DEFINITIONS: Eterneva and Customer may be referred to herein individually as a “Party” and together as the “Parties.” Capitalized terms not defined herein shall have the meaning set forth in the Order Form associated herewith. The Order Form and these Terms and Conditions (“T&C”) shall collectively constitute the “Agreement.”
CANCELLATION; TERMINATION: Eterneva may refuse a Customer’s Order Form in Eterneva’s discretion. Eterneva may terminate this Agreement with or without cause at any time prior to Eterneva’s commencement of the purification process in which the Material is purified into carbon. If Eterneva terminates this Agreement without cause, Customer shall be entitled, as Customer’s sole and exclusive remedy, to a refund of the purchase price paid in connection with the Agreement as well as a return of the Material in Eterneva’s possession. Due to the customized nature of the Services, Customer expressly acknowledges and agrees that, after Customer’s payment is received by Eterneva, Customer may not terminate this Agreement unless agreed to in writing by Eterneva. Eterneva will hold an Order Form upon Customer written request for no longer than ninety (90) days.
ACKNOWLEDGMENTS: Customer hereby expressly acknowledges and agrees that (a) the Diamond will be created using certain genetic carbon material in addition to the Material; (b) Customer sends the Material to Eterneva at Customer’s own risk (c) Eterneva will not be in possession or control of the Material at all times; (d) provision of the Services requires transport by common carriers and may also involve services provided by third party subcontractors; (e) Customer is responsible for notifying Eterneva of any changes in address from the address set forth in the Order Form (including for any designated Contingent Beneficiary), and Eterneva will not be responsible for any Diamond that is sent to the wrong address due to a Customer’s failure to notify of such change; (f) title and risk of loss with respect to the Diamond shall transfer to Customer upon delivery, and if the Diamond is lost or damaged prior to delivery, then Eterneva shall, at Eterneva’s option, either replace or refund the purchase price of the Diamond; provided that Customer acknowledges that replacement will not be possible unless sufficient Material exists to create another Diamond; (g) while Eterneva will make commercially reasonable efforts to complete the Services and ship the Diamond to Customer within 12 months from the Order Date, Eterneva shall not be liable for any delay with respect to the Services or delivery of the Diamond; (h) in the case of a colored Diamond, Customer expressly acknowledges and agrees that Eterneva cannot and does not ensure the exact hue of the Diamond due to the personal nature of the carbon being used; (i) ETERNEVA SHALL NOT BE LIABLE FOR ANY MIS-SHIPPED OR LOST MATERIAL DURING TRANSIT, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR MIS-SHIPPED OR LOST MATERIAL DURING TRANSIT SHALL BE RECOVERING UNDER ANY INSURANCE PURCHASED BY CUSTOMER WITH RESPECT TO THE SHIPMENT; (j) Customer is responsible for insuring the Diamond after delivery against any loss or theft; and (k) Customer’s insurance company may not insure the full value of the Diamond due to any difference between eternal diamond prices and appraised diamond prices.
RETENTION OF CARBON: If there is any leftover carbon after processing, Eterneva will retain the carbon in the event the Customer wishes to make additional Diamonds or replace a Diamond; provided that (i) Eterneva reserves the right to return the carbon at any time at Eterneva’s cost and expense and (ii) Eterneva will return the leftover carbon upon Customer’s request and at Customer’s cost and expense.
RIGHT TO SHARE: Unless Customer specifies otherwise in writing, Eterneva reserves the right to post a Loved One’s photo or story on social media, and use a quote from any written correspondence with the Customer.
CONTINGENT BENEFICIARY: In the event of the death of the Customer, the Diamond will be shipped to and inure to the benefit of the Contingent Beneficiary designated in the Order Form. If no Continent Beneficiary is designated, then Eterneva shall ship the Diamond to the address set forth in the Order Form without liability.
REPRESENTATIONS AND WARRANTIES; OTHER MATTERS: (a) Customer hereby represents and warrants to Eterneva that (i) Customer is authorized to obtain, transport and provide Eterneva the Material in order for Eterneva to provide the Services, including transformation of the Material into a Diamond, and (ii) this Agreement, and the performance of the Services, does not require the consent or approval of any third party and does not violate any agreement, document, order or testamentary or similar instrument. Customer hereby grants Eterneva the irrevocable and perpetual right to take possession of and use the Material for the purpose of providing the Services, and Eterneva may rely on this Section. (b) EXCEPT AS SPECIFICALLY PROVIDED BY ETERNEVA IN WRITING, THE DIAMOND AND THE SERVICES ARE PROVIDED “AS IS.” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ETERNEVA EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED WITH RESPECT TO THE SERVICES OR THE DIAMOND (INCLUDING ANY INFORMATION PROVIDED BY ETERNEVA TO CUSTOMER IN CONNECTION THEREWITH) INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT AND/OR FITNESS FOR A PARTICULAR PURPOSE, AND/OR ANY IMPLIED WARRANTY ARISING OUT OF A COURSE OF DEALING OR PERFORMANCE, CUSTOM OR USAGE OF TRADE. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT, DUE TO THE NATURE OF THE PROCESSES EMPLOYED IN CONNECTION WITH SERVICES, THE ACTUAL APPEARANCE AND QUALITY OF THE DIAMOND PRODUCED BY THE SERVICES MAY VARY AND ETERNEVA PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, THAT THE DIAMOND OR THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE.
INDEMNIFICATION: Customer shall hold harmless, defend and indemnify Eterneva and its affiliates, and their respective officers, directors, shareholders, members, managers, employees, agents, representatives, successors and assigns, from any and all claims, liabilities, losses, damages, costs, expenses, fines or fees (including attorneys’ fees and other legal costs and expenses) that result from or arise out of: (a) Customer’s collection and/or transfer of possession and control of the Material to Eterneva; (b) Customer’s or its successor’s use of the Diamond; (c) the Services or other activities carried out pursuant to this Agreement, including the possession, handling or transformation of the Material by Eterneva or its agents or contractors; (d) any violation of applicable law by Customer or its agents; and/or (e) Customer’s breach or alleged breach of this Agreement. This Section shall survive any termination of this Agreement.
LIMITATION OF LIABILITY: Notwithstanding anyTHING TO THE CONTRARY, In no event shall ETERNEVA be liable for exemplary, special, INCIDENTAL, consequential, remote, indirect or punitive damages, regardless of the form of action, be it in contract, warranty, special liability or otherwise, even if ETERNEVA was advised of the possibility of such damages. In no event shall eterneva be liable for damages in excess of the amounts paid by customer under this agreement. This Section shall survive any termination of this Agreement.
DISCLAIMER: Once the Diamond has been created, at the option of Customer and subject to an additional fee, Eterneva may consult with Customer to set the Diamond in a setting of Customer’s choice. Notwithstanding the foregoing, Eterneva shall not be responsible for any services to the Diamond, including with respect to any setting or cleaning, unless expressly agreed to in writing by Eterneva.
NOTICES: All notices, approvals or other communications required or permitted under this Agreement, shall be sent in writing by overnight mail, email (provided that, in the case of email notices sent to Eterneva, such notice is sent to the then-current email address for Eterneva’s then-current [Co-Founder, President or CEO], and provided further that email notice shall only be effective if the applicable Party receiving notice via email confirms receipt by reply email), courier or registered mark with postage prepaid, to the contact details as may be designated by either Party by prior written notice. In addition, all notices shall also be transmitted simultaneously by email to the other Party if such notices were not originally sent via email. Any notice or other communication delivered by overnight mail will be deemed to have been received the first business day after it is sent. Any notice or other communication sent by courier will be deemed to have been received on the third business day after its date of posting. Any notice or other communication sent by registered mail will be deemed to have been received on the third business day after its date of posting.
GOVERNING LAW: This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, without regard to its conflict of law principles. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH HEREIN, CUSTOMER ACKNOWLEDGES THAT No rights or remedies referred to in Article 2 of the Uniform Commercial Code (“UCC”) and/or the United Nations Convention on the International Sale of Goods (“CISG”), or any similar law, in any case, as enacted in any jurisdiction, shall apply to or will be conferred on cUSTOMER IN CONNECTION HEREWITH, AND CUSTOMER HEREBY DISCLAIMS THE APPLICATION OF THE UCC AND CISG TO THIS AGREEMENT.
ATTORNEYS’ FEES: In the event that Eterneva deems it necessary to commence any legal proceeding to enforce or interpret any term of this Agreement, Eterneva shall be entitled to recover its reasonable attorneys’ fees and costs from Customer.
FORCE MAJEURE: Eterneva shall not be liable for failure or delay in performing its obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control, including acts of any governmental body, war, equipment breakage, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, or inability to obtain raw materials, supplies or power used in or equipment needed for provision of the Services.
ASSIGNMENT: Customer may not assign this Agreement to any person or entity without the prior written consent of Eterneva, which may be withheld in Eterneva’s discretion.
INDEPENDENT CONTRACTOR RELATIONSHIP: The Services performed by Eterneva under this Agreement are provided on an arm’s length, independent contractor basis. As such, the employees, agents and subcontractors of one Party are not for any purpose the employees, agents and subcontractors of the other Party. This Agreement does not constitute any Party as the agent of another or imply that the Parties intend to form a partnership or other form of association in which any Party may be liable for the acts or omissions of another. Neither Party has any power to bind the other Party except as expressly provided for in this Agreement.
ENTIRE AGREEMENT: This Agreement is the sole agreement with respect to the subject matter hereof and except as expressly set forth herein, supersedes all other agreements and understandings between the Parties with respect to the same. Any terms or conditions appearing on the face or reverse side of any writing, acknowledgment or confirmation that are different from, or in addition to, those required in this Agreement shall not be binding on the Parties, even if signed and returned, unless both Parties expressly agree in a separate writing to be bound by such separate or additional terms and conditions.
BINDING EFFECT: This Agreement shall be binding upon and inure to the benefit of the Parties and their respective legal representatives, successors and permitted assigns, as applicable.
WAIVERS: Eterneva’s failure to exercise or delay in exercising any right, power or remedy under this Agreement shall not operate as a waiver; nor shall Eterneva’s single or partial exercise of any right, power or remedy preclude any other or further exercise by Eterneva of that or any other right, power or remedy.
SEVERABILITY: If any provision of this Agreement is held to be invalid or unenforceable it is to be severed from this Agreement so far as possible and the remaining provisions are not in any way be affected or impaired and this Agreement is to be construed so as to most nearly give effect to the intent of the Parties as it was originally executed.
FURTHER ASSURANCE: Customer shall take all such actions and shall execute, acknowledge and deliver all such instruments, assignments, transfers, consents and other documents as may reasonably be requested by Eterneva in order to implement fully this Agreement, and to consummate the transactions contemplated hereby.
AMENDMENT: This Agreement may be amended, modified, superseded or canceled, and any of the terms may be waived, only by a written instrument executed by each Party or, in the case of waiver, by the Party waiving compliance.
THIRD PARTY BENEFICIARIES: This Agreement is for the sole benefit of the Parties and their respective heirs, successors and permitted assigns, as applicable, and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement.
INDEPENDENT COUNSEL: Customer recognizes that this Agreement is a legal document. Customer acknowledges that, prior to executing this Agreement; Customer was given the opportunity to seek independent legal counsel regarding this Agreement. By executing this Agreement, Customer acknowledges that Customer has reviewed this Agreement with independent legal counsel or has knowingly waived its opportunity to do so.
INTERPRETATION: With respect to this Agreement, the following interpretive provisions apply: (i) the term “business day” means a day other than a Saturday, Sunday or other day on which commercial banks in the State of Texas are authorized or required to close; (ii) headings used in this Agreement are for reference purposes and shall not be deemed to be part of this Agreement; (iii) the singular includes the plural and vice versa; (iv) words importing one gender include the other gender; and (v) a reference to a person refers to an individual or a corporation, limited liability company or other entity, as applicable.
COUNTERPARTS: The Parties may execute this Agreement in one or more counterparts, each of which shall be deemed an original, but both of which together shall constitute one and the same instrument. An electronic reproduction (such as portable document format) or electronic signature of this Agreement shall be valid and have the same force and effect as a manually signed original.