Jewelry..Silver, Akoya Pearls, Stones, etc.

UpscaleWholesale.Com, LLC 2646 SW Mapp Road, Suite 305 Palm City, Florida 34990 GENERAL TERMS AND CONDITIONS (rev. 6/1/2014) APPLICATION Bidder, in consideration of being permitted to bid (or Buyer, or winning Bidder, or Purchaser, each of which four terms may be used interchangeably), hereby agrees to be bound by all of the terms and conditions contained in any lot listing and these UpscaleWholesale.Com, LLC General TERMS AND CONDITIONS. These General Terms and Conditions and the information contained in any lot listing constitute the entire agreement between Buyer and UpscaleWholesale.Com ("UWC"). These General Terms and Conditions and the information contained in any listing may only be changed by UWC. By participating in an auction, Buyer acknowledges that Buyer is bound by these General Terms and Conditions and the information contained in any listing and that such acknowledgement is a material representation to UWC by Bidder to induce UWC to allow Bidder to bid. UWC, UpscaleWholesale.Com or any pronoun referring to it also refers to their agents, representatives, officers, directors, stockholders, members, managers, employees, consultants or affiliates. In the event of a conflict between these UPSCALEWHOLESALE.COM GENERAL TERMS AND CONDITIONS and the contents of any listing, any invoice, or any Auction Venue General Terms and Conditions, these General Terms and Conditions shall supersede and govern. LOT DESCRIPTIONS Personal Property - UWC believes, to the best of its knowledge that the information presented in any listing has come from reliable sources. Such information is presented solely for the convenience of the Purchaser. UWC makes no Warranties of any kind related to the information presented in any listing. UWC makes no Warranties of any kind related to any third party evaluations or appraisals included in any listing. UWC further makes no Warranties, either express or implied, relating to the value, marketability or condition of the lot described in any listing. Prospective Bidders should investigate a lot thoroughly before bidding. By bidding the Bidder acknowledges that Bidder has investigated the lot to his or her satisfaction, or, that Bidder has chosen not to do so, and agrees to accept the lot being bid on with no objections after the sale closes. Such acknowledgement is a material representation to UWC by Bidder to induce UWC to allow Bidder to bid. If you are uncertain please contact us with your questions prior to bidding. If you are still uncertain after we reply, or if we do not reply, please refrain from bidding. Photos and other graphic material contained in any listing of generic or duplicate lots may be stock presentations and not necessarily of the specific lot. Gemstones described as "mine cut" are ready for final cutting/polishing and may have prior to final finishing defects in faceting, chips and/or areas not fully polished. "CTW" or "TWC" when used in a description applies to the total carat weight of any settings plus the set gemstones. Real estate - It is the Purchaser's responsibility to complete an appropriate due diligence investigation of any parcel UWC sells which is consistent with that of any prudent investor acquiring real property. Normal due diligence includes, but is not limited to, physical inspection and verification of property use with regulatory authorities, public/private utilities and property owners' associations. UWC, their agents, representatives, officers, directors, stockholders, members, managers, employees, consultants or affiliates, make no Warraranties or representations, express or implied, relative to any parcel, including, but not limited to: the ability to build, access, terrain, topography, location, condition, available utility services, value, marketability, fitness for any particular purpose or the information contained in this listing. Photos, maps and other graphic material contained in any listing may be of the general area and region of the parcel listed and not necessarily of the specific parcel. The information contained in any listing is believed to have come from reliable sources, but is not verified or warrantied by UWC and should be verified by the Purchaser prior to bidding. All real property is sold by us "as-is, where-is with all faults" existing at the time of sale, and is solely guaranteed to have lien-free title upon transfer to Buyer. Any taxes or assessments which may be due as of the date of the auction will be cleared by us upon closing of the transaction. BUYER'S PREMIUM A Buyer's premium may be stated in the auction description for any particular auction as a percentage of the winning bid amount and will be added to the purchase price of each lot, subject to the following minimums: In the event that no Buyer’s premium is charged, a payment processing fee of 3% of the total invoice amount may be charged and will be stated in the auction description. PRICE ESTIMATES High and low estimates are provided solely for comparison purposes and UWC makes no Warranties of any kind relating to them. APPRAISALS & APPRAISAL ESTIMATES Any appraisals or evaluations provided are solely for the convenience of the Bidder and UWC makes no Warranties of any kind relating to them. Appraisals may include valuations which reflect the full, highest retail price of the item in a specific geographic region, the item's insurance replacement value, or both. No price estimate or appraisal value should be considered to represent the investment or resale value of the item. Such values are to be solely based on the due diligence evaluation of the Bidder. In the event that an item is listed as having an "Appraisal Estimate", this represents UWC's in-house estimate of the item’s full maximum retail or insurance replacement value, based upon available market data. PLACEMENT AND ACCEPTANCE OF BIDS Unless the auction of a lot is announced as absolute, UWC reserves the right to accept or reject any bid for any reason whatsoever, at any time before, during or subsequent to any auction. Any and all bids made by a Bidder constitute irrevocable offers to purchase the lot at the maximum bid amount of the Bidder and may not be withdrawn by the Bidder under any circumstances. At the close and reconciliation of the auction, UWC shall determine the actual winning Bidder of each lot and may, in its sole discretion, reflect as sold to any lower Bidder in the event of non-payment by a higher Bidder or for any duplicate item that may be available at the Bidder's maximum bid on the lot. In the event of any dispute between Bidders, or in the event of doubt on UWC’s part as to the validity of any bid, UWC will have the exclusive final discretion to determine the successful Bidder, cancel the sale, award the lot to the next highest Bidder or Bidders or to re-offer and resell the lot in dispute and UWC is not responsible for any errors or omissions in connection therewith. UWC's auction sales are typically without reserve. However, in the event of an auction sale in which all items open at $1 or other amount well below auction estimates, an unspecified reserve amount may apply to some or all of the items in the sale. UWC reserves the right to protect any reserve price by placing and advancing floor bids up to the amount of the reserve. UWC may also place bids on behalf of any buyer or seller, bid for its own account or remove any lot from sale without notice at any time. Any bid entered by a Bidder shall be determined in the sole discretion of UWC to have exceeded or not to have exceeded any reserve. In consideration of UWC's approval of the application of the Bidder to bid in UWC's auction, Bidder agrees to comply with and be specifically bound by the provisions of this paragraph. Bidder understands and acknowledges that UWC pays independent online auction hosting venues for the hosting of UWC's online sales as well as the acceptance and recording of online bids in those sales. As such, the resolution of any problems, difficulties or issues Bidder has with the placement or recording of Bidder's bids is solely among Bidder, Bidder's computer, Bidder's ISP and the online hosting venue and are is under no circumstances any responsibility of UWC. PAYMENT For all accepted bids in any auction, UWC immediately removes the items on which bids have been accepted from its inventory available for future auction catalogs. This is a considerable undertaking for UWC, and deprives UWC of the potential sale of the items so removed from available inventory to another Bidder. In the event that the winning Bidder does not settle his or her auction invoice, considerable additional effort must be undertaken by UWC to place the Bidder's items back into available auction inventory and to collect the applicable charges from Bidder. Therefore, inconsideration of these undertakings by UWC, Bidder agrees to be irrevocably bound by the following payment terms: Transactions Other Than Real Estate Payment of the winning bid amount, buyer's premium and shipping/handling charges will be made at the time the auction is reconciled and invoiced (email) by UWC, using the credit card on file for the Bidder. Bidder, in consideration of UWC's approval of the Bidder to bid, expressly permits UWC to retain Bidder's credit card information, once provided for any auction, for use, without the separate authorization of Bidder, to process additional shipping charges that may arise per these General Terms and Conditions and, without the separate authorization of Bidder, to process charges for purchases in all subsequent auctions. Such authorization shall remain in force for UWC's use until cancelled by Bidder in a signed writing and received by UWC. In the event that no credit card is on file, the Bidder will be directed to UWC's credit card payment website, other means of transmitting credit card information and also provided with instructions for payment by wire, cashier's check or money order; business and personal checks are not accepted. All credit card payments are due at the time of the auction sale (hammer down) and become past due at the close of business on the day following the date of the sale. All other payments are required to be received within 24 Hours following the invoice being sent by email. Wire transfer payments are required to be initiated on the day of sale or the banking day immediately following the date of sale. In consideration of UWC's approval of the application of the Bidder to bid in UWC's auction, Bidder hereby authorizes UWC to charge the credit card currently or previously on file provided by Bidder as specified herein and such authorization is a material action by Bidder to induce UWC to allow Bidder to bid. A $50 handling fee will be assessed for each declined credit card transaction and Bidder agrees to such charge. Requests for other payment arrangements will only be considered prior to the opening of bidding in any auction. Open invoices remaining unpaid at the past due time specified above shall immediately become subject to the full application of all charges specified in these General Terms and Conditions, including, but not limited to: the 2% late service charge billed in advance, and not prorated, on the day after the sale and each monthly anniversary thereof; a daily storage fee of $5 per item beginning the day after the sale and applicable for no more than 15 days; full application of all charges herein, including, but not limited to the $5 minimum buyer's premium and the amount by which any buyer's premium is reduced below 18%. On the 15th day following the date of sale or earlier if UWC was unsuccessful in contacting Bidder to obtain payment; Bidder refuses to pay; or Bidder fails to meet payment commitments made, the unpaid invoice will be submitted to third party collection and additional charges will apply as provided elsewhere in these General Terms and Conditions. SHIPPING, HANDLING AND INSURANCE We provide handling, packing and shipping services solely as a convenience for our Bidders. Because Bidders most often opt for these services, we include an ESTIMATED AMOUNT in the auction invoice. We ship primarily by USPS priority mail within a commercially reasonable time following credit of the Bidders payment to our account. On average, a Bidder may expect to receive their items within 2 weeks following their payment. The actual cost of shipping, insurance, registry and confirmation services is charged to the Bidder, as well as a packing/handling fee not to exceed $3 per item, to defray the cost of labor and supplies involved. Large, heavy, fragile or otherwise unusual items will incur additional charges. Under special circumstances, UWC may ship items using USPS Express Mail, private carriers or pack and ship enterprises, the cost of which shall be charged to the Bidder. UWC will not entertain shipment using lower classes of mail due to the increased risk of loss. Requests for earlier shipment or special handling may be accommodated on a limited basis at UWC's sole discretion and may incur additional handling charges. All costs charged to a Bidder's original invoice are estimates and UWC reserves the right to charge additional amounts if such estimates are exceeded and Bidder hereby agrees to such additional amounts. UWC does not combine shipment of items from different sale dates. All US domestic shipments are insured at the total bid amount contained in the shipment (other add-on charges are not covered by insurance). The estimated cost of insurance is included in the Bidder's invoice. Shipments to Alaska, Hawaii, US Territories and Foreign Countries Shipping and handling charges to these locations are higher and often require registry or express mail. Insurance coverage to foreign locations may also be limited by the shipping carriers. UWC will ship items to foreign locations using the same classes of mail and additional postal services that it uses to ship to US locations, to the extent that such services are available, and, insurance coverage may be limited or unavailable. In UWC's sole discretion USPS shipments to foreign locations shall utilize registered mail and Bidder shall pay for the costs thereof. IT IS THE FOREIGN BIDDER'S OBLIGATION TO BE AWARE OF AND INSTRUCT UWC REGARDING ANY ALTERNATIVE SHIPPING ARRANGEMENTS WHICH MAY BE DESIRED TO INCREASE INSURANCE COVERAGE. UWC will not be liable for any shortfall of insurance either on foreign shipments or on the non-coverage of additional invoice charges exceeding bid amounts. Foreign Bidders are solely responsible for the compliance with all export and import requirements of the items they purchase, both out of the US and into their country of delivery and no refunds will be provided for the failure of Bidder to comply with this provision. To the extent that UWC is required to assist foreign Bidders in these matters, the time expended by UWC will be billed at $35 per hour. Storage fees of $5 per day per item will apply to all items held for any Bidder after the normal shipment date due to customs regulations or circumstances existing at the Bidder's delivery location or due to late payment by Bidder. Our responsibility for damage to or loss of any lot ends once it has been turned over to the USPS, or other shipping enterprise for delivery and/or packing. By bidding, the winning Bidder agrees that any and all claims for loss or damage to the lot will be handled solely through the insurance claims process (if insurance was available) or the carrier and acknowledges that insurance may be subject to deductibles or other limitations which are not the responsibility of UWC. UWC is not responsible to any loss resulting from items being shipped to an alternate address or recipient provided by Bidder. No items will be shipped to any Bidder for any particular auction until all charges for the auction have been paid in full and all funds have cleared. Even if paid in full, no items will be shipped to any Bidder for any particular auction if the Bidder has any balances with UWC from other auctions which are not in compliance with the provisions of PAYMENT above, until such balances are paid in full and all funds have cleared. UWC may, at its sole discretion, require any Bidder to return a signed sales receipt or other verifying documentation prior to shipping. BY BIDDING, THE BIDDER AGREES TO UWC'S SHIPPING AND HANDLING POLICY AND CHARGES, WHETHER KNOWN OR NOT TO BIDDER AT THE TIME OF BID. BIDDER FURTHER AGREES THAT NEITHER DELIVERY OF AN ITEM AFTER THE DATE DESIRED OR EXPECTED BY BIDDER OR LOSS OF AN ITEM BY A THIRD-PARTY DELIVERY ENTITY GIVE RISE TO A CAUSE FOR A CHARGEBACK CLAIM AND BIDDER SPECIFICALLY AGREES TO REFRAIN FROM THE FILING OF ANY SUCH CLAIM. NON-PAYMENT UWC is in the business of locating items for sale, listing them for sale, selling them and shipping them. UWC is not in the business of collecting delinquent accounts receivable and UWC finds the need to do so unpleasant and a gross waste of its resources. Therefore, in fairness to UWC and the many Bidders who do follow the agreed-to terms and conditions, violating Bidders are required to pay the following charges for forcing UWC to spend valuable time and effort on collecting the delinquent Bidder's account and taking time away from listing items for sale and related functions. UWC's relationship with Bidders is simple and straight-forward: UWC finds, UWC lists, UWC sells, Bidder signs up, Bidder bids, Bidder wins, Bidder pays, UWC ships. UWC does not wish to collect any of the fees stated below. However, when a Bidder unilaterally violates these General Terms and Conditions by not paying as agreed, and forces UWC outside of the simple equation stated above, using valuable time and effort for non-income producing purposes, the following charges shall be vigorously applied and collected. By signing up to bid and by bidding, Bidder agrees not to violate the payment provisions of these General Terms and Conditions and such agreement is a material representation to UWC by Bidder to induce UWC to allow Bidder to bid. The Bidder is a Non-Paying Bidder (NPB) if the Bidder has not met the requirements of PAYMENT above. Storage fees of $5 per day will apply to items which remain unpaid beginning on the day following the sale for a maximum of 15 days. A service charge of 2% per month, in advance and not prorated, shall apply to all balances owed by a NPB beginning the day after the sale. On the earliest day following non-payment that the online venue allows, a non-payment dispute shall be entered with the venue which hosted the sale. Anytime following 15 days after sale, or at any time earlier upon UWC's lack of success in contacting NPB to obtain payment; NPB's refusal to pay; or NPB's failure to meet payment commitments made, UWC, at its sole option, may convert the unpaid balance with the NPB to an authorized return and instead bill the NPB the specified restocking fee as well as all applicable service charges, storage fees, additional buyer's premium, collection fees and costs, and send the adjusted balance to collection. Any such restated invoice will then, itself become fully collectible from the NPB under all of the relevant provisions of these General Terms and Conditions and subject to the late fee as well as other fees and costs specified. Payment of any restocking fee and other charges does not give the NPB the right to receive auction items and solely constitutes the payment of liquidated damages and costs resulting from the NPB's failure to pay. RETURNS All sales are final, no lots are sold on approval; placing a bid is a legally binding obligation. There are no returns or exchanges. All lots are sold as is, where is, with all the faults, imperfections, omissions and errors in the written description, estimates, appraisals, graphics and photography. UWC is not responsible for any errors or omissions in the description, graphics or photography provided or in the bidding software. Due diligence to verify the condition and description of a lot is the sole responsibility of the Bidder prior to placing any bid. Returns may only be made with the advance written authorization of UWC and are in UWC's sole discretion to approve. To request a return, you must provide a written request fully explaining the basis for the return no later than 3 days after your receipt of the lot. Under no circumstances will any amounts other than the winning bid amount be refunded. A restocking charge of 25% of the full invoice amount may apply in UWC's sole discretion. Any allowed returns must be received in exactly the same condition as when originally shipped to Buyer, or they will be returned to buyer at Buyer's cost. Any unauthorized returns will be refused. DELIVERY REFUSAL OF ITEMS SHIPPED BY UWC TO THE BIDDER CONSTITUTES AN UNAUTHORIZED RETURN IN DIRECT VIOLATION OF THESE GENERAL TERMS AND CONDITIONS. DISPUTE RESOLUTION If any dispute occurs between Buyer and UWC that cannot be resolved, then the parties agree to the rules, regulations and procedures of the dispute resolution 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, then the dispute or allegation shall be submitted to binding arbitration in the State of Florida. UWC shall select a neutral arbitrator. The arbitration process shall be initiated by either party requesting arbitration which must be served upon the other party by certified mail. Failure to participate in the arbitration is a default. Each party shall simply present their case (limited to a maximum of one hour for each party) to the arbitrator. The parties agree and acknowledge that they are completely waiving their rights to have the dispute heard in a court of law. The parties agree 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 not 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 signing up to participate in a UWC auction, Bidder specifically agrees to the dispute resolution specified in the foregoing paragraph as Bidder's SOLE means to resolve any and all disputes which may arise with UWC. By doing so Bidder specifically agrees that Bidder will not file a dispute of any kind with an online venue, a credit card, or any other third parties. Bidder specifically waives the right to initiating a credit card chargeback dispute on any basis of claim and agrees that Bidder will pay UWC a minimum of $500 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. LIMITATION OF LIABILITY In no event shall UWC's liability for any breach, or act or omission exceed the purchase price actually paid by the Buyer, and in no event shall UWC have any liability under any circumstances for special, indirect, incidental or consequential damages (including for loss of profits or revenue, costs of obtaining alternative property, claims of customers of Buyer or otherwise), whether in contract, tort, negligence, strict liability, or otherwise, arising out of, resulting from or in any way relating to the lot or its purchase, sale, delivery or non-delivery, or the acts or omissions of UWC or UWC's agents, representatives, officers, directors, stockholders, members, managers, employees, consultants or affiliates. All property is sold "AS IS", and ALL SALES ARE FINAL. Property is open to thorough public inspection. It is the Bidder's responsibility to determine condition, age, genuineness, value or any other determinative factor. UWC may attempt to describe the merchandise in advertising and on the Internet but makes no representations. In no event shall UWC be held responsible for having made or implied any warranty of merchantability or fitness for a particular purpose. Bidder shall be the sole judge of value. Bidders who bid from off site and are not physically present understand and acknowledge that they may not be able to inspect any lot as well as if they examined it in person. It is the Bidder's responsibility to determine condition, age, genuineness, value or any other determinative factor. UWC shall endeavor to describe in detail each lot and any pertinent information about it. UWC will not be responsible for any errors or omissions in the description of the merchandise unless it is a material and intentional misrepresentation of the lot itself. Bidder agrees that everything is sold as is and that they may not return any lot they purchase. Under no circumstances shall Bidder have any kind of claim against UWC or anyone else if the internet service fails to work correctly before or during the live auction. UWC will not be responsible for any missed bids from any source. Internet Bidders who desire to make certain their bid is acknowledged should use the absentee bidding feature and leave their maximum bid before the auction begins. UWC reserves the right to withdraw or re-catalog lots in any auction. BINDING CONTRACT 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 UWC. In the event that any reserve price of a lot is not exceeded by any Bidder's bid UWC, 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 UWC and are not disclosed to Bidder's 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 placed, once accepted by UWC, will be the winning bid if there is no higher bid by another Bidder and if any reserve or reduced reserve on the lot is exceeded. All bids are binding, irrevocable and non-cancelable by Bidder. There are no provisions for the placing of bids to "mark the lot" or to "test the system", etc. and any requests to cancel bids on these bases, or due to a Bidder not reading a listing; not being familiar with the bidding platform; internet connection problems, speed or communication issues; not doing proper due diligence; failing to maintain proper control over Bidder's bidding terminal; bidding by mistake and the like will be denied. Such requests to cancel bids are null and void and will not excuse Bidder from Bidder's legal and contractual obligation to complete a transaction. If you are the successful Bidder, you agree to pay the amount of your bid plus all applicable taxes and charges in the time and manner designated herein. Failure to make such payment shall be deemed to be a breach of these General Terms and Conditions, and, in addition to all other rights and remedies UWC may have under applicable law, you will be charged a re-stocking fee on transactions equal to (a) 25% of the amount of your invoice, plus $25; or (b) the cost associated with re-marketing and re-selling the lot, whichever is greater Bidder is responsible for any and all costs associated with collection of amounts owing from the Bidder, until collected; and UWC reserves the right to bill and collect any such costs from Bidder. Costs associated with collection may include, but are not limited to, time charges, incidental expenses, attorney fees and costs associated with the use of a collection agency. The winning Bidder's failure to complete the purchase in accordance with the terms provided herein and in the listing will cause the Bidder to be faced with all, or any combination of the following measures: elimination of all future bidding privileges on the hosting site; credit agency reporting; legal and/or collection action. These General Terms and Conditions and each listing contain all of the provisions applicable to the agreement between UWC as seller and each Bidder. The provisions of these General Terms and Conditions and of each listing supersede all other agreements, representations or understandings, whether prior or contemporaneous, oral or written, between the parties concerning that subject matter. These General Terms and Conditions and provisions of each listing shall be binding on Buyer's heirs, beneficiaries, executors, successors and assigns. MAILING LIST In consideration of UWC's approval of a Bidder to bid in any sale, Bidder permits UWC to add Bidder to UWC's mailing list. UWC will send information to Bidder relating to UWC's activities and will not provide Bidders mailing information to third parties except as necessary to provide information to Bidder relating to UWC's activities. Bidder may freely opt out of mailings at any time by following the instructions in any mailing and Bidder agrees that any mailings from UWC or third parties providing information relating to UWC are not spam. Bidder agrees that any reporting of communications from or on behalf of UWC as spam would constitute defamation, further agrees that litigation relating to any such spam reporting would be costly and time-consuming, and finally agrees to pay UWC upon demand the amount of twenty-five hundred US Dollars ($2,500.00) for each occurrence of such spam reporting. ASSIGNMENT Any assignment without UWC's written authorization will be void. SEVERABILITY If any provision of these General Terms and Conditions or of any listing be void, unlawful or unenforceable under applicable law, that provision shall be modified to the minimum extent possible to comply with applicable law, or if modification is not possible, deleted and severed from the remaining provisions. Any such modification, deletion or severing shall not affect the enforceability or validity of any of the remaining provisions. VENUE These General Terms and Conditions, the contents of any listing and the contractual relationship between UWC and any Buyer shall be interpreted under and governed by the laws of the State of Florida. If Buyer participates in an auction, even if they did not affirm having read these General Terms and Conditions, their actions speak for themselves and they are deemed to have read and agreed to these General Terms and Conditions.