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Terms of Use

This Agreement governs the Terms & Conditions (the "Terms") related to all services (the "Services") offered by GemFind to you (the "Member"). To agree to these Terms, please click the "AGREE" button. If you do not agree to these terms and conditions, then do not click "AGREE", and do not use the GemFind services. 

1. GENERAL. 
1.1. Definitions. 
"Services" means all services provided by GemFind including, but not limited to, all website development services, online marketing services, webinars, consulting, virtual inventory data services, diamond search tools, jewelry builders, and website tools. 
"GemFind" means GemFind and Softech USA, Inc., a California corporation and the parent company of GemFind. 
"User", "You" or "Member" means the individual and/or company applying for or using the Services. 
"Product Data" means both each Member's virtual inventory data including images and associated product specifications and descriptions, and the compilation of all Member's virtual inventory data. 
"Product" means an item being offered for sale using the Product Data. 
"Supplier" means any company that is in the business of selling Products on a wholesale basis to the jewelry trade. 
"Retailer" means any company who is in the business of buying from a Supplier and/or selling retail to consumers. 
"Network" means the GemFind administrative portal at www.gemfind.net, the connectivity between the Supplier and the GemFind administrative portal, the connectivity between the GemFind administrative portal and the Retailer website including all GemFind web interfaces, applications and tools. 
1.2. GemFind may elect, from time to time and in its sole discretion, to amend, supplement or change these Terms at its sole and absolute discretion by posting such changes on www.gemfind.net. Member's use of the Services will be subject to the posted version of these Terms at the time of Member's use. 
1.3. Members who subscribe to some of our other Services, such as for example our website development and hosting services or our online marketing services, will be subject to terms and conditions which are in addition to these Terms. All such additional terms and conditions, including the GemFind Privacy Policy and other rules and policies which may be posted on www.gemfind.net are hereby incorporated by reference into these Terms. If there is a conflict between the terms of such other agreements and these Terms, the terms of the other agreements shall take precedence. 

2. MEMBERSHIP & ELIGIBILITY. 
2.1. Membership Registration. Membership is limited to qualified Suppliers and Retailers in the jewelry industry. GemFind reserves the right to accept or reject Member registrations. Member agrees to provide GemFind all necessary information, including all information requested in Member Registration form, to verify and substantiate such information. Member further agrees to update such information to ensure that it is current, complete, and accurate. Member represents and warrants that the information submitted to GemFind is current, complete, and accurate; and that Member is not a competitor or working for a competitor of GemFind. 
2.2. Membership Approval. Member shall only become an authorized Member of GemFind, and its registration shall only be completed, upon Member's receipt of a confirmatory e-mail from GemFind that such registration is complete, at which time a user name and password will be issued to Member. 
2.3. Username & Password Security. Administrative access to the Network and use of the Services is limited to one user name and password for each Member. Member agrees to keep its user name and password confidential, require its employees to keep its user name and password confidential and to notify GemFind promptly if such user name or password is lost or stolen or if any employee using the user name and password is no longer employed by Member. GemFind reserves the right to cancel and/or replace any password for any reason. Member's use of the Network is limited to object code format only in the form and manner in which access is provided by GemFind. Member agrees that it shall not permit any third party to access the administration areas of the Network. If there is a breach of the confidentiality of a Member's user name or password, or any breach of security through a Member's account, then Member shall notify GemFind immediately in writing or email to support@GemFind.net
2.4 Use of Member Information. GemFind collects information about Members and their use of the Network. Member accepts and agrees that GemFind's collection and use of such information as set forth in GemFind's Privacy Policy and these Terms is not a breach of Members rights of privacy, publicity or other such rights, provided GemFind's use is in accordance with GemFind's Privacy Policy. 
2.5. Members shall not share names or contact information of other Members with third parties, nor shall Members send mass e-mail blasts to other Members. 
3. FEES, PAYMENTS & TERM. 
3.1. Fees. The different pricing options (the "Fees") for Services available to Members will be reflected on the Service Menu and will be displayed on the GemFind website and in the "Manage GF Account" interface within www.gemfind.net. GemFind has the right to modify any portion of its Fees at any time and for any reason, without prior notice. Changes to the Fees shall become effective once posted and shall apply to all new or renewed subscriptions which become effective on the day of such posting. All sales are final. The Services do not provide price protection or refunds in the event of a price reduction or promotional offering. All Fees paid in advance are non-refundable if Member cancels its subscription, or if GemFind terminates Members' access to the Network as a result of Members' non-compliance to these Terms. Unless otherwise stated, all Fees are quoted in US Dollars. 
3.2. Payments. GemFind accepts the following forms of payment: credit cards issued by U.S. banks, automated ACH transfer and checks (only if pre-approved by GemFind). Billing occurs at the time of or shortly after the registration for Services for the 30 days in advance of Services. Member agrees that it will pay for all Services purchased through the Network, and that GemFind may charge Member's credit card account for any Services purchased and for any additional amounts (including any sales taxes and late fees, as applicable) that may be accrued by or in connection with Member's use of the Services. GemFind will charge tax only in states where taxes on digital Services are required. Member is responsible for the timely payment of all fess and for providing and maintaining GemFind with a valid credit card account or ACH for payment of all fees. All fees will be billed to the credit card account designated during the registration process. Member may update or change credit card accounts using the administrative portal within www.gemfind.net
3.3 Term. The term of a Member's contract with GemFind depends on the Services being provided. In all cases, the contract is non-cancellable during the indicated term, except that a Member may terminate its subscription to the Services at the end of the then current term by proving written notice to GemFind as indicated below. The term of this contract shall automatically renew for successive terms as listed below, unless cancelled in writing. Service fees are subject to change upon renewal. The term of GemFind Services is as follows:

  Term # Days' Notice to Cancel
(a) Data Services - 1 year 30 days
(b) Website Hosting Term - 2 years 30 days
(c) Marketing Services - 90 days 90 days


3.4 Termination. Upon termination of this Agreement for any reason, Member shall cease access to and use of all Services. In its sole and absolute discretion, GemFind may issue a warning, revoke, suspend or terminate Member's membership or use of the Service, cancel or suspend its Service, and remove, block (temporarily or permanently), restrict any Product Data, in its absolute and sole discretion, without prior warning and for any reason whatsoever, including if GemFind believes, in its sole and absolute discretion, that a Member has (i) abused and/or violated either the letter or spirit of these Terms, (ii) has breached these Terms & Conditions; (iii) is found to have engaged in fraudulent activity in connection with our Network; or (iv) if GemFind is unable to verify or authenticate any information provided by Member. 
4. INTELLECTUAL PROPERTY. 
4.1. Ownership. The compilation of all information and content used in association with the Network, including all Product Data, text, graphics, logos, button icons, images, audio clips, and software, is exclusive property of GemFind and is protected by U.S. and international copyrights, database rights, trademarks and/or patents. The compilation (meaning the collection, arrangement, and assembly) of all Product Data and other content on the Network is the exclusive property of GemFind and is protected by U.S. and international copyright laws. Member further grants GemFind permission to reproduce and modify the Product Data for purposes of improving the quality and searchability of the Product Data on the Network. All software used on the Network is the property of GemFind or its software suppliers and protected by U.S. and international copyright laws. 
4.2. Supplier Rights. While GemFind owns compilation rights to the Product Data, each Member who provides Product Data or other original content to the Network retains any and all copyrights related thereto with the full rights to remove, restrict and otherwise manage other Members use thereof. At any time during the Term of this Agreement or thereafter, GemFind will remove and discontinue distribution of a Members Product Data, upon 30 days written notice to GemFind. 
4.3. Licenses. 
(a) GemFind hereby grants to Member a non-exclusive, non-transferable, revocable license to use the Network to post, upload, and edit its own Product Data on the Network for so long as Member is and remains a registered Member of GemFind. Product Data must be accepted into the Network to be listed for sale (or as appropriate, for soliciting offers) through use of the GemFind data format which is made available within www.gemfind.net
(b) GemFind hereby grants Member a non-exclusive, non-transferable, revocable license to use Product Data in association with one and only one website URL address, subject to the following conditions:

i. Member may not download the Product Data of another Member without the permission of the Member supplying said Product Data. Member may not access, use, store, or share the Product Data of another Member without the permission of the Member supplying the Product Data. Member may provide other Members access to its Product Data by setting permission to specified Members or by granting general blanket permission to all Members. Members may grant other Members permission to download their Product Data via API by setting specific API permission in the administrative interface.
ii. Member agrees not to use the Product Data in any way beyond the scope of this License and that Member will use sufficient due diligence to safeguard and protect the Product Data from unauthorized infringement.
iii. Member shall not copy, reproduce, re-manufacture or in any way duplicate all or any part of the Product Data, electronically or in any other medium, whether modified or translated into any other format or not, except for use by Member in your business or organization in accordance with these Terms.
iv. Under no circumstance whatsoever shall any Member reveal, re-sell or otherwise re-distribute Product Data to any third party or to use the Product Data within any commercial product or service not sold by GemFind.
v. Member shall not use the Product Data or any information provided by GemFind to establish a competing virtual inventory network, merchandising program or information service or product. Member may not take any action which would jeopardize the operation of Network, attempt to discern the source code of the Network or reproduce all or any portion of the components of the Network.
vi. Member agrees that unauthorized distributing, copying, duplicating, or otherwise reproducing all or any part of the Product Data provided by GemFind, or the failure to protect such Product Data other than use in Members business or organization will actually and materially harm and/or prejudice the interests of GemFind. Member agrees that in the event Member breaches this License, Member will be liable for damages and/or injunctive relief as may be determined by a court of competent jurisdiction.


(c) Marketing Program Materials. All Marketing Materials via print, online, social network or web related and information contains copyrighted material, trademarks, and other proprietary information. You may not modify, publish, transmit, participate in the transfer or sale of, create derivative works of, in any way exploit, in whole or in part, any Proprietary or other Material. All images, text, contents, products and scripts are licensed and never sold, unless otherwise stated. Reproduction is prohibited. You may not use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, otherwise reverse engineer, or transfer the licensed program or product, or any subset of the licensed program or product, except as prodded for in this agreement or expressly in writing. Any such unauthorized use shall result in immediate and automatic termination of this license and may result in criminal and/or civil prosecution. 
4.4. No Guarantees of the Accuracy of Product Data. Member understands and acknowledges that it is solely responsible for the quality, legality, accuracy and veracity of all Product Data that it posts, uploads or transmits on to the Network. Member further acknowledges and understands that GemFind only acts as a passive conduit for the online distribution and publication of Product Data and other information, and that GemFind does not therefore control the quality, legality, accuracy or veracity of any Product Data that is transmitted using the Network. GemFind cannot and does not ensure or guarantee that a Supplier shall sell, that a Retailer shall purchase or that the participants shall complete a transaction. By its very nature, other people's Product Data and Products may be offensive, harmful or inaccurate, and in some cases Product Data will be mislabeled or deceptively labeled. GemFind expects and Member agrees that it will use caution and common sense when buying, selling or transacting business based on Product Data supplied on the Network. 
4.5. Data Authenticity. Member warrants that it owns all Product Data that it posts on the Network and that it has obtained any and all licenses to, or releases of intellectual property rights in or to the Product Data before posting to the Network. Member warrants that its use of the Network and the Product Data that it posts on the Network, shall not be false, inaccurate or misleading, fraudulent or involve the sale of counterfeit or stolen items, obscene, contain viruses or other contaminating or destructive features, violate the personal, proprietary or intellectual property rights of any third party, or violate any law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, antidiscrimination or false advertising). 
4.6. Product Data Limits. At its sole and absolute discretion, GemFind may establish general practices and limits in regard to the acceptability of Product Data, including, but not limited to, limits on the number of items to be uploaded to the Network, the number of items available to be transmitted through the Network, and the number of items to be downloaded from the Network. GemFind shall have no liability or responsibility for the deletion, sharing restrictions, withdrawal or failure to store any Product Data in connection with any Service. 
4.7. Product Pricing & Markups. In order to prevent situations where there is a ‘zero' markup, GemFind may establish minimum retail price mark ups for the Product Data. In general, due to the large volume of Product Data maintained on the Network, prices and availability of items offered for sale on the Network should only be used as general guidelines for determining the price, availability, and delivery times of Products. Direct communications with the Supplier is advised to determine actual price, availability and delivery times. 
4.8. Agents. Member may appoint agents or sub-contractors to carry out any of the activities related to the integration of Product Data and or Services into Member's website. However, Member acknowledges that it shall be responsible to GemFind for the acts and omissions of such agents and sub-contractors for any violation of these Terms. Member agrees to notify GemFind should it discover that any of its agents and/or subcontractors is taking any action which is inconsistent with these Terms. 
4.9. Upon termination of this License, Member may no longer access the Product Data and shall promptly, at GemFind's option, delete any Data and all copies thereof from Members storage facilities and/or promptly return to GemFind all originals and copies thereof, along with all documentation and other confidential information provided pursuant to this License. At GemFind's request, Member shall provide to GemFind written confirmation from a director or its internal legal counsel, of compliance with this clause. 
4.10. No Limits. Nothing in this Agreement shall limit GemFind's right to perpetual, royalty-free license to use in its business any ideas, concepts, know-how, methods or techniques which GemFind conceives or develops at the request of a Member for improvement of the Network or Services. Nothing in this Agreement shall preclude GemFind from developing (for itself or for others) materials which are competitive with those produced for a Member, irrespective of their similarity to Services which may be delivered to Member pursuant to this Agreement. 
4.11. Injunctive Relief. Any breach of any of the foregoing shall result in irreparable harm to GemFind and, accordingly, Member agrees that in such event GemFind shall be entitled to injunctive relief without requirement of posting a bond and without the necessity of showing actual money damages. 
5. CONFIDENTIAL INFORMATION. 
5.1 Confidential Information. Member acknowledges and agrees that the Service, the software used to provide the Services, and the information and content provided by the Service contains proprietary and confidential information. Member agrees that any such information which could reasonably be considered confidential shall be considered "Confidential Information". Confidential Information specifically includes, but is not limited to, the GemFind database structures, pricing methods, administrative logic, functionality, and the look and feel of any administrative and front-end user interfaces. Member will, and will cause its employees and representatives to, keep all Confidential Information in the strictest confidence. Member shall not use of any Confidential Information available in the Network to establish a competing service or in a competitive network. Member agrees not to copy, disclose, or otherwise use in any manner information provided by or through the Service, except as provided in these Terms. 
5.2 Exceptions. Notwithstanding the foregoing, the aforesaid confidentiality obligations shall not apply to any Confidential Information which: (a) is known by Member prior to receipt hereunder; (b) is or becomes publicly known through no wrongful act or omission of Member; (c) is rightfully disclosed to Member by a third party not bound by a confidentiality restriction; (d) is approved for release in advance by written authorization from GemFind; or (e) is independently developed by Member without use or reliance on the Confidential Information. In addition, Member may disclose Confidential Information of GemFind as may be required to be disclosed by GemFind in order to comply with applicable laws, governmental regulations, or court orders, provided that Member provides prior written notice of such disclosure to GemFind and allows GemFind to take reasonable and lawful actions to avoid and/or minimize the extent of such disclosure, such as attempting to obtain a protective order. 
5.3 Injunctive Relief. Member agrees that any disclosure of Confidential Information under this section by it or any of its officers, directors, employees or subcontractors may cause immediate and irreparable injury to GemFind and that, in the event of such breach, GemFind will be entitled to immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages. 
6. INDEMNIFICATION. 
6.1 Indemnification by GemFind. Except to the extent covered by Member's indemnification of GemFind under Section 6.2, GemFind agrees to indemnify, defend and hold Member harmless from and against certain third party claims, and all liabilities, assessments, losses, costs or damages resulting therefrom which are awarded or paid in settlement to such third party, as well as the expenses of any legal proceeding related thereto, to the extent such third party claims properly allege and it is actually shown that the use by Member of the Network or any part thereof, infringes or violates any patent or copyright of any third party. Notwithstanding the above, GemFind shall not be required to indemnify Member to the extent that such third party claim (i) arises out of Member's misuse of the Network, (ii) arises out of content posted onto the Network, (iii) relates to Products ordered or fulfilled using the Network, or (iv) relates to taxes or other charges assessed in connection with any Products ordered or fulfilled using the Network. 
6.2 Indemnification by Member. At its own expense, Member agrees to indemnify, defend and hold GemFind and its subsidiaries, affiliates, officers, employees, agents, co-branders, associates, suppliers, or other partners harmless from and against any third party claims, action or allegations, and all liabilities, assessments, losses, costs or damages resulting therefrom, which are awarded or paid in settlement to such third party, as well as the expenses of any legal proceeding related thereto, arising from or related to a transaction or dispute between Members or between a Member and a third party, (b) unauthorized access to the Network through Member's account, (c) facts or allegations that would constitute a breach of any of Member's representations, warranties, or covenants under this Agreement, or (d) a request for GemFind to remove or disable access to any Product Data in the Network. 
6.3 Exceptions. The indemnification provided for herein shall be subject to the following terms and conditions:

(a) the indemnified party must notify the indemnifying party promptly in writing of any notice of the claim subject to indemnification;

 

(b) the indemnifying party shall have sole control over such defense and all negotiations for the settlement and compromise of such claim;

 

(c) for so long as the indemnifying party is diligently conducting such defense with competent counsel, it shall not be liable for any attorney's fees of the indemnified party; and

 

(d) the indemnified party shall cooperate with the indemnifying party in a defense and settlement of any claim, at the indemnifying parties expense, provided that the indemnifying party shall not be liable hereunder for any settlement or compromise negotiated by the indemnified party unless the indemnifying party agrees in writing to be so bound, which agreement shall not be unreasonably withheld.


If the indemnified party provides notice of a claim in accordance with (a) and is not notified within ten (10) business days thereafter that the indemnifying party intends to defend the claim, the indemnified party shall be entitled to defend such claim, and settle or compromise such claim, subject to the indemnification provided for herein. 
7. LIMITATION OF LIABILITY. 
7.1. LIABILITY LIMITS. NOTWITHSTANDING ANYTHING ELSE CONTAINED HEREIN, IN NO EVENT SHALL GEMFIND BE LIABLE TO A MEMBER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OF ANY KIND OR NATURE WHATSOEVER, OR FOR ANY LOSS OF OR RELIANCE ON PRODUCT DATA, LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF REVENUES OR BUSINESS INTERRUPTIONS, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SERVICES, THE NETWORK AND/OR THIS AGREEMENT, WHETHER THE CLAIM FOR SUCH RECOVERY IS BASED UPON A THEORY OF CONTRACT, NEGLIGENCE OR TORT AND EVEN IF GEMFIND HAS KNOWLEDGE OF THE POSSIBILITY OF THE POTENTIAL LOSS OR DAMAGE. IN NO EVENT SHALL ANY DAMAGES PAYABLE BY GEMFIND BE GREATER THAN OR EXCEED THE AGGREGATE SERVICE FEES ACTUALLY PAID BY MEMBER TO GEMFIND IN CONNECTION WITH THE SERVICES GIVING RISE TO THE LIABILITY AND PURSUANT TO THIS AGREEMENT. MEMBER SHALL HAVE 90 DAYS AFTER THE EXPIRATION OF THE TERM TO ASSERT ANY CLAIMS AGAINST GEMFIND; AFTER THE 90 DAY PERIOD MEMBER SHALL BE PROHIBITED FROM ASSERTING ANY SUCH CLAIMS. 
7.2. Sole Remedy. In the event of a failure of the Network to perform substantially in accordance with GemFind's then current specifications therefor, GemFind's sole obligation is to use its reasonable commercial efforts to remedy such failure. If GemFind is unable to remedy the failure within 7 days, Member's sole and exclusive remedy is to obtain a prorated refund of Maintenance, Hosting and Service Fees allocated or otherwise relating to the monthly period that the Network did not perform substantially in accordance with GemFind's specifications therefor. 
8. WARRANTIES, DISCLAIMERS AND RELEASE 
8.1. NO WARRANTY AND DISCLAIMERS. EXCEPT AS STATED HEREIN, GEMFIND MAKES NO WARRANTIES, WHETHER EXPRESS OR IMPLIED, RELATING TO THE NETWORK AND THE SERVICES. ACCESS AND USE OF THE SERVICES AND THE NETWORK IS PROVIDED ON AN "AS IS", "AS AVAILABLE" BASIS. GEMFIND DOES NOT WARRANT THAT THE NETWORK AND SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED. IN ADDITION, GEMFIND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. GEMFIND WILL USE REASONABLE COMMERCIAL EFFORTS TO KEEP THE NETWORK AND THE SERVICES AVAILABLE FOR ACCESS ON A 24 HOUR A DAY, SEVEN DAY A WEEK BASIS, SUBJECT TO SCHEDULED DOWNTIME FOR MAINTENANCE PURPOSES, UNSCHEDULED MAINTENANCE AND NETWORKS OUTAGES. THERE ARE NO ASSURANCES, HOWEVER, THAT ACCESS WILL BE AVAILABLE AT ALL TIMES AND UNINTERRUPTED. GEMFIND DOES NOT WARRANT THAT THE QUALITY OF THE ONLINE MARKETING, WEBSITES OR PRODUCT DATA OR OTHER INFORMATION OR SERVICES OBTAINED BY MEMBER, WILL BE EFFECTIVE, ACCURATE, RELIABLE OR MEET MEMEBER'S EXPECTATIONS. FURTHER, GEMFIND DOES NOT WARRANT OR GUARANTEE THAT THE OPERATION OF THE NETWORK OR SERVICES WILL BE ERROR-FREE, CONTINUOUS, UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTABLE, OR THAT THE NETWORK OR THE SERVERS THAT MAKE IT AVAILABLE ARE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. FURTHER, GEMFIND DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE ONLINE MARKETING, WEB SITES, PRODUCTS, SERVICES OR WRITTEN MATERIALS IN THE TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS OR OTHERWISE. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE WEB SITES, PRODUCTS AND SERVICES ARE ASSUMED BY MEMBER. IF THE WEB SITES, PRODUCTS, SERVICES OR WRITTEN MATERIALS ARE DEFECTIVE, MEMBER ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY GEMFIND SHALL CREATE A WARRANTY AND YOU MAY NOT RELY ON SUCH INFORMATION. CERTAIN SOFTWARE USED BY MEMBER MAY NOT BE CAPABLE OF SUPPORTING THE SERVICES. THE PERFORMANCE OF THE SERVICES AND THE NETWORK VARIES WITH MEMBER'S SYSTEMS WITH WHICH IT IS USED. MEMBER IS SOLELY RESPONSIBLE FOR OBTAINING HARDWARE AND SOFTWARE THAT SUPPORT THE NETWORK. MEMBER AGREES AND ACKNOWLEDGES THAT THE ALLOCATION OF RISK AND THE LIMITATIONS OF LIABILITIES CONTAINED IN THIS AGREEMENT ARE MATERIAL CONSIDERATIONS FOR GEMFIND ENTERING INTO THIS AGREEMENT. To the extent permissible, any implied warranties that cannot be excluded by law are limited to ninety (90) days. 
8.2. LIMITED RELEASE. MEMBER AGREES THAT GEMFIND SHALL NOT BE LIABLE AND HEREBY WAIVES, RELEASES AND DISCHARGES GEMFIND AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, CO-BRANDERS, ASSOCIATES, SUPPLIERS, OR OTHER PARTNERS FROM ANY AND ALL CLAIMS, DEMANDS, OBLIGATIONS, LIABILITY AND DAMAGES (ACTUAL OR CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, THAT MEMBER MAY HAVE REGARDING, ARISING OUT OF OR IN CONNECTION WITH THE USE OF ANY PRODUCT AND SERVICE SOLD AND BEING OFFERED FOR SALE BY GEMFIND. 
8.3 General Online Marketing & Educational Webinar Program Disclaimer. GemFind's use of all sales, marketing and promotional materials on www.gemfind.net and its related websites and social networks, including income statements, testimonials, and examples may illustrate exceptional results, and are not intended to represent or guarantee that Member will achieve the same or similar results. An individual Member's success depends on his or her desire, dedication, marketing background, market place, product, service, effort and motivation to work and follow programs and advice. There is no guarantee Member will duplicate the results of another Member. Member recognizes that any business endeavor has inherent risk for loss of capital. 
9. MISCELLANEOUS. 
9.1 Publicity. GemFind shall be permitted to disclose for reasonable business purposes that Member is a customer of GemFind and/or that Member utilizes the Services of GemFind. 
9.2 Non-Assignment / Binding Agreement. Member shall not, without the written consent of GemFind, assign or transfer this Agreement or any of its rights or obligations hereunder, except that no such consent is needed for any assignment to a wholly-owned or majority-owned subsidiary of Member or a successor in interest to Member whether by merger, consolidation, sale of all or substantially all assets or otherwise. 
9.3 Notices. Any notice to be given hereunder shall be in writing and delivered personally or sent by facsimile transmission (provided a copy is contemporaneously sent by regular mail), registered or certified mail, postage prepaid, or overnight courier service, to the home office of the other party, or such other address as either party may designate in writing in accordance with this Section. Notices shall be deemed received at the earlier of actual receipt, three (3) business days following mailing, one (1) business day after facsimile transmission (provided automatic confirmation of transmission is received by the sender) or one (1) business day after deposit with an overnight courier service. 
9.4 Force Majeure. Neither party will incur any liability to the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence of the party. Such events, occurrences or causes will include, without limitation, outages of the internet or connections thereto, communication outages, acts of God, strikes, lockouts, failure of supply from third parties, riots, acts of war, fire, flood, and explosions, but the inability to meet financial obligations is expressly excluded. 
9.5 Waivers and Remedies. Any waiver of the provisions of this Agreement or of a party's rights or remedies under this Agreement must be in writing to be effective. Any waiver in a particular instance shall not constitute a waiver of the same or different rights or breaches in any other instance. Failure, neglect or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time will not be construed and will not be deemed to be a waiver of such party's rights under this Agreement and will not prejudice such party's right to take subsequent action. Except as otherwise provided herein relating to exclusive remedies in certain situations, no exercise or enforcement by either party of any right or remedy under this Agreement will preclude the enforcement by such party of any other right or remedy under this Agreement or that such party is entitled by law to enforce. 
9.6 Severability. If any term, condition or provision in this Agreement is found by a court of competent jurisdiction to be invalid, unlawful or unenforceable to any extent, then it is the intent of the parties that such court apply a rule of reasonableness and modify the provision in question so it will remain in effect to the greatest extent permitted by law. In the event a court finds such procedure to be inappropriate, then such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law. 
9.7 Export Prohibition. Member may not export or re-export any software or other technology provided pursuant to this Agreement without the prior written consent of GemFind and without the appropriate United States and foreign government licenses. 
9.8 No Third Party Beneficiaries. This Agreement is not intended to, and shall not, create any rights in or confer any benefits upon any other person or third party other than the parties hereto. 
9.9 Relationship of the Parties. GemFind shall be considered an independent contractor and shall not be considered an employee, agent, party or joint venturer of or with Member (regardless of how the parties are referred to in writing or orally). 
9.10 Attorney's Fees. If any legal action is brought to construe or enforce any provision of this Agreement, the prevailing party shall be entitled to receive its reasonable attorneys' fees and court costs in addition to any other relief it may receive. 
9.11 Non-Competition. GemFind shall be free during and after the term of this Agreement to provide services, including, without limitation, to develop websites, for any other person or entity. 
9.12 Staffing. GemFind shall have the exclusive authority to make staffing decisions with respect to use of personnel for the setup, development and/or implementation and deployment of the Services, and may, in its sole discretion, utilize the services of off-site third-parties. This authority includes the right to reassign personnel. 
9.13. Choice of Law, Forum Selection & Language. This agreement is being written in the English language, which is to be the official language of the contract's text and interpretation. This Agreement shall be governed in all respects by the laws of the State of California as such laws are applied to agreements entered into and performed entirely within California between California residents. Both parties submit to jurisdiction in California and further agree that any controversy or claim arising out of or relating to this Agreement or the Services shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. The arbitration shall be conducted in Los Angeles, CA and judgment on the arbitration award may be entered into any court having competent jurisdiction thereof. Either party may seek any interim or preliminary relief from a court of competent jurisdiction in Los Angeles, CA necessary to protect its rights or property pending the completion of arbitration. 
9.14 Electronic Contracting. Member's use of the Services includes Member's ability to enter into agreements and/or to make transactions electronically. MEMBER ACKNOWLEDGES THAT ITS ELECTRONIC SUBMISSIONS CONSTITUTE ITS AGREEMENT AND INTENT TO BE BOUND BY THESE TERMS & CONDITIONS. MEMBER'S AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL SERVICES TO WHICH MEMBER SUBSCRIBES, INCLUDING BEING BOUND BY ALL NOTICES, AMENDMENTS, NOTICES OF CANCELLATION, POLICIES, CONTRACTS, AND APPLICATIONS. Member represents and warrants that the person electronically executing on its behalf has been duly authorized to electronically execute this Agreement. 
Please contact info@gemfind.com if you have questions or comments.

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