These Terms and Conditions of Sale and any and all terms listed in the Warranty and User Guide (collectively, the “Agreement”) comprise the entire agreement between Gemological Institute of America, Inc., with offices at The Robert Mouawad Campus 5345 Armada Drive, Carlsbad California 92008 (“GIA” or “Supplier”) and the customer (“Customer”) as listed on the order acknowledgement or invoice concerning Customer’s purchase of Supplier Products.
This Agreement supersedes, and its terms govern, any prior agreements including without limitation any conflicting terms in any nondisclosure agreements, representations, proposals or other communications, oral or written, between the parties with respect to the Products.
An end user software license agreement may be included with the Products (the “End User Software License Agreement”). If there is a conflict between this Agreement and the End User Software License Agreement, this Agreement shall control.
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Definitions. “Documentation” means any Supplier documentation for the Products made available by Supplier to Customer in hard copy form packaged or provided with the Products or in electronic form, including the Warranty and User Guide. Documentation does not include marketing materials.
“Products” means the products described online or on the GIA store sales invoice. - Prices and Payment. All orders are prepaid prior to shipment. Supplier’s prices do not include any foreign, federal, state or local sales, use or other similar taxes or duties or other fees (including any import or export fees or duties), however designated, levied against the sale, licensing, delivery or use of the Products and Services. Customer is solely responsible for and shall pay all such taxes, duties and fees, provided, however, that Customer shall not be liable for any taxes based on Supplier’s net income. If you are required to withhold any Taxes from any payments due GIA under this Agreement, then you agree to gross up the payment to GIA such that net payment received by GIA after your withholding of the Taxes is the price or fees for the Services. All payments shall be made in U.S. Dollars, unless otherwise specified by Supplier in writing. When wire payment is the selected method of payment, the customer is responsible for any applicable wire transfer fees. Wire transfer fees should not be deducted from total payment amount. The wire transfer payment amount received must match the total invoice amount.
- Order Procedure; Delivery; Acceptance. All orders of the Products shall be made online at Store.GIA.edu. Supplier will use commercially reasonable efforts to deliver Products within a reasonable timeframe. Supplier will not be liable for any failure to ship complete orders or for any shipment delay. Supplier’s ability to deliver Services will depend on Customer’s reasonable and timely cooperation and the accuracy and completeness of any information from Customer needed to deliver the Services. All Products will be delivered EXW incoterm. Unless specified otherwise, Supplier will select the mode of delivery and the carrier. Title and all risk of loss of, or damage to Products, will pass to Customer upon delivery by Supplier to the carrier, freight forwarder, or Customer, whichever occurs first. Customer will be responsible for and pay all packing, delivery, freight, and insurance charges, which charges Supplier may require Customer to pay in advance. All Products will be deemed accepted upon delivery and Customer may not reject any Product.
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Limited Warranty; Disclaimer of Warranties. The warranty made by GIA with respect to each Product is the warranty in the Documentation. Supplier makes no representations or warranties regarding any Services. Non-Supplier branded products receive warranty coverage as provided by the relevant third party supplier. The warranty for the Product, if any, shall not apply: (i) if the Products are not used in accordance with the Documentation; (ii) to any modifications to any Products that are not made by Supplier; (iii) if a defect is due to any third party hardware or software; (iv) if Products are damaged by factors or circumstances outside of Supplier’s control including without limitation to accident, fire, electrical surges and water exposure, and acts of God, (v) malware, virus, worms introduced into the Products after delivery to the Customer, or (vi) any defects or failures in the Products that arise from negligence or abuse by Customer.
Except as otherwise provided in the Documentation, GIA’s sole obligation, and Customer’s exclusive remedy, for any breach of the Products warranty shall be, at GIA’s option, to repair any defective Products or replace any defective Products with a conforming Products, or, to refund any monies paid by Customer to GIA for such non-conforming Products.
EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION OR THE EXPRESS WARRANTY IN THE DOCUMENTATION, SUPPLIER AND ITS LICENSORS AND SUPPLIERS MAKE NO OTHER EXPRESS OR IMPLIED WARRANTIES AND TO THE EXTENT PERMITTED BY LAW AND SUPPLIER AND ITS LICENSORS AND SUPPLIERS SPECIFICALLY DISCLAIM AND EXCLUDE ALL OTHER WARRANTIES, WHETHER STATUTORY, EXPRESS, OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING DUE TO COURSE OF CONDUCT OR USAGE OF TRADE. SUPPLIER DOES NOT REPRESENT THAT THE USE OF THE PRODUCTS WILL BE COMPLETELY SECURE, UNINTERRUPTED, OR ERROR-FREE OR THAT ANY ERRORS WILL BE CORRECTED. SOME STATES DO NOT PERMIT THE DISCLAIMER OF WARRANTIES IN CERTAIN CIRCUMSTANCES AND SO PORTIONS OF THE FOREGOING MAY NOT APPLY TO CUSTOMER. - Limited Liability. IN NO EVENT SHALL SUPPLIER’S LIABILITY TO CUSTOMER EXCEED THE AGGREGATE AMOUNTS PAID BY CUSTOMER TO SUPPLIER FOR THE PRODUCTS AND SERVICES THAT ARE THE SUBJECT OF THIS AGREEMENT. NEITHER SUPPLIER NOR ITS SUPPLIERS OR LICENSORS SHALL BE LIABLE TO CUSTOMER OR ANY OTHER ENTITY FOR ANY (A) SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES; (B) LOST PROFITS, LOST BUSINESS, OR LOST OR CORRUPTED DATA; OR (C) COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS, TECHNOLOGY, GOODS, OR SERVICES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS IN THIS SECTION SHALL APPLY (A) NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY; (B) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; AND (C) REGARDLESS OF THE FORM OF ACTION, WHETHER BREACH OF CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), OR OTHER THEORY OF LIABILITY. SOME STATES DO NOT PERMIT THE LIMITATION/EXCLUSION OF DAMAGES IN CERTAIN CIRCUMSTANCES AND SO PORTIONS OF THE FOREGOING MAY NOT APPLY TO CUSTOMER.
- Proprietary Rights; Feedback. Customer shall not disclose, provide, or otherwise make available any trade secrets, copyrighted material, or other intellectual property rights embodied in the Products or Documentation in any form to any third party without the prior written consent of Supplier. Customer shall implement reasonable security measures to protect such trade secrets and copyrighted material. Customer acknowledges and agrees that Supplier and its licensors own all right, title, and interest, including without limitation any and all patents, copyrights, and trade secrets, embodied in the Products and Documentation. To the extent that Supplier provides any Services to Customer, any developments, reports, studies or other work product that results from the Services remain owned by Supplier unless the parties agree otherwise in a writing signed by an authorized representative of Supplier. All feedback, ideas, suggestions, modifications and the like that Customer provides to Supplier under this Agreement (the “Supportive Information”) will belong to Supplier. Customer hereby assigns to Supplier all right, title, and interest in and to the Supportive Information and the related intellectual property rights. Customer hereby agrees to serve as a reference for Supplier’s potential customers, analysts, or investors via phone and/or email and participate in case studies as reasonably requested.
- License Terms. If any Products are or include software provided by Supplier, and there is not a separate end user license agreement included with the Products, the following terms will apply: Supplier grants Customer a non-exclusive, terminable, license to use the version or release of the Supplier-branded software so provided by Supplier. Permitted use is for Customer’s internal purposes only (and not for further commercialization or the benefit of any third party), and is subject to any specific Documentation provided with the software product. For non-Supplier branded software, the third party’s license terms will govern use of such software. Customer may order new software versions, releases or maintenance updates (“Updates”), if available, separately or through any Supplier software support agreement. Additional licenses or fees may apply for these Updates or for the use of the software in an upgraded environment. Updates are subject to the license terms in effect at the time that Supplier makes them available to Customer. Supplier may monitor use/license restrictions remotely and, if Supplier makes a license management program available, Customer agrees to install and use it within a reasonable period of time. Customer may make a copy or adaptation of a licensed software product only for archival purposes or when it is an essential step in the authorized use of the software. Customer may use this archival copy without paying an additional license only when the primary system is inoperable. Customer may not copy licensed software onto or otherwise use or make it available on any public external distributed network. Licenses that allow use over Customer’s intranet require restricted access by authorized users only. Customer will also not modify, reverse engineer, disassemble decrypt, decompile, or make derivative works of any software licensed to Customer under this Agreement unless permitted by statute notwithstanding this prohibition, in which case Customer will promptly in writing provide Supplier with reasonably detailed information about those activities. Unless otherwise specified in this Agreement, any license granted is perpetual, except that if Customer fails to comply with this Agreement, Supplier may terminate the license upon written notice. Immediately upon termination, or in the case of a limited-term license, upon expiration, Customer will either destroy all copies of the software or return them to Supplier, except that Customer may retain one copy for archival purposes only. Customer may not sublicense, assign, transfer, rent, or lease the software or software license except as permitted by Supplier in writing. Supplier-branded software licenses are generally transferable subject to Supplier’s prior written authorization and payment to Supplier of any applicable fees. Upon such transfer, Customer’s rights shall terminate and Customer shall transfer all copies of the software to the transferee. The transferee must agree in writing to be bound by the applicable software license terms. Subject to obtaining Supplier’s prior written authorization to transfer, Customer may transfer firmware only upon transfer of associated hardware. Supplier may audit Customer compliance with the software license terms. Upon reasonable notice, Supplier may conduct an audit during normal business hours (with the auditor’s costs being at Supplier’s expense). If an audit reveals underpayments, then Customer will pay to Supplier such underpayments. If underpayments discovered exceed five percent (5%) of the contract price, Customer will reimburse Supplier for the auditor costs. If software is licensed to Customer for use in the performance of a U.S. Government prime contract or subcontract, Customer agrees that consistent with Federal Acquisition Regulation (“FAR”) 12.211 and 12.212, commercial computer software, documentation and technical data for commercial items are licensed under Supplier’s standard commercial license. The software is a Commercial Item developed exclusively at private expense and comprised of “commercial computer software” and “commercial computer software documentation”, as these terms are defined in the applicable acquisition regulations, including without limitation the FAR at 48 C.F.R. 2.101. The software is licensed to U.S. Government End Users subject to the terms of this Agreement, as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) (for civilian agencies), and as specified in 48 C.F.R. 227.7202-3 and 48 C.F.R. 227.7202-4, consistent with 48 C.F.R. 227.7202 (for Department of Defense entities). Solely with respect to the U.S. Government’s rights in the software, this U.S. Government License Rights clause is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision of the contract under which this software is obtained. For clarity, the Manufacturer is Supplier.
- Indemnification. Customer shall, at its own expense, defend, indemnify and hold harmless GIA, its employees, officers, affiliates, and customers from any loss, liability, settlement, damage, expense, loss, or costs including without limitation attorney's fees with respect to any action, claim or proceeding that alleges (i) infringement of any patent, trademark, copyright, or other proprietary right of any third party by reason of the sale or use of any Products, provided that the foregoing shall not apply to any infringement resulting solely from Customer’s adherence to written specifications or drawings submitted by GIA; or (ii) product defects or the negligence of Customer. Customer's obligations under this section shall survive any termination of this Agreement. If Products become, or are likely to become, the subject of any claim of infringement of any patent, trademark, copyright or other proprietary right, Customer shall, at Customer’s expense, (i) procure the right for GIA to continue using the Products, (ii) replace or modify the Products so that they become non-infringing or (iii) at GIA's option, refund to GIA the amount paid. The foregoing alternatives are in addition to any other remedies GIA may have at law or in equity.
- Changes. GIA shall have the right at any time in its sole discretion to make any reasonable changes within the general scope of this Agreement. GIA reserves the right in its sole discretion to change designs or make additions to or improvements in its Products without imposing any obligations on itself to alter previously manufactured Products.
- Confidentiality. At any time during or subsequent to the term of this Agreement, Customer shall agree to keep in strictest confidence and trust all of Supplier’s confidential and proprietary information to which Customer has access. Customer agrees not to use or disclose Supplier’s confidential and proprietary information without the express written consent of Supplier.
- General. This Agreement will be governed and construed under the laws of the State of California, excluding its conflicts of law principals. Any action filed by either party arising or relating to this Agreement shall be brought in San Diego, California, and Customer irrevocably consents to and waives any objection to jurisdiction and venue in the state and federal courts located in San Diego, California. The United Nations Convention on the International Sale of Goods shall not govern this Agreement. The parties to this Agreement are independent contractors. Neither party shall be deemed to be an employee, agent, partner, or legal representative of the other for any purpose and neither shall have any right, power or authority to create any obligation or responsibility on behalf of the other. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect. Except for Customer’s payment obligations, neither party shall be deemed to be in breach of this Agreement for any failure or delay in performance caused by reasons beyond its reasonable control, including without limitation to acts of God, war, riots, orders of government, strikes, failure of the Internet, or shortages of materials. No modification, amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by duly authorized representatives of the parties. No failure or delay by either party in exercising any right, power, or remedy under this Agreement, except as specifically provided herein, shall operate as a waiver of any such right, power, or remedy. Customer will comply with all applicable laws in performing this Agreement and in connection with the Products. Customer agrees to comply fully with the U.S. export laws and to provide Supplier with such documentation, assurances, and access to records as may be required to obtain licenses under the U.S. export laws. These commodities, technology, or software are to be exported from the U.S. in accordance with the Export Administration Regulations. Diversion contrary to U.S. law is prohibited.
