Last Updated: February 1, 2006
BY CLICKING THE “I ACCEPT” BUTTON OR OTHERWISE USING THE TABLES, LICENSEE AGREES TO BE BOUND BY ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT.
THE PERSON CLICKING THE “I ACCEPT” BUTTON REPRESENTS, WARRANTS AND CERTIFIES THAT HE/SHE IS AUTHORIZED BY LICENSEE TO AGREE TO THE TERMS AND CONDITIONS IN THIS AGREEMENT.
You should print a copy of this Agreement for your records.
IF LICENSEE CLICKS THE “I DECLINE” BUTTON DO NOT USE THE TABLES.
LIMITED LICENSE. Subject to the terms in this Agreement, GIA hereby grants to Licensee a non-exclusive, personal, non-assignable, non-transferable limited license, without the right to sublicense, (i) to access and use the Tables via GIA’s website for the sole purpose of obtaining predicted cut grades for specific polished round brilliant diamonds and (ii) to print and reproduce screen shots of the Tables and other printed output from the Tables and to use such prints and reproductions solely for Licensee’s internal use for educational purposes. Licensee may not otherwise reproduce the Tables or any portion of the Tables. All other rights not expressly granted to Licensee in this Agreement are reserved by GIA.
LIMITATIONS. Licensees may not modify, distribute, display or perform the Tables or any portion of the Tables, including without limitation display or distribution by posting any Table or any part of a Table on any website or including a copy of a Table or portion of a Table with any Report (as defined below) distributed or made available by Licensee. Licensee shall not use the Tables to develop or create Licensee’s own database of diamond cut parameters. Licensee shall not, and shall not attempt to, discover or recreate the contents of the GIA cut database or any portion thereof, including without limitation by inputting multiple iterations and/or combinations of diamond parameters into the Tables and recording the predicted cut grades provided by the Tables.
CHANGES TO THIS AGREEMENT. GIA may from time to time change the terms and conditions in this Agreement. In such event, Licensee will either be provided notice of the change or be required to indicate Licensee’s acceptance of the revised Agreement. If Licensee does not agree with the changes, then Licensee will cease using the Tables or Licensee will no longer have access to the Tables. If Licensee continues using the Tables after receipt of GIA’s notice of a change to this Agreement or after Licensee’s acceptance of the revised Agreement, then Licensee will be deemed to have agreed to such change.
OWNERSHIP OF PROPRIETARY RIGHTS. Subject to the licenses granted by GIA in this Agreement, GIA is and will remain the sole and exclusive owner of all right, title and interest in and to the Tables and documentation and all intellectual property rights in the Tables and documentation, including without limitation, all copyrights, trade secret rights and patent rights. This paragraph shall survive the termination of this Agreement.
USE OF GIA TRADEMARKS; REPORTING CUT GRADES.
No Modification to Screen Shots or Reports. Licensee shall not remove, modify or obscure any data, trademark, service mark, logo, information or notices appearing on any screen shot, screen print or on other printed output from the Tables. Licensee shall not add any data or information to any such screen shot, screen print or other printed output from the Tables. This paragraph shall survive the termination of this Agreement.
No Other Use of GIA Name or Trademarks. No rights or licenses are granted to Licensee by GIA to use, reproduce or display the name of GIA or any GIA trademarks, service marks, trade names or logos, nor shall such right be implied, for any purpose.
ACKNOWLEDGEMENTS; NO WARRANTY.
Disclaimers. GIA MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED OR STATUTORY REGARDING THE “UP-TIME” OF ANY GIA WEBSITE, THE TABLES, ANY PREDICTED CUT GRADE, OR THAT SUCH WEBSITES OR THE TABLES WILL BE AVAILABLE TO LICENSEE AT ANY PARTICULAR TIME. THE TABLES, THE PREDICTED CUT GRADES AND SUCH WEBSITES ARE PROVIDED “AS IS.” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW GIA EXPRESSLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS WITH RESPECT TO THE TABLES, THE PREDICTED CUT GRADES AND GIA’S WEBSITES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. GIA DOES NOT WARRANT THAT THE OPERATION OF THE TABLES OR THE WEB SITE USED TO ACCESS THE TABLES WILL BE UNINTERRUPTED, BUG FREE, OR ERROR FREE. GIA DOES NOT MAKE ANY WARRANTIES OR REPRESENTATIONS AND SHALL HAVE NO LIABILITY WHATSOEVER REGARDING THE QUALITY, PERFORMANCE, FUNCTIONALITY, OR ANY OTHER ASPECT OF ANY THIRD PARTY SOFTWARE OR HARDWARE USED IN CONNECTION WITH THE TABLES. The disclaimers set forth in this paragraph and the acknowledgements set forth above shall survive the termination of this Agreement.
No Warranty to Licensee’s Customers; Indemnification by Licensee. GIA makes no representations or warranties of any kind to Licensee’s customers or any other person to whom Licensee communicates a diamond’s cut grade. Licensee shall not, and shall not have the have the right to, make any representation or warranty to any person on behalf of GIA regarding the Tables or any predicted cut grade provided by the Tables. Licensee will indemnify and hold GIA harmless from and against any claims, actions, demands, suits, proceedings, liabilities, losses, damages, settlement amounts, costs, expenses, and GIA’s reasonable attorneys’ fees and other defense related costs incurred by GIA arising out of, related to or connected with any claim, suit, action, demand, or proceeding by any customer or other third party relating to a cut grade received from Licensee. This paragraph shall survive the termination of this Agreement.
NO INDEMNIFICATION BY GIA. Licensee’s use of the Tables is being provided free of charge. Therefore, GIA will have no obligation to defend, indemnify or hold Licensee harmless for any third party claims, suits, actions, proceedings or demands arising out of or related to this Agreement or Licensee’s use of the Tables, or for any losses, damages, settlement amounts, liabilities or expenses incurred by Licensee in connection with such third party claims, suits, actions, proceedings or demands. This paragraph shall survive the termination of this Agreement.
LIABILITY LIMITATIONS. LICENSEE’S USE OF THE TABLES IS BEING PROVIDED FREE OF CHARGE. THEREFORE, IN NO EVENT SHALL GIA BE LIABLE TO LICENSEE IN ANY MANNER, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), INDEMNITY, BREACH OF WARRANTY OR OTHER THEORY, FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, STATUTORY, SPECIAL OR OTHER NON-COMPENSATORY DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF DATA, LOST BUSINESS OPPORTUNITY OR BUSINESS INTERRUPTION, REGARDLESS OF WHETHER GIA WAS ADVISED OF OR WAS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE TOTAL, CUMULATIVE AGGREGATE LIABILITY OF GIA REGARDING ANY AND ALL CLAIMS AND CAUSES OF ACTION, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE), INDEMNITY OR OTHERWISE, AND FOR ALL DAMAGES OF ANY KIND, EXCEED $US 100.00. THE LIMITATIONS SET FORTH IN THIS PARAGRAPH SHALL BE DEEMED TO APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES SET FORTH IN THIS AGREEMENT. LICENSEE ACKNOWLEDGES AND AGREES THAT IT HAS FULLY CONSIDERED THE FOREGOING ALLOCATION OF RISK AND FINDS IT REASONABLE, AND THAT THE FOREGOING LIMITATIONS IN THIS PARAGRAPH ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. This paragraph shall survive the termination of this Agreement.
TERMINATION. This Agreement will commence on the date Licensee clicks the “I Accept” button or begins using the Tables and will remain in effect until terminated as provided herein. This Agreement shall immediately terminate if (i) Licensee is in breach of any obligation under this Agreement or (ii) GIA elects to discontinue making the Tables available on the GIA website. Upon any termination of this Agreement, all licenses granted in this Agreement shall automatically and immediately terminate.
Relationship of Parties. GIA’s relationship with Licensee is that of an independent contractor, and nothing in this Agreement is intended to, or should be construed to, create a partnership, agency, joint venture, franchise or employment relationship. Neither party shall have the power to bind the other or incur obligations on the other’s behalf.
No Third Party Beneficiaries. Nothing contained in this Agreement is intended or shall be construed as creating or conferring any rights, benefits or remedies upon, or creating any obligations of the parties hereto toward, any person or entity not a party to this Agreement. Without limiting the foregoing, Licensee’s customers and clients shall not be third party beneficiaries of this Agreement.
Notices. All notices, consents, waivers, and other communications required by, authorized by or intended to have legal effect under this Agreement must be in writing and must be in English. Notices sent to Licensee by GIA will be sent to the e-mail address provided by Licensee when Licensee registers to use the Tables. Notices sent to GIA by Licensee should be sent by registered or certified mail, return receipt requested, to the Gemological Institute of America, Inc., Attention: General Counsel, 5355 Armada Drive, Carlsbad, CA 92008-4699. Notice to Licensee will be effective upon dispatch and notices to GIA will be effective upon receipt. Each party may change its address for receipt of notices by giving notice of the new address to the other party.
Governing Law; Attorneys’ Fees. This Agreement will be solely and exclusively governed, construed and enforced in accordance with the laws of the State of California, USA, without reference to conflict of laws principles. The United Nations Convention on Contracts for the Sale of International Goods does not apply to this Agreement. The prevailing party in any dispute, arbitration, litigation or other action shall be entitled to receive its reasonable attorneys’ fees, expert witness fees and out-of-pocket costs incurred in connection with such proceeding, in addition to any other relief it may be awarded.
English Language. This Agreement is prepared and executed in the English language only and any translations of this Agreement into any other language shall have no effect. All proceedings related to this Agreement shall be conducted in the English language.
Forum and Venue. Any suit, action or proceeding arising from or relating to this Agreement must be brought, solely and exclusively, in United States District Court in San Diego, California, USA or in the State courts in San Diego, California, USA and each party irrevocably consents to the jurisdiction and venue of any such court in any such suit, action or proceeding. Notwithstanding the foregoing, if Licensee is located outside the United States, then GIA may initiate a suit, action or proceeding in any court with personal jurisdiction over Licensee.
Compliance with Laws. Each party agrees to comply with all applicable laws, rules, and regulations in connection with its activities under this Agreement.
Waiver. The failure of either party to require performance by the other party of any provision of this Agreement will not affect the full right to require such performance at any time thereafter; nor will the waiver by either party of a breach of any provision of this Agreement be taken or held to be a waiver of the provision itself.
Severability. If any provision of this Agreement is unenforceable or invalid under any applicable law, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
Assignment. Licensee may not assign this Agreement nor any rights or obligations under this Agreement in whole or in part, including without limitation in connection with a change in control or by operation of law.
Entire Agreement. This Agreement completely and exclusively states the agreement between Licensee and GIA regarding its subject matter and it supersedes, and its terms govern, all prior or contemporaneous understandings, representations, letters of intent, memoranda of understanding, agreements, or other communications between the parties, oral or written, regarding such subject matter.