These Website Terms and Conditions (the “Agreement”) sets forth the terms and conditions that apply to your access and use of, and your purchases of products and/or services through, the internet website owned and operated by Spence Diamonds Ltd. (“Spence”, “we”, “us” or “our”) and located at spencediamonds.com (the “Website”).
Your use of the Website constitutes your agreement to follow and be bound by the terms of this Agreement, including without limitation all documents incorporated herein by reference. We reserve the right to modify this Agreement at any time in our sole discretion without prior individual notice. Any modifications to this Agreement will be posted on the Website. For this reason, we encourage you to review this Agreement whenever you access and use the Website and each you time you make a purchase through the Website. You can tell when this Agreement was last modified by checking the “last updated” date that appears at the top of this Agreement. BY ACCESSING OR USING THIS WEBSITE, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, PLEASE DO NOT USE THE WEBSITE.
ABILITY TO ENTER INTO THIS AGREEMENT
In order to enter into this Agreement, you must have reached the legal age of majority in your jurisdiction of residence or possess legal parental or guardian consent, and you must be fully able and competent to enter into the terms and conditions of this Agreement, and able to abide by and fully comply with this Agreement. If you accept this Agreement, you represent that you have the capacity to be bound by it.
We reserve the right to cancel or refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same user account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event we make a change to or cancel an order, we will attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made.
PRODUCT AVAILABILITY & PRICING
Sometimes with the volume of orders we receive, an item may go out of stock before we are able to post a notification on the Website. If this happens, we may cancel your order. In such a case, we may also contact you directly to discuss possible options.
Our prices are subject to change without notice, and we do not negotiate prices on our products or services. Items in your shopping cart and wish list will always reflect the most recent price displayed on the item’s product detail page. This price may differ from the price shown for the item when you first placed it in your shopping cart or wish list, as it is possible that an item’s price may increase or decrease between the time you place it in your cart or wish list and the time you purchase it. You acknowledge and agree that placing an item in your shopping cart or wish list does not reserve the price shown at that time.
Prices may be inaccurately displayed on the Website due to system, typographical or other errors. While we try to avoid such errors, they may occur. We reserve the right to correct any and all such errors when notified of them, and we do not honor inaccurate or erroneous prices. If a product’s listed price is incorrectly displayed on the Website, 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 pricing error is discovered after payment has been finalized, Spence reserves the right to cancel the sale and refund the transaction in full.
Spence makes reasonable efforts to display the products listed for sale on the Website as accurately as possible. However, descriptions of products may be inaccurately displayed on the Website due to system, typographical or other errors. The colours we use, as well as the display and colour capabilities of your computer monitor, will affect the colours that you actually see on your screen. Spence cannot guarantee that your monitor’s display of any product colour, texture or detail will be accurate. In addition, some products may appear larger or smaller than their actual size in the product images displayed on the Website.
Spence does not warrant that product descriptions or other content displayed on the Website are accurate, complete, reliable, current or error free. If a product offered by Spence is not as described, your sole remedy is to return it in unused condition (with any accompanying documents, if applicable) in accordance with the terms and conditions of our Returns Policy (defined below).
In compliance with industry standards and FTC regulations, Spence hereby informs you that carat total weight for each purchase made through the Website may vary by up to 0.05 carats from stated weight. On the Website, we provide the measurement of our products based on our manufacturing specifications, but there may be slight variations in the measurement of the actual product based on the manufacturing process.
All products purchased via this Website are subject to our Returns Policy, which can be viewed by clicking here (the “Returns Policy”). The terms of the Returns Policy are incorporated into this Agreement by this reference and you hereby acknowledge that you have read, understood and agree to the terms and conditions of the Returns Policy.
Please note that products purchased through the Website are not eligible for in-store return, and must be returned in accordance with the returns process for online purchases set forth in the Returns Policy.
To offer our customers the best value, we do not allow comparison purchasing. Comparison purchasing is the act of buying several items, with the intent of keeping the one you like best and returning the remainder. This causes undue restocking and inventory overhead, and can be very costly. We reserve the right to deny access to the Website to any users who we believe are engaging in comparison purchasing activity. To confirm the quality of a jewellery item, please call us at 1.866.556.3844, and we would be happy to help you make your choice.
Unless you provide Spence with a valid and accurate tax-exemption certificate applicable to your product purchase and ship-to location, you are responsible for sales tax and any other taxes or governmental fees associated with your order. You may qualify for tax exemptions from time to time in which case Spence requests that you provide it with a valid certificate of exemption or other appropriate documentary proof of exemption. The product prices listed on the Website shall exclude all applicable sales, use or value-added tax (each, a “VAT”). Unless otherwise specified in writing by Spence, you shall pay all freight, insurance, and taxes (including but not limited to import or export duties, excise taxes and VAT). Spence shall provide you with a valid invoice in accordance with VAT requirements or other applicable law.
In the event that you are required by law to make a withholding or deduction in respect of the price payable to Spence, you will make the relevant payments to Spence net of the required withholding or deduction. You will supply to Spence evidence (e.g. official withholding tax receipts and proof of remittance), to the reasonable satisfaction of Spence, that you have accounted to the relevant authority for the sum withheld or deducted. If such evidence is not provided to Spence within 60 days of remittance to the applicable tax authority, Spence may impose a penalty payment on you, and you will be liable for such penalty, in the amount of the withholding imposed on that particular transaction.
ONLINE TRANSACTIONS & SHIPPING
When you purchase products or services via the Website you must pay for those products or services at the time of purchase, in the manner specified on the Website. We make no guarantee as to the availability of products or services advertised as available for purchase through the Website.
We fully insure each order all the way to you. That means that when your order is in transit to you, shipment is always covered by our insurance coverage. For added security, it is our policy that a signature is required for all Spence Diamonds orders, regardless of any signature waivers you may have in place with FedEx.
Products purchased through the Website are currently only eligible for shipping to Canada and the United States of America. If you prefer, we can ship your order to an address other than your billing address. As a security precaution, we require that your alternate shipping address be on file with your credit card company. This step helps protect you from fraudulent charges to your credit card. If you would like to arrange delivery to a FedEx location, please call one of our Customer Service Representatives at 1.866.556.3844.
For deliveries to Canada and the USA, Spence ships using FedEx. Shipping fees will be displayed on the Website at the time of purchase. While we use reasonable efforts to have products purchased through the Website delivered to you within any time frames indicated on the Website in connection with your purchase, we make no guarantee as to the delivery date of products purchased through the Website as actual delivery is outside of our reasonable control.
Your purchase and the delivery of products may be subject to loading charges, freight, shipping insurance, handling charges, storage fees, and any taxes and duties (including without limitation customs duties) payable in connection with the purchase, shipment or delivery of ordered products. You acknowledge and agree that the payment of such fees and charges are always your responsibility. Spence has no control over these fees and charges and cannot predict what they may be. Customs policies vary widely from country to country, so you should contact your local customs authority for further information. You should also note that when customs clearance procedures are required, it could cause delays exceeding our original shipping estimate.
At Spence, we stand behind our products with the renowned Spence Guarantee.
If you are shipping product(s) purchased through the Website to an address in Canada, such products shall be covered by the Spence Guarantee – Canada (including without limitation the “Guarantee – Not So Small Print” document forming part thereof), which can be viewed by clicking here (the “Canadian Guarantee”) and, for the purposes of each such purchase, the terms and conditions of the Canadian Guarantee shall be incorporated into this Agreement.
If you are shipping product(s) purchased through the Website to an address in the United States of America such products shall be covered by the Spence Guarantee – USA (including without limitation the “Guarantee – Not So Small Print” document forming part thereof), which can be viewed by clicking here (the “USA Guarantee”) and, for the purposes of each such purchase, the terms and conditions of the USA Guarantee shall be incorporated into this Agreement.
INTELLECTUAL PROPERTY RIGHTS
All content, information and materials contained within the Website, including without limitation all images, text, illustrations, designs, icons, photographs, video, audio, software, documents and other materials that are distributed through the Website and all the products available on the Website, are intellectual property owned, controlled or licensed by Spence, its affiliates or are owned by third parties and appear in the Website with the permission of their respective owners. Accordingly, such materials are protected by law, including but not limited to Canadian and United States copyright, patent, trade secret, trade dress and trademark law, as well as other provincial, state, national, and international laws and regulations. Spence and its affiliates and licensors expressly reserve all intellectual property rights in all data, text, programs, products, processes, technology, content, and other materials that appear on this Website. Except as otherwise expressly provided in this Agreement, your use and access of the Website does not confer any license under any of Spence’s or any third party’s intellectual property rights. The compilation and “look and feel”(meaning the collection, arrangement and assembly) of all information and content on this Website is the exclusive property of Spence and is also protected by Canadian and United States and international copyright law. You agree not to copy, modify, adapt, reproduce (except as expressly permitted herein), publish, translate, distribute, transmit, display, reverse engineer, decompile, create derivative works from, sell or participate in the sale of, dissemble or in any way exploit any aspect of the Website.
USE OF WEBSITE
You are granted a personal, limited, revocable, non-sublicensable license to access and use the Website and electronically copy (except where prohibited without a license) and print to hard copy portions of the data and information contained on the Website (the “Website Materials”) for your informational, non-commercial and personal use only. Such license is subject to the terms of this Agreement and you shall not: (a) resell or use for commercial purposes the Website or the Website Materials; (b) collect and use any product listings, pictures or descriptions from the Website for commercial purposes; (c) distribute, publicly perform or publicly display the Website or any Website Materials; (d) modify or otherwise make any derivative uses of the Website or the Website Materials, or any portion thereof; (e) use any automated means to access, monitor or interact with any portion of the Website, including through data mining, robots, spiders, scraping, or similar data gathering or extraction methods; (f) download (other than page caching) of any portion of the Website or the Website Materials, except as expressly permitted herein; (g) cause to appear any pop-up, pop-under, exit windows, expanding buttons, banners, advertisement, or anything else which minimizes, covers, or frames or inhibits the full display of the Website; (h) use the Website in any way which interferes with the normal operation of the Website; or (i) use the Website or the Website Materials other than as expressly permitted herein. Any use of the Website or the Website Materials other than as specifically authorized herein, without the prior written permission of Spence is strictly prohibited and will result in the termination of the license granted by Spence 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 herein, nothing in this Agreement shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication, or otherwise. The licenses granted hereunder are revocable by Spence at any time.
MODIFICATIONS TO SITE
Spence reserves the right to modify or discontinue, temporarily or permanently, the Website (or any part thereof) with or without notice. You agree that Spence shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Website.
COMMENTS & SUGGESTIONS
We appreciate hearing from our customers and welcome your comments, ideas, suggestions and other feedback regarding the Website and the products and services offered for sale by Spence, provided that such Feedback is not illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights or otherwise objectionable or injurious to Spence or third parties and do not contain or consist of viruses, political campaigning, commercial solicitation, chain letters, mass mailings or any form of “spam.” You may not use a false email address, impersonate any person, or otherwise mislead us as to the origin of any comment or suggestion.
By transmitting any comments, ideas, suggestions, feedback, information, material, or other content (collectively, “Feedback”) to Spence, you automatically grant Spence the royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, redistribute, transmit, perform and display such Feedback (in whole or part) worldwide and/or to incorporate it in other products and works in any form, media, or technology now known or later developed for the full term of any rights that may exist in such Feedback. Further, Spence is free to use any ideas, concepts, know-how, techniques, and suggestions contained in any communications and Feedback you send to Spence through the functionality of or in connection with the Website without compensation to you and for any purpose whatsoever, including but not limited to developing, creating, manufacturing, and marketing products and services using such information and Feedback.
LINKS TO OTHER WEBSITES AND SERVICES
The Website may permit you to link to other websites or resources on the Internet, and other websites or resources may contain links to the Website. These other websites are not under Spence’s control, and you acknowledge that Spence is not responsible or liable for any third party content, including but not limited to the accuracy, integrity, quality, usefulness, legality, appropriateness, safety or intellectual property rights of, or relating to, such third party content or any other aspect of such websites or resources. The inclusion of any such link does not imply endorsement by Spence or any association with its operators. You further acknowledge and agree that Spence shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such third party content, products or services available on or through any such website or resource. Access and use of third party sites, including the information, material, products and services on third party sites or available through third party sites, is solely at your own risk
REPRESENTATIONS AND INDEMNIFICATION
You hereby represent, warrant and covenant to Spence that you will use the Website, and any products purchased through the Website, in accordance with all applicable local, provincial, federal, state, national and international laws and regulations, and in accordance with the terms of this Agreement.
You agree to defend, indemnify and hold Spence and its affiliates and each of their respective directors, officers, employees, shareholders, contractors or other representatives harmless from and against any and all claims, damages, costs and expenses, including legal fees, arising from or related to or arising from (a) your use of the Website; or (b) your breach of any representation, warranty, condition or other provision of this Agreement.
DISCLAIMER OF WARRANTY
EXCEPT AS EXPRESSLY STATED TO THE CONTRARY IN THIS AGREEMENT, THE WEBSITE, THE CONTENT CONTAINED THEREON AND THE PRODUCTS AND SERVICES PURCHASED THROUGH OR IN CONNECTION THEREWITH ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. SPENCE HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT WITH RESPECT TO THE WEBSITE, THE CONTENT CONTAINED THEREIN AND THE PRODUCTS AND SERVICES PURCHASED THROUGH OR IN CONNECTION THEREWITH. SPENCE DOES NOT REPRESENT OR WARRANT THAT INFORMATION AND MATERIALS ON THE WEBSITE ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. SPENCE DOES NOT REPRESENT OR WARRANT THAT THE WEBSITE OR THE SERVERS AND SYSTEMS THAT HOST THE WEBSITE OR OTHERWISE MAKE THE WEBSITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOUR USE OF THE WEBSITE AND ALL CONTENT FORMING PART OF OR RELATED TO THE WEBSITE ARE YOUR SOLE RESPONSIBILITY AND AT YOUR RISK
Spence does not represent or warrant that the Website, or any part thereof, is appropriate or available for use in any particular jurisdiction. Those who choose to access the Website 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 Website’s availability, in whole or in part, to any person, geographic area or jurisdiction we choose, at any time and in our sole discretion.
LIMITATION OF LIABILITY
NEITHER SPENCE NOR ITS AFFILIATES, NOR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, CONTRACTORS OR OTHER REPRESENTATIVES SHALL BE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING DIRECTLY OR INDIRECTLY FROM OR IN CONNECTION WITH ANY USE OF THE WEBSITE, THE INABILITY TO USE THE WEBSITE, THE INFORMATION (INCLUDING PRODUCT INFORMATION) CONTAINED ON THE WEBSITE, PRODUCTS AVAILABLE OR PURCHASED THROUGH THE WEBSITE, OR TRANSACTIONS CONDUCTED THROUGH THE WEBSITE, EVEN IF SPENCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT BUT EXCEPT AS EXPLICITLY SET FORTH IN THE SPENCE GUARANTEE – CANADA OR SPENCE GUARANTEE – USA, AS APPLICABLE, IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF SPENCE AND ITS AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, CONTRACTORS OR OTHER REPRESENTATIVES, ARISING DIRECTLY OR INDIRECTLY FROM THE WEBSITE OR ANY PRODUCTS AVAILABLE OR PURCHASED THROUGH THE WEBSITE EXCEED THE LESSER OF (A) THE AMOUNT PAID BY YOU TO SPENCE FOR ANY SINGLE RELEVANT PRODUCT THAT IS SUBJECT TO DISPUTE
OR A CLAIM AND (B) $1,000. YOU HEREBY ACKNOWLEDGE THAT ALL OF THE PROVISIONS OF THIS SECTION WILL APPLY TO ALL USE OF THE WEBSITE, THE INFORMATION (INCLUDING PRODUCT INFORMATION) CONTAINED ON THE WEBSITE, PRODUCTS AVAILABLE OR PURCHASED THROUGH THE WEBSITE, AND TRANSACTIONS CONDUCTED THROUGH THE WEBSITE.
BECAUSE SOME COUNTRIES, PROVINCES AND STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, THE ABOVE LIMITATIONS OR EXCLUSION MAY NOT APPLY TO YOU.
Applicable LAW AND VENUE
This Agreement and any purchases made in connection with this Agreement or the Website shall be governed by the laws of British Columbia and the federal laws of Canada applicable therein, without regard to conflict of laws rules. Spence and you hereby exclude the application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement. The Website (excluding linked websites) is controlled by Spence from its offices within the Province of British Columbia, Canada. The Website can be accessed from all provinces and territories of Canada, as well as from other countries around the world. As each of these jurisdictions has laws that may differ from those of the Province of British Columbia, by accessing the Website, you agree that all matters relating to access to, or use of, the Website, or any other hyperlinked website, shall be governed by the laws of the Province of British Columbia and the federal laws of Canada applicable therein. You also agree and hereby submit to the exclusive personal jurisdiction and venue of the courts of the Province of British Columbia and acknowledge that you do so voluntarily and that you are responsible for complying with local laws.
All disputes, claims or controversies arising out of or in connection with or in any way relating to this Agreement or its construction, whether in contract or tort, or for restitution of any kind, pursuant to any statute, regulation, or other law, shall be referred to and finally resolved by a single arbitrator (the “Arbitrator”) pursuant to the Arbitration Act, R.S.B.C. 1996, c. 55, as amended, or the International Commercial Arbitration Act, R.S.B.C. 1996, c. 233, as amended, as the case may be. The place of arbitration will be Vancouver, British Columbia, Canada. The decision of the Arbitrator on all issues or matters submitted to the Arbitrator for resolution shall be conclusive, final and binding on all of the parties. The Arbitrator shall determine who shall bear the costs of arbitration pursuant to this section. You and Spence also agree and hereby submit to the exclusive personal jurisdiction and venue of the Supreme Court of British Columbia for the purposes provided for in the Arbitration Act or the International Commercial Arbitration Act.
MODIFICATION AND NOTICE
You agree that Spence may modify this Agreement (including without limitation any documents referenced herein) and any other policies on the Website at any time and that posting the modified terms and conditions on the Website will constitute sufficient notice of such modification.
These terms are effective unless and until terminated by Spence. Spence may deny you access to the Website, if in its sole judgment you fail to comply with any term or provision of this Agreement. The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination of this Agreement for all purposes, and any obligations and liabilities hereunder with respect to products purchased prior to the termination date shall continue to apply to such purchase and such products notwithstanding any termination. This section and any other sections which ought reasonably to survive the termination of this Agreement (including without limitation the sections entitled “Intellectual Property Rights”, “Comments and Suggestions”, “Links to Other Websites and Services”, “Representations and Indemnification”, “Disclaimer of Warranty”, “Limitation of Liability”, “Applicable Law and Venue” and “General”) shall survive any actual or purported termination or expiry of this Agreement.
The waiver of any provision of the Agreement shall not be considered a waiver of any other provision or of Spence’s right to require strict observance of each of the terms herein. If any provision of the Agreement is found to be unenforceable or invalid for any reason, that provision shall be severable, and all other provisions shall remain in full force and effect. This Agreement constitutes the entire agreement between you and Spence relating to your use of the Website and purchases made through the Website.