Analysis & Grading

GIA Facetware® Terms of Use


TERMS OF USE AGREEMENT

Last Updated: October 20, 2009

THIS TERMS OF USE AGREEMENT(THE "AGREEMENT") IS A LEGALLY BINDING AGREEMENT BETWEEN THE GEMOLOGICAL INSTITUTE OF AMERICA, INC. ("GIA"), YOU AND THE LEGAL ENTITY YOU REPRESENT (COLLECTIVELY, "LICENSEE") REGARDING LICENSEE'S USE OF THE GIA FACETWARE® CUT ESTIMATOR (THE "SOFTWARE").

BY CLICKING THE "I ACCEPT" BUTTON OR OTHERWISE USING THE SOFTWARE, 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.

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, to access and use the Software via GIA's website for the sole purpose of obtaining predicted cut grades for specific polished round brilliant diamonds. All other rights not expressly granted to Licensee in this Agreement are reserved by GIA.

LIMITATIONS. Licensee shall not use the Software 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 Software and recording the predicted cut grades generated by the Software.

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 Software or Licensee will no longer have access to the Software. If Licensee continues using the Software 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 Software and documentation and all intellectual property rights in the Software 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 Software. Licensee shall not add any data or information to any such screen shot, screen print or other printed output from the Software, provided that Licensee may, subject to the first sentence of this paragraph, add its name to any such printed output from the Software. This paragraph shall survive the termination of this Agreement.

Reporting Cut Grades. Licensee may include on Licensee's website and in Licensee's promotional materials one or more statements similar to the following statement, provided such statements are truthful and accurate: "Licensee uses the GIA Facetware® Cut Estimator to formulate cut grades for round brilliant diamonds." If Licensee is a Report Issuer (as defined below), then Licensee must comply with the following requirements with respect to Reports (as defined below) issued by Licensee. Reports may include one of the following statements in connection with the display of a predicted cut grade calculated using the Software: "Cut grade" or "Cut grade formulated using GIA Facetware® Cut Estimator" or such other statement as GIA may specify from time to time in writing. Licensee may use the nomenclature used by GIA to describe cut grades appearing on Reports (i.e., Excellent, Very Good, Good, Fair and Poor). In addition, Licensee may include elsewhere on Reports one or more statements similar to the following statement: "The cut grade appearing on this report was formulated using the GIA Facetware® Cut Estimator." No report may state, suggest or imply that the cut grade appearing on the Report was issued or approved by GIA, that such cut grade is a GIA cut grade or that GIA endorses Licensee or the cut grades appearing on Licensee's Reports. Without limiting the foregoing, no Report may state that the predicted cut grade calculated using the Software or any other cut grade appearing on the Report is a "GIA cut grade" or "Facetware® cut grade." "Report Issuer" means a person or entity that generates or provides to third parties reports, certificates, analyses, appraisals, other documents, images or databases (collectively "Reports" and individually a "Report") that record information about the cut of a diamond and other relevant information pertaining to the diamond, including for example one or more of the following: weight, color grade, clarity grade, and similar items describing the diamond, for the purposes of giving the buyer of the diamond and/or others additional confidence knowing that such person or entity has verified the grading and characteristics of the diamond, whether such person or entity is an independent third party, a secondary party, such as an appraiser to a private party, or a self certifying company that issues Reports. This paragraph shall survive the termination of this Agreement with respect to diamonds for which predicted cut grades were calculated prior to the termination of this Agreement.

No Other Use of GIA Name or Trademarks. Except as expressly provided in this Agreement, no other 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

Acknowledgements Regarding the Software . Licensee acknowledges that:
 

  • The predicted cut grade generated by the Software provides an approximate prediction of the overall cut grade that a particular standard round brilliant diamond would receive from GIA based on GIA's examination and measurement of the diamond's proportions and other limiting parameters.

     

  • The actual overall cut grade received from GIA for a diamond may differ from that predicted by the Software for the following reasons:

     

    • The diamond's actual proportions (e.g., the crown angle of the diamond) or parameters (e.g., the symmetry of the diamond) as determined by GIA are different than the proportions or parameters for the diamond as input into or assumed by the Software.

       

    • The measurement accuracy and tolerances of different measurement methodologies and optical devices used to measure a diamond's proportions or parameters may differ from those used by GIA.

       

    • The user did not use the software properly, or did not follow instructions to calculate or derive parameters for entry into the software.

       

  • The Software is intended to calculate predicted cut grades for standard round brilliant diamonds on GIA's D-to-Z scale of color only.

     

  • The predicted cut grade is not a valuation, appraisal or guarantee and it is not a warranty or representation of the diamond's final cut grade as determined by GIA. The predicted cut grade may not be referred to as any of the foregoing.

     

  • The predicted cut grade is not a representation or warranty by GIA regarding the overall cut grade that a particular round brilliant diamond would receive from GIA based on the diamond's proportions and other parameters.

     

  • Proportion ranges shown in the Software represent those most typically seen in the trade. Predicted cut grades for diamonds with proportions or parameters outside these ranges are not available.

     

  • The Software is intended for use with round brilliant diamond sizes 0.15 carats and larger.

     

Disclaimers. GIA MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED OR STATUTORY REGARDING THE "UP-TIME" OF ANY GIA WEBSITE, THE SOFTWARE, ANY PREDICTED CUT GRADE, OR THAT SUCH WEBSITES OR THE SOFTWARE WILL BE AVAILABLE TO LICENSEE AT ANY PARTICULAR TIME. THE SOFTWARE, 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 SOFTWARE, 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 SOFTWARE OR THE WEB SITE USED TO ACCESS THE SOFTWARE 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 SOFTWARE. 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 Software or any predicted cut grade calculated by the Software. 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 Software 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 Software, 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 SOFTWARE 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 Software 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 Software available on the GIA website. Upon any termination of this Agreement, all licenses granted in this Agreement shall automatically and immediately terminate.

GENERAL. The following paragraphs shall survive the termination of this Agreement.

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 Software. 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, CA92008-4699
. 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.