms, we reserve the right, without notice and in our sole discretion, to terminate your right to access or use the Site and to order or receive and use the Products or Services, at any time and for any or no reason, and you acknowledge and agree that we shall have no liability or obligation to you in such event and that you will not be entitled to a refund of any amounts that you have already paid to us, to the fullest extent permitted by applicable law.
25. Governing Law and Jurisdiction
Charles & Colvard operates the Site from its offices at 170 Southport Drive, Morrisville, North Carolina 27560, U.S.A. These Terms and the transactions they contemplate, including without limitation their interpretation, construction, performance and enforcement shall be governed by the laws of the State of North Carolina, U.S.A., without reference to conflict or choice of law provisions, as applicable to contracts made and performed entirely within such State. The International Convention on the Sales of Goods, and other international treaties that are not mandatory with respect to contracts made and performed entirely in North Carolina, shall not apply. The exclusive forums for the resolution of any dispute relating to these Terms shall be the state and federal courts in Wake County, North Carolina, U.S.A., and you agree to personal jurisdiction of such courts over you with regard to any dispute relating to these Terms and agree to service of process on you by email to the address you have submitted on the Site, if any, and by any other means permitted by law.
All notices, demands or consents given from you under these Terms will be in writing and will be deemed given when delivered to Charles & Colvard at the following contact:
Charles & Colvard, Ltd.
170 Southport Drive
Morrisville, North Carolina 27560
Any notices to you may be made via either email or postal mail to the address in Charles & Colvard’s records or via posting on the Site. Please immediately report any violations of these Terms to Charles & Colvard at the contact listed above.
If any term, clause or provision of these Terms is held invalid or unenforceable, that term, clause or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause or provision or any other term, clause or provision of these Terms.
The following sections will survive the expiration or termination of these Terms and the termination of your Charles & Colvard account: all defined terms and Sections 2, 5, 6, 7, 8, 9, 10, 12, 13 through 30.
These Terms constitute the entire agreement between you and Charles & Colvard relating to your access to and use of the Site and your order, receipt and use of Products and Services. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of Charles & Colvard. No waiver of any provision of these Terms will constitute a waiver of such provision in any prior, concurrent or subsequent circumstance, and Charles & Colvard’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.
30. Procedure for Making Claims of Copyright Infringement
We expect users of the Site to respect the intellectual property rights of others. If you believe in good faith that any of the content on the Site infringes your copyright, please provide to our copyright agent the written information specified below.
An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
A description of the copyrighted work that you claim has been infringed;
A description of where the material that you claim is infringing is located on the Site;
Your address, telephone number and email address;
A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and
A statement by you, made under penalty of perjury, that the information in the notice is accurate and that you are the copyright owner, or are authorized to act on behalf of the owner, of an exclusive right that is allegedly infringed.
Charles & Colvard’s copyright agent for notice of claims of copyright infringement on the Site can be reached as follows:
Charles & Colvard, Ltd.
170 Southport Drive
Morrisville, North Carolina 27560