Terms and Conditions of Use & Sale
IMPORTANT – PLEASE CAREFULLY READ AND UNDERSTAND THESE TERMS AND CONDITIONS OF USE & SALE BEFORE ACCESSING, USING, OR PLACING AN ORDER OVER, WWW.GRAFF.COM. THESE TERMS CONTAIN DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITIES (see Sections 12 and 13). THESE TERMS FORM AN ESSENTIAL BASIS OF OUR AGREEMENT. PLEASE PRINT AND RETAIN A COPY OF THESE TERMS FOR YOUR RECORDS.
This website is operated by Graff Diamonds (New York) Inc. Throughout the site and these Terms and Conditions of Use & Sale, the terms “Graff,” “we”, “us” and “our” refer to Graff Diamonds (New York) Inc. Graff offers this website, including all information, products and services available from this site to you, the user, conditioned upon your acceptance of all terms, conditions, policies and notices stated here.
By visiting our site and/or purchasing something from us, you agree to be bound by these Terms and Conditions of Use & Sale (“Terms”), including those additional terms and conditions and policies referenced herein and/or available by hyperlink. These Terms apply to all users of the site, including without limitation users who are browsers, customers, and/or contributors of content. If you do not agree to these Terms in their entirety, you are not authorized to use the website in any manner or form whatsoever.
THIS IS A BINDING AGREEMENT. THESE TERMS TOGETHER WITH OUR PRIVACY NOTICE AND REFUND POLICY FORM A LEGALLY BINDING AGREEMENT (“AGREEMENT”) BETWEEN YOU AND GRAFF. THIS AGREEMENT GOVERNS YOUR ACCESS TO AND USE OF THE WEBSITE AND THE PRODUCTS AND SERVICES PROVIDED BY GRAFF, ANY ORDER YOU PLACE THROUGH THE WEBSITE, BY TELEPHONE, OR OTHER ACCEPTED METHOD OF PURCHASE AND, AS APPLICABLE, YOUR USE OR ATTEMPTED USE OF THE PRODUCTS OR SERVICES OFFERED ON OR AVAILABLE THROUGH THE WEBSITE.
THIS AGREEMENT CONTAINS ARBITRATION AND CLASS ACTION WAIVER PROVISIONS THAT WAIVE YOUR RIGHT TO A COURT HEARING, RIGHT TO A JURY TRIAL, AND RIGHT TO PARTICIPATE IN A CLASS ACTION. ARBITRATION IS MANDATORY AND IS THE EXCLUSIVE REMEDY FOR ANY AND ALL DISPUTES UNLESS SPECIFIED BELOW IN SECTION 14.
Any new features or tools which are added to the current online boutique shall also be subject to the Terms. You can review the most current version of the Terms at any time at www.graff.com. We reserve the right to update, change or replace any part of these Terms by posting updates and/or changes to our website. It is your responsibility to check this page periodically for changes. Your continued use of or access to the website following the posting of any changes constitutes acceptance of those changes.
Table of Contents
1. Website Use
2. Website User Conduct and Restrictions – License Terms
3. Our Privacy Notice and Your Personal Information
4. Information You Provide; Registration; Passwords
5. Order Placement and Acceptance, Engraving and Customization, and Gift Messages
6. Accuracy of Billing and Account Information
7. Shipping Fees and Details
8. Accuracy, Completeness and Timeliness of Information Available on the Website
9. Prices and Products Available on the Website
10. Third-Party Links and Optional Tools
11. Testimonials, Reviews, Submissions, and Pictures/Videos
12. DISCLAIMER OF WARRANTIES
13. LIMITATIONS OF LIABILITIES
14. DISPUTE RESOLUTION BY MANDATORY BINDING ARBITRATION AND CLASS ACTION WAIVER
15. Graff’s Additional Remedies
16. Indemnification
17. Termination
18. Severability
19. Governing Law
20. No Waiver
21. Compliance
22. Force Majeure
23. Electronic Signature
24. Changes to the Terms
25. Entire Agreement
26. Contact Information
SECTION 1 – WEBSITE USE
Only individuals (and not legal entities) who (a) have reached the age of majority (eighteen in most states), (b) have legal capacity to enter into contracts, and (c) are citizens of, or residents living in, the continental United States of America, Alaska, Hawaii or the District of Columbia may order products through the website. By using the website and/or making a purchase, you represent and warrant that you satisfy this criteria. Any orders placed in violation of this provision shall be null and void.
By placing an order through the Client Service Department or on the Website, you represent and warrant that you are a bona fide end-user customer and will not deliver, sell or otherwise distribute Graff products or purchase Graff products for commercial purposes or any other commercial benefit.
You may not use our site, services or products for any illegal or unauthorized purpose. Nor may you, in the use of the website, services or products, violate any laws in your jurisdiction.
A breach or violation of any of the Terms will result in an immediate termination of your services and access to the site.
SECTION 2 – WEBSITE USER CONDUCT AND RESTRICTIONS-LICENSE TERMS
All aspects of our website are protected by U.S. and international copyright, trademark, and other intellectual property laws, including all content, information, design elements, text material, logos, taglines, metatags, hashtags, photographic images, testimonials, personal stories, icons, video and audio clips, and downloads. No material on the website may be copied, reproduced, distributed, republished, uploaded, displayed, posted, or transmitted in any way whatsoever. The Graff trademark and logo are proprietary marks of Graff, and the use of those marks is strictly prohibited. Nothing herein gives you the right to use, copy, register as a domain name, reproduce, or otherwise display any logo, tagline, trademark, trade name, copyrighted material, patent, trade dress, trade secret, or confidential information owned by Graff.
Subject to your continued strict compliance with all Terms, Graff provides to you a revocable, limited, non-exclusive, royalty-free, non-sublicenseable, non-transferrable license to use the website. You acknowledge and agree that you do not acquire any ownership rights in any material protected by intellectual property laws.
You agree not to use or attempt to use the website or any services or products provided by Graff in any unlawful manner or a manner harmful to Graff. You further agree not to commit any harmful or unlawful act or attempt to commit any harmful or unlawful act on or through the website or through use of any software or hardware. This includes, but is not limited to, agreeing not to use the site or its content: (a) to solicit others to perform or participate in any unlawful acts; (b) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (c) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (d) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (e) to submit false or misleading information; (f) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the site or of any related website, other websites, or the Internet; (g) to collect or track the personal information of others; (h) to spam, phish, pharm, pretext, spider, crawl, or scrape; (i) for any obscene or immoral purpose; or (j) to interfere with or circumvent the security features of the site or any related website, other websites, or the Internet. We reserve the right to terminate your use of the site or any related website for violating any of these Terms.
SECTION 3 – OUR PRIVACY NOTICE AND YOUR PERSONAL INFORMATION
We respect your privacy and the use and protection of your non-public, personal information. Your submission of personal information through the website is governed by our Privacy Notice. Our Privacy Notice may be viewed at www.graff.com. Graff reserves the right to modify its Privacy Notice in its reasonable discretion from time-to-time. Our Privacy Notice is incorporated into this Agreement by reference.
SECTION 4 – Information YOU PROVIDE; Registration; Passwords
If you create an account with us, you represent and warrant that the information you provide to us is truthful and accurate, and that you are not impersonating another person. You are responsible for maintaining the confidentiality of any login and password you may use to access your Graff account, and you agree not to transfer your password or user name, or lend or otherwise transfer your use of or access to your user account, to any third-party. You are fully responsible for all transactions with, and information conveyed to, Graff under your user account. You agree to immediately notify Graff of any unauthorized use of your login or user name or any other breach of security related to your user account.
SECTION 5 – ORDER PLACEMENT AND ACCEPTANCE, ENGRAVING AND CUSTOMIZATION, AND GIFT MESSAGES
When is an order placed? Once you have selected the products you wish to purchase and placed them in your basket, you will be guided through the checkout process by a series of on-screen instructions. We accept the methods of payment identified as part of the order process via our website. Depending upon the means of payment, we may require additional information, including specific forms of identification. You place an order by clicking the PAY NOW button at the end of the checkout process. We may seek pre-authorization at the point you place your order, but we will take payment for the products you ordered at the point we notify you that your ordered products are ready to be sent. Your placement of an order for products and/or other services is conditioned on you re-affirming your acceptance of this Agreement.
Check out options. You will be given the option to checkout as a guest or using a personal account. For details of how to register and use your account see terms and information about your account.
Order confirmation. We may send you an order acknowledgement email as soon as you place your order, and you will receive an order confirmation detailing the products you have ordered. These emails do not constitute acceptance of your order. We may require additional information regarding your order if any required information was missing or inaccurate. You must contact us immediately at 800-982-8133 (toll-free), client.services@graffusa.com, or by using our “Contact Us” feature on the website in order to modify or cancel your pending order. We cannot guarantee that we will be able to amend your order in accordance with your instructions if your request comes after we have issued you a notice indicating that the products you ordered are ready to be sent. Please see “Order Acceptance” below for more details.
Your order number. We will assign an order number to your order and tell you what it is when we accept your order. It will help us if you can tell us the order number whenever you contact us about your order.
Order acceptance. Our acceptance of your order will take place when we send you an email indicating that the products you ordered are ready to be sent to you, at which point a contract will come into existence between you and us. We will also issue you an invoice at this point and will collect payment from the payment method you have provided us. All advertised prices are in, and all payments shall be in, U.S. Dollars. You agree that you will only use any products and services you purchase for your personal use.
Non-acceptance. If we are unable to accept your order, we will inform you of this via email and/or telephone, using the details we hold for you and will not charge you for the product. This might be, for example, because the product is out of stock, because of unexpected events or limits on our resources, because you do not meet the eligibility criteria to place an order set out in these Terms, because we have not been able to obtain authorization for your payment, because we have identified an error in the price or description of the product, because we are unable to meet a delivery deadline you have requested, or for various other reasons.
All items are subject to availability. We will notify you if any item is not available, the expected availability date, and may offer you an alternative product or service. We reserve the right to limit the sales of our products and services to any person, geographic region, or jurisdiction. We may exercise this right on a case-by-case basis at our sole and exclusive discretion.
Engraving and Customization. It is your sole responsibility to provide accurate information, such as your measurements, when ordering a customized product. It is also your sole responsibility to provide accurate messaging for any engraving that you request with your order. We reserve the right to refuse any engraving that contains messages with vulgar, salacious, or otherwise inappropriate content, or to reject orders with such messages, as determined in our sole and exclusive discretion. All customization and personalized product will be considered final sale, no returns will be accepted. Customized and personalized product are not subject to the normal turnaround/shipping commitments.
Gift Messages. We also reserve the right to refuse to permit gift messages with vulgar, salacious, or otherwise inappropriate content, or to reject orders with such messages, as determined in our sole and exclusive discretion.
SECTION 6 – ACCURACY OF BILLING AND ACCOUNT INFORMATION
You agree to provide current, complete, and accurate purchase and account information for all purchases made on our website. You agree to promptly update your account and other information, including your e-mail address and credit and other payment card numbers and expiration dates, so that we can complete your transactions and contact you as needed.
We reserve the right to refuse or limit any order you place with us. We reserve the right to cancel any order or to suspend or terminate your account if we have grounds to believe that you have provided inaccurate, not current, fraudulent, or incomplete payment information to us, or for any other reason that we, in our sole discretion, believe appropriate. We will prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.
SECTION 7 – SHIPPING FEES AND DETAILS
Unless otherwise stated on the website at the time of purchase, we reserve the right to add applicable shipping and handling fees to your order. Unless otherwise stated, we will use commercially reasonable efforts to fulfill your order within a reasonable time after receipt of your properly completed and verified order. Accurate shipping address and phone number information is required. Although we may provide delivery or shipment timeframes or dates, such dates are good-faith estimates and are subject to change. If your order will be delayed, we will contact you at the e-mail address you provided when placing your order. If we are unable to contact you or you would like to cancel your order, we will cancel the order and refund the full amount charged. We do not ship to any addresses outside of the continental United States of America, Alaska, Hawaii or the District of Columbia, Post Office boxes, or to APO/FPO/DPO addresses, and we reserve the right, in our sole discretion, to refuse to ship orders to certain physical addresses. Deliveries generally do not occur on weekends or legal holidays. We shall not be liable for any loss, damage, cost, or expense related to any delay in shipment or delivery caused by any third-party carrier or other delivery service not owned or controlled by us. The risk of loss and title for such items pass to you upon our delivery to any third-party carrier. Given the nature of our products, an adult signature is required to accept delivery of your order, and we reserve the right to verify the age of the person signing for the delivery through inspection of a valid method of legal identification, such as a current driver’s license or a passport. If you have specified a recipient who is not you for delivery purposes (for example, as a gift), then you understand and accept that evidence of a signature by such recipient (or by an adult at the delivery address) is evidence of delivery and fulfilment of the sales contract by Graff and transfer of responsibility to the recipient in the same way as if the product(s) had been delivered to you. We highly recommend that you or the recipient inspect your package for damage or tampering before signing and accepting it.
SECTION 8 – ACCURACY, COMPLETENESS AND TIMELINESS OF INFORMATION AVAILABLE ON THE WEBSITE
While we endeavor to provide accurate and current information on our website, there may be information on our website that contains typographical errors, inaccuracies, or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times, and availability. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update information or cancel orders if any information on the website or on any related website is inaccurate at any time without prior notice (including after you have submitted your order).
Please also take note of the following:
If you have any questions regarding the physical appearance or characteristics of a product you wish to purchase, please contact our Customer Services Team at 800-982-8133 or client.services@graffusa.com.
Images. The images of the products on our site are for illustrative purposes only and do not show the actual product you will receive. There may be some key variances in relation to:
(a) Color: although we have made every effort to display the colors accurately, we cannot guarantee that a device’s display of the colors accurately reflects the color of the products. Your product may vary slightly from those images.
(b) Size: on the website, some products appear larger than the actual size, in order that we can clearly show the product’s details. Alternatively, they may be shown at small scale in order to show the entire item. Your product may vary in scale. Please refer to the product measurements and dimensions for an accurate depiction of the size of the product.
(c) Carat weight: the carat weight detailed for each product on our site is accurate to 2 decimal places. Images used on our site may show products of similar, but not exactly the same, carat weight.
Customized products. Certain of our rings can be customized to your preferred size. Where this is the case, you will be presented with sizing options during the ordering process. Customizing may mean we are required to make some changes to the original specification; where this is the case, we will discuss such changes with you in advance of confirming your order.
Product packaging may vary. The packaging of the product may vary from that shown in images on our website.
Making sure your measurements are accurate. If we are customizing the product to measurements you have given us, you are responsible for ensuring that these measurements are correct. Please see our size guide. If you require assistance, please contact our Customer Services Team at 800-982-8133 or client.services@graffusa.com and we would be happy to provide guidance.
If any item described on the website is not as described when you receive it, or the packaging on the website does not match what you receive, your sole remedy is provided in our Refund Policy, which is also available at www.graff.com. All sales are deemed final except as provided in the Refund Policy.
We reserve the right to modify the contents of this website at any time, but we have no obligation to update any information on our website.
SECTION 9 – PRICES AND PRODUCTS AVAILABLE ON THE WEBSITE
We reserve the right, without notice, to discontinue products or services or modify specifications and prices on products and services without incurring any obligation to you. Except as otherwise expressly provided for in these Terms, any price changes to your purchase of product(s) or services will take effect following e-mail notice to you. Such price changes will not, however, be retroactive to products or services you have already purchased; only future purchases.
We take reasonable steps in an effort to ensure that the prices set forth on the website are correct and to accurately describe the items available on the website. If the correct price of our product is higher than its stated price, we will, at our discretion, either contact you for instructions before shipping or cancel your order and notify you of such cancellation.
SECTION 10 – THIRD-PARTY LINKS AND OPTIONAL TOOLS
Certain content, products, services, and optional tools available via our website or services may include materials from third-parties. You acknowledge and agree that we provide access to such content, products, services and optional tools “as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement.
Third-party links and optional tools on this site may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials, tools, or websites, or for any other materials, products, or services of third-parties.
We are not liable for any harm or damages related to the purchase or use of goods, services, tools, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third-party’s policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party.
SECTION 11 – TESTIMONIALS, REVIEWS, SUBMISSIONS, AND PICTURES/VIDEOS
We are pleased to hear from customers and welcome your comments regarding our products and services. We may use testimonials and/or product or service reviews in whole or in part together with the name, city, and state of the person submitting it. Testimonials may be used for any form of activity relating to our services or products, in printed and online media, as we determine in our sole and exclusive discretion. Testimonials represent the unique experience of the participants and customers submitting the testimonial, and do not necessarily reflect the experience that you may have using our services or products.
Anything that you submit or post to the site and/or provide us, including without limitation, photographs, testimonials, ideas, know-how, techniques, questions, reviews, comments, and suggestions is and will be treated as non-confidential and nonproprietary, and we shall have the royalty-free, worldwide, perpetual, irrevocable, and transferable right to use, copy, distribute, display, publish, perform, sell, lease, transmit, adapt, and create derivative works from such submissions by any means and in any form, and to translate, modify, reverse-engineer, disassemble, or decompile such submissions.
Additionally, we reserve the right to correct grammatical and typing errors, to shorten testimonials prior to publication or use, and to review all testimonials prior to publication or use. We shall be under no obligation to use any, or any part of, any testimonial or product review submitted.
Graff enjoys a worldwide reputation for both the design and manufacture of jewelry, high jewelry, high quality luxury watches, leather goods and other luxury goods. To this end, it possesses its own sources of creativity, in particular highly skilled teams of designers who conceive and perfect Graff’s creations. As a result, Graff cannot necessarily agree to or accept to be the receiver of unsolicited proposals of collaboration. Indeed, it is conceivable that Graff may already be working on similar ideas and/or creations.
SECTION 12 – DISCLAIMER OF WARRANTIES
EXCEPT AS OTHERWISE EXPRESSLY STATED ON THE WEBSITE, AND EXCEPT WHERE OTHERWISE INAPPLICABLE OR PROHIBITED BY LAW:
THE WEBSITE AND ALL CONTENT, PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT REPRESENT OR WARRANT, AND EXPRESSLY DISCLAIM THAT: (A) THE USE OF THE WEBSITE OR ANY SOFTWARE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (C) THE QUALITY OF ANY PRODUCTS, SERVICES, SOFTWARE, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE WEBSITE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (D) ERRORS OR DEFECTS IN THE WEBSITE WILL BE CORRECTED, OR (E) THE WEBSITE OR THE SERVER(S) THAT MAKE THE WEBSITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF THIRD-PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
SECTION 13 – LIMITATIONS OF LIABILITIES
EXCEPT WHERE OTHERWISE INAPPLICABLE OR PROHIBITED BY LAW, IN NO EVENT SHALL GRAFF OR ANY OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, INDEPENDENT CONTRACTORS, TELECOMMUNICATIONS PROVIDERS, AND/OR AGENTS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES, NOR ANY FEES OR COSTS, ARISING FROM OR RELATED TO THIS AGREEMENT, THE PRIVACY NOTICE, THE REFUND POLICY, THE SERVICES, THE PRODUCTS, OR YOUR OR A THIRD-PARTY’S USE OR ATTEMPTED USE OF THE WEBSITE OR ANY SOFTWARE, SERVICE, OR PRODUCT, REGARDLESS OF WHETHER GRAFF HAS HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES, FEES, OR COSTS. THIS INCLUDES, WITHOUT LIMITATION, ANY LOSS OF USE, LOSS OF PROFITS, LOSS OF DATA, LOSS OF GOODWILL, COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR PRODUCTS, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES. THIS APPLIES REGARDLESS OF THE MANNER IN WHICH DAMAGES ARE ALLEGEDLY CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, OR OTHERWISE.
IN NO EVENT SHALL GRAFF’S LIABILITY TO YOU EXCEED THE AMOUNT OF THE PAYMENTS PAID BY YOU TO GRAFF FOR THE PRODUCTS AND/OR SERVICES AS OF THE DATE IN WHICH THE FACTS GIVING RISE TO A CLAIM AGAINST GRAFF OCCURRED.
SECTION 14 – DISPUTE RESOLUTION BY MANDATORY BINDING ARBITRATION AND CLASS ACTION WAIVER
PLEASE READ THIS ARBITRATION PROVISION CAREFULLY TO UNDERSTAND YOUR RIGHTS. YOU AGREE THAT ANY CLAIM THAT YOU MAY HAVE IN THE FUTURE MUST BE RESOLVED THROUGH FINAL AND BINDING CONFIDENTIAL ARBITRATION. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY. THE RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST. YOU AGREE THAT YOU MAY ONLY BRING A CLAIM IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF (LEAD OR OTHERWISE) OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU FURTHER AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OR CLAIMS OR OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. HOWEVER, AN ARBITRATOR CAN AWARD ON AN INDIVIDUAL BASIS THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING INJUNCTIVE AND DECLARATORY RELIEF OR STATUTORY DAMAGES), AND MUST FOLLOW THESE TERMS AS A COURT WOULD.
If you have a complaint, dispute, or controversy, you agree to first contact us at client.services@graffusa.com to attempt to resolve the dispute or controversy informally. Any controversy or claim arising out of or related to the website, any product or service, these Terms, the Privacy Notice, the Refund Policy, or your relationship with us that cannot be resolved through such informal process or through negotiation within 120 days shall be resolved by binding, confidential arbitration administered by the American Arbitration Association (“AAA”). We agree that any claim we may have against you will also be subject to this arbitration provision, except as provided in Sections 15 and 16 below. The arbitration will be conducted by a single neutral arbitrator in the English language in New York, New York, unless we both agree to conduct the arbitration by telephone or written submissions. The arbitrator shall be selected by agreement of the parties or, if the parties cannot agree, chosen in accordance with the Rules of the AAA. The arbitration will be conducted in accordance with the provisions of the AAA’s Commercial Arbitration Rules and Procedures, Supplementary Procedures for Consumer-Related Disputes, in effect at the time of submission of the demand for arbitration. The AAA’s Rules are available at www.adr.org or by calling 1-800-778-7879. The arbitrator shall have the exclusive and sole authority to resolve any dispute relating to the interpretation, construction, validity, applicability, or enforceability of these Terms and Conditions of Use and Sale, the Privacy Notice, the Refund Policy, this arbitration provision, and any other terms incorporated by reference into these Terms and Conditions of Use and Sale. The arbitrator shall have the exclusive and sole authority to determine whether any dispute is arbitrable. The arbitrator shall have the exclusive and sole authority to determine whether this arbitration agreement can be enforced against a non-signatory to this agreement and whether a non-signatory to this agreement can enforce this provision against you or Graff.
Payment of all filing, administration, and arbitrator fees will be governed by the AAA’s Rules. In all other respects, the parties shall each pay their own additional fees, costs, and expenses, including, but not limited to, those for any attorneys, experts, documents, and witnesses.
The arbitrator shall follow the substantive law of the State of New York without regard to its conflicts of laws principles. Any award rendered shall include a confidential written opinion and shall be final, subject to appeal under the Federal Arbitration Act, 9 U.S.C. §§ 1-16, as amended. Judgment on the award rendered by the arbitrator may be entered in any U.S. court of competent jurisdiction.
You and Graff agree that disputes will only be arbitrated on an individual basis and shall not be consolidated, on a class wide, representative basis, or with any other arbitration(s) or other proceedings that involve any claim or controversy of any other party. You and Graff expressly waive any right to pursue any class or other representative action against each other.
Failure or any delay in enforcing this arbitration provision in connection with any particular claim will not constitute a waiver of any rights to require arbitration at a later time or in connection with any other claims except that all claims must be brought within 1 year after the claim arises (the 1 year period includes the 120-day informal resolution procedures described above).
This arbitration provision sets forth the terms and conditions of our agreement to final and binding confidential arbitration and is governed by and enforceable under the Federal Arbitration Act, 9 U.S.C. §§ 1-16, as amended.
This provision survives termination of your account or relationship with Graff, bankruptcy, assignment, or transfer. If the class action waiver is deemed unenforceable (i.e., unenforceability would allow arbitration to proceed as a class or representative action), then this entire arbitration provision shall be rendered null and void and shall not apply. If a portion of this arbitration provision (other than the class action waiver) is deemed unenforceable, the remaining portions of this arbitration provision shall remain in full force and effect.
YOU UNDERSTAND THAT YOU WOULD HAVE HAD A RIGHT TO LITIGATE THROUGH A COURT, TO HAVE A JUDGE OR JURY DECIDE YOUR CASE, AND TO BE PARTY TO A CLASS OR REPRESENTATIVE ACTION. HOWEVER, YOU UNDERSTAND AND AGREE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY AND ONLY THROUGH BINDING, FINAL, AND CONFIDENTIAL ARBITRATION IN ACCORDANCE WITH THIS ARBITRATION PROVISION.
SECTION 15 – GRAFF’S ADDITIONAL REMEDIES
In order to prevent or limit irreparable injury to Graff, in the event of any breach or threatened breach by you of the provisions of this Agreement or any infringement or threatened infringement by you of the intellectual property of Graff or a third-party, Graff shall be entitled to seek a temporary restraining order and preliminary and permanent injunctions or other equitable relief from a court of competent jurisdiction located in New York, New York restraining such breach, threatened breach, infringement, or threatened infringement. Nothing in this Agreement shall be construed as prohibiting Graff from pursuing in court any other remedies available to it for such breach, threatened breach, infringement, or threatened infringement, including the recovery of monetary damages from you. You and Graff hereby irrevocably consent to the exclusive personal jurisdiction of, and exclusive venue in, the courts of New York, New York for all such claims, and forever waive any challenge to said courts’ exclusive jurisdiction or venue.
SECTION 16 – INDEMNIFICATION
To the fullest extent permitted by law, you agree to defend, indemnify, and hold harmless Graff and its parent, subsidiaries, officers, directors, employees, contractors, subcontractors, licensors, service providers, suppliers, affiliates, partners, and agents from and against any and all claims, actions, losses, liabilities, damages, expenses, demands, and costs of any kind, including, but not limited to, reasonable attorneys’ fees, arising out of, resulting from, or in any way connected with or related to (1) your breach of these Terms, the documents they incorporate by reference, or the Agreement; (2) your breach of any representations or warranties in this Agreement; or (3) your violation of any law or the rights of a third-party.
SECTION 17 –TERMINATION
This Agreement will take effect (or shall re-take effect) at the time you click “PAY NOW,” “ORDER NOW”, “SUBMIT ORDER,” “SUBMIT”, “BUY NOW”, “PURCHASE”, “I ACCEPT”, “I AGREE” or similar links or buttons, otherwise submit information through the website, respond to a request for information, complete a purchase, select a method of payment, enter in payment information, and/or begin installing, accessing, or using the website, whichever is earliest. If, in our sole discretion, you fail, or we suspect that you have failed, to comply with any term or provision of the Agreement, we may terminate the Agreement or suspend your access to the website at any time without notice to you and you will remain liable for all amounts due up to and including the date of termination or suspension. You further agree that Graff shall not be liable to you or to any third-party for the consequences of such termination or suspension. Your rights under this Agreement will terminate automatically if you fail to comply with this Agreement, subject to the survival of rights of certain provisions identified below. Termination will be effective without notice. Sections 10 through 16 and 19 through 25 of this Agreement, as well as any representations, warranties, and other obligations made or undertaken by you, shall survive the termination of this Agreement and/or your account or relationship with Graff.
SECTION 18 – SEVERABILITY
In the event that any provision of these Terms is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms, and such determination shall not affect the validity and enforceability of any other remaining provisions.
SECTION 19 – GOVERNING LAW
This Agreement and any issue or dispute arising out of or otherwise related to this Agreement or your access to or use of the website, our Privacy Notice, our Refund Policy or any matter concerning Graff, including your purchase and use or attempted use of any product or service, shall be governed exclusively by the laws of the State of New York without regard to its conflicts of laws principles. To the extent that any claim or dispute is found by the arbitrator or (if proper) a court of competent jurisdiction to be excluded from the arbitration agreement in Section 14 above, the parties agree any such claim or dispute shall be exclusively brought in and decided by the state or federal courts located in New York, New York, and you hereby irrevocably consent to the exclusive personal jurisdiction of, and exclusive venue in, such courts, and forever waive any challenge to said courts’ exclusive jurisdiction or venue. All such claims must be brought on an individual and non-class, non-representative basis, and you forever waive any right to bring such claims on a class wide or representative basis.
SECTION 20 – NO WAIVER
No failure or delay on the part of Graff in exercising any right, power or remedy under this Agreement may operate as a waiver, nor may any single or partial exercise of any such right, power, or remedy preclude any other or further exercise of such right, power, or remedy, or the exercise of any other rights, power, or remedy under this Agreement. A waiver of any right or obligation under this Agreement shall only be effective if in writing and signed by Graff.
SECTION 21 – COMPLIANCE
You represent and warrant that you are not a person or entity with whom or which a U.S. person may not conduct business pursuant to laws administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”), the Department of State, the Department of Commerce, or any other agency of the United States Government.
SECTION 22 – FORCE MAJEURE
Graff will not be responsible to you for any delay, damage, or failure caused or occasioned by any act of God, act of nature, or other causes or events beyond our reasonable control including, but not limited to, pandemics, acts of terror, hurricanes, earthquakes, floods and other natural disasters, states of emergency, labor shortages, and piracy.
SECTION 23 – ELECTRONIC SIGNATURE
All information communicated on the website is considered an electronic communication. When you communicate with Graff through or on the website or via other forms of electronic media, such as e-mail, you are communicating with the company electronically. You agree that we may communicate electronically with you and that such communications, as well as notices, disclosures, agreements, and other communications that we provide to you electronically, are equivalent to communications in writing and shall have the same force and effect as if they were in writing and signed by the party sending the communication.
SECTION 24 – CHANGES TO THE TERMS
You can review the most current version of the Terms at any time at www.graff.com.
We reserve the right, in our sole and exclusive discretion, to update, change or replace any part of these Terms by posting updates and changes to our website. It is your responsibility to check our website periodically for changes. Your continued use of or access to our website following the posting of any changes to these Terms constitutes acceptance of those changes.
SECTION 25 – ENTIRE AGREEMENT
These Terms, the Agreement, and any policies or operating rules posted by us on this website or in respect to the website constitutes the entire agreement and understanding between you and us and governs your access to and use of the website and your ordering, purchasing, and use and/or attempted use of any product or service, and supersedes and replaces any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms). We may also, in the future, offer new products, services and/or features through the website. Such new products, services or features shall also be subject to these Terms, the Agreement, and any policies or operating rules posted by us on the website.
Any ambiguities in the interpretation of these Terms shall not be construed against the drafting party.
SECTION 26 – CONTACT INFORMATION
Questions about the Terms should be sent to us at client.services@graffusa.com.