THESE TERMS AND CONDITIONS (THE "TERMS") ARE A LEGAL CONTRACT BETWEEN YOU AND GIA. THE TERMS EXPLAIN HOW YOU ARE PERMITTED TO USE THE WEBSITE LOCATED AT THE URLS WWW.GIA.EDUSTORE.GIA.EDU
, AS WELL AS ALL ASSOCIATED SITES LINKED TO WWW.GIA.EDUSTORE.GIA.EDU
BY GIA, ITS SUBSIDIARIES OR AFFILIATED COMPANIES (COLLECTIVELY, THE "SITE"). UNLESS OTHERWISE SPECIFIED, ALL REFERENCES TO “SITE” INCLUDE THE CONTENT AND SERVICES AVAILABLE THROUGH THE SITE (THE "SERVICES") AND ANY SOFTWARE THAT GIA PROVIDES TO YOU THAT ALLOWS YOU TO ACCESS THE SITE FROM A MOBILE DEVICE (A "MOBILE APPLICATION"). BY USING THIS SITE, YOU ARE AGREEING TO ALL THE TERMS; IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THIS SITE, ANY SERVICES AVAILABLE THROUGH THIS SITE OR ANY INFORMATION CONTAINED ON THIS SITE.
OUR SERVICES ARE VERY DIVERSE, SO SOMETIMES ADDITIONAL TERMS, POLICIES AND GUIDELINES MAY APPLY. SUCH ADDITIONAL TERMS, POLICIES AND GUIDELINES WILL BE DISPLAYED TO YOU IN CONNECTION WITH THE RELEVANT SERVICES. AS USED HEREIN, “TERMS” ALSO INCLUDES SUCH ADDITIONAL TERMS, POLICIES AND GUIDELINES. IF THERE IS A CONFLICT BETWEEN THESE TERMS AND CONDITIONS AND ANY SUCH ADDITIONAL TERMS, POLICIES OR GUIDELINES, THE ADDITIONAL TERMS, POLICIES OR GUIDELINES WILL CONTROL FOR THAT CONFLICT.
NOTE: THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING A CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH GIA. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.
GIA may make changes to the content and Services offered on the Site at any time. GIA can change, update, or add or remove the provisions of these Terms, at any time by posting the updated Terms. By using this Site after GIA has updated the Terms, you are agreeing to all the updated Terms; if you do not agree with any of the updated Terms, you must stop using the Site.
By using this Site or the Services, you represent, acknowledge and agree that you are at least 18 years of age, or if you are under 18 years of age but are at least 13 years old (a “Minor”), that you are using the Site with the consent of your parent or legal guardian and that you have received your parent’s or legal guardian’s permission to use the Site and agree to its Terms. If you are a parent or legal guardian of a Minor, you hereby agree to bind the Minor to these Terms and to fully indemnify and hold harmless GIA if the Minor breaches any of these Terms. If you are not at least 13 years old, you may not use the Site at any time or in any manner or submit any information to GIA or the Site.
If you are accessing the Site or the Services on behalf of an entity, you represent and warrant that you have authority to bind that entity to the Terms and by accepting the Terms, you are doing so on behalf of that entity (and all references to “you” in the Terms refer to that entity).
GIA provides content through the Site and through the Services that is the copyrighted and/or trademarked work of GIA or GIA’s third-party licensers and suppliers or other users of the Site (collectively, the “Materials”). Materials may include logos, graphics, video, images, software and other content.
Subject to these Terms, and your compliance with these Terms, GIA hereby grants you a limited, personal, non-exclusive and non-transferable licence to use and to display the Materials and to use this Site solely for personal or internal business purposes. Except for the foregoing licence, you have no other rights in the Site or any Materials and you may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the Site or Materials in any manner.
If you breach any of these Terms, the above licence will terminate automatically and you must immediately destroy any downloaded or printed Materials.
GIA makes available Mobile Applications to access portions of the Site via a mobile device. To use the Mobile Application you must have a mobile device that is compatible with the mobile service. GIA does not warrant that the Mobile Application will be compatible with your mobile device. GIA hereby grants to you a non-exclusive, non-transferable, revocable licence to use an object code copy of the Mobile Application for one registered account on one mobile device owned or leased solely by you, for personal or internal business purposes. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Application, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Application to any third-party or use the Mobile Application to provide time sharing or similar services for any third-party; (iii) make any copies of the Mobile Application; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Application, features that prevent or restrict use or copying of any content accessible through the Mobile Application, or features that enforce limitations on use of the Mobile Application; or (v) delete the copyright and other proprietary rights notices on the Mobile Application. You acknowledge that GIA may from time to time issue upgraded versions of the Mobile Application, and may automatically electronically upgrade the version of the Mobile Application that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that these Terms will apply to all such upgrades. The foregoing licence grant is not a sale of the Mobile Application or any copy thereof, and GIA and its third-party licensers or suppliers retain all right, title, and interest in and to the Mobile Application (and any copy of the Mobile Application). Standard carrier data charges may apply to your use of the Mobile Application.
The following additional terms and conditions apply with respect to any Mobile Application that GIA provides to you designed for use on an Apple iOS-powered mobile device (an “iOS App”):
- You acknowledge that these Terms are between you and GIA only, and not with Apple, Inc. (“Apple”).
- Your use of GIA’s iOS App must comply with Apple’s then-current App Store Terms of Service.
- GIA, and not Apple, is solely responsible for our iOS App and the Services and Materials available thereon. You acknowledge that Apple has no obligation to provide maintenance and support services with respect to our iOS App. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to our iOS App.
- You agree that GIA, and not Apple, is responsible for addressing any claims by you or any third-party relating to our iOS App or your possession and/or use of our iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation, and all such claims are governed solely by these Terms and any law applicable to us as provider of the iOS App.
- You agree that GIA, and not Apple, shall be responsible, to the extent required by these Terms, for the investigation, defence, settlement and discharge of any third-party intellectual property infringement claim related to our iOS App or your possession and use of our iOS App.
- You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.
- You agree to comply with all applicable third-party terms of agreement when using our iOS App (e.g., you must not be in violation of your wireless data service terms of agreement when using the iOS App).
- The parties agree that Apple and Apple’s subsidiaries are third-party beneficiaries to these Terms as they relate to your licence of GIA’s iOS App. Upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as they relate to your licence of the iOS App as a third-party beneficiary thereof.
The following additional terms and conditions apply with respect to any Mobile Application that GIA provides to you designed for use on an Android-powered mobile device (an “Android App”):
- You acknowledge that these Terms are between you and GIA only, and not with Google, Inc. (“Google”).
- Your use of GIA’s Android App must comply with Google’s then-current Android Market Terms of Service.
- Google is only the provider of the Android Market where you obtained the Android App. GIA, and not Google, is solely responsible for GIA’s Android App and the Services and Materials available thereon. Google has no obligation or liability to you with respect to GIA’s Android App or these Terms.
- You acknowledge and agree that Google is a third-party beneficiary to the Terms as they relate to GIA’s Android App.
Using the Site and the Services on the Site
You can simply view the Site and not use any Services on the Site. You need not register with GIA to simply visit and view the Site.
However, in order to access certain password-restricted areas of the Site and to use certain Services and Materials offered on and through the Site, you must register with GIA for an account and receive a password.
Password Restricted Areas of this Site
If you desire to register for an account with GIA, you must submit certain information (such as identification or contact details) through an account registration page on the Site. You may also have the ability to provide additional optional information. Once you have submitted your account registration information, the GIA administrator shall have the right to approve or reject the requested registration, at the GIA administrator’s sole discretion. If your account is approved by the GIA administrator, you will be sent an e-mail that contains a password that will allow you to log on to the Site using that password (the “Password”) for the first time you log into your account on the Site to complete the account registration process.
You are responsible for maintaining the confidentiality of your Password, and you are responsible for all activities that occur using your Password. You agree not to share your Password, let others access or use your Password or do anything else that might jeopardise the security of your Password. You agree to notify GIA if your Password for this Site is lost or stolen, if you are aware of any unauthorised use of your Password for this Site, or if you know of any other breach of security in relation to this Site.
All the information that you provide when registering for an account or otherwise through the Site must be accurate, complete and up to date. You may change, correct or remove any information from your account by either logging into your account directly and making the desired changes or contacting GIA using the contact information at the end of these Terms and requesting that we make the change.
By using the Site and/or the Services provided on or through the Site, you consent to receiving electronic communications from GIA. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Site and/or Services provided on or through the Site. These electronic communications are part of your relationship with GIA. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.
, which explains how we use the information that you submit to GIA.
Links to Third-Party Sites
You are responsible for the information, opinions, messages, comments, photos, videos, graphics, sounds and other content or material that you submit, upload, post or otherwise make available on or through the Site (each a “Submission”) and through the Services available in connection with this Site. You may not upload, post or otherwise make available on this Site any material protected by copyright, trademark, or any other proprietary right without the express permission of the owner of such copyright, trademark or other proprietary right owned by a third-party, and the burden of determining whether any material is protected by any such right is on you. You shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights, violations of contract, privacy or publicity rights, or any other harm resulting from any Submission that you make. You have full responsibility for each Submission you make, including its legality, reliability and appropriateness.
You agree to pay for all royalties, fees, damages and any other monies owing to any person by reason of any Submissions posted by you to or through this Site.
When you provide Submissions you agree that those Submissions shall not be in violation of the “Unauthorised Activities” paragraph below. Those prohibitions do not require GIA to monitor, police or remove any Submissions or other information submitted by you or any other user.
When using this Site and/or the Services, you agree not to:
- Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
- Use racially, ethnically or otherwise offensive language.
- Discuss or incite illegal activity.
- Use explicit/obscene language or solicit/post sexually explicit images (actual or simulated).
- Post anything that exploits children or minors or that depicts cruelty to animals.
- Post any copyrighted or trademarked materials without the express permission of the owner.
- Disseminate any unsolicited or unauthorised advertising, promotional materials, 'junk mail', 'spam', 'chain letters', 'pyramid schemes', or any other such form of solicitation.
- Use any robot, spider, scraper or other automated means to access the Site.
- Take any action that imposes an unreasonable or disproportionately large load on our infrastructure.
- Alter the opinions or comments posted by others on this Site.
- Post anything contrary to our public image, goodwill or reputation.
This list of prohibitions provides examples and is not complete or exclusive. GIA reserves the right to (a) terminate access to your account, your ability to post to this Site (or use the Services) and (b) refuse, delete or remove any Submissions; with or without cause and with or without notice, for any reason or no reason, or for any action that GIA determines is inappropriate or disruptive to this Site or to any other user of this Site and/or Services. GIA may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at GIA’s discretion, GIA will cooperate with law enforcement agencies in any investigation of alleged illegal activity on this Site or on the Internet.
Unauthorised use of any Materials or Third-Party Content contained on this Site may violate certain laws and regulations.
You agree to indemnify and hold GIA and its officers, directors, employees, affiliates, agents, licensers and business partners harmless from and against any and all costs, damages, liabilities and expenses (including attorneys’ fees and costs of defence) that GIA or any other indemnified party suffers in relation to, arising from, or for the purpose of avoiding, any claim or demand from a third-party that your use of this Site or the use of this Site by any person using your user name and/or password (including without limitation, your participation in the posting areas or your Submissions) that violates any applicable law or regulation, or the copyrights, trademark rights or other rights of any third party.
GIA, Gemological Institute of America, the GIA seal, GIA Diamond Dossier, Facetware, Gems & Gemology, DiamondDock, Graduate Gemologist, DiamondCheck Logo, GemKids, GemKids Logo, AJP, and Focus are trademarks of GIA. For more information, please see Copyrights and Trademarks.
Unless otherwise specified in these Terms, all information and screens appearing on this Site, including documents, services, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of GIA, Copyright © 2002-2017 Gemological Institute of America, Inc. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or licence.
The Mobile Application software that is provided to you through the Site and Services and related documentation are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, if you are a government entity, the Commercial Computer Software and Commercial Computer Software Documentation are licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights are reserved under the copyright laws of the United States.
Disclaimer of Warranties
Your use of this Site and/or the Services is at your own risk. The Materials have not been verified or authenticated in whole or in part by GIA, and they may include inaccuracies or typographical or other errors. GIA does not warrant the accuracy or timeliness of the Materials contained on this Site. GIA has no liability for any errors or omissions in the Materials, whether provided by GIA, our licensers or suppliers, or other users.
GIA, FOR ITSELF AND ITS LICENSERS, MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES OR GUARANTEES IN CONNECTION WITH THIS SITE, THE SERVICES, OR ANY MATERIALS RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS SITE, INCLUDING WITHOUT LIMITATION THE MATERIALS. UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THIS SITE, THE SERVICES AND MATERIALS, AND ANY INFORMATION OR MATERIAL CONTAINED IN OR PRESENTED ON THIS SITE IS PROVIDED TO YOU ON AN “AS IS”, “AS AVAILABLE” AND “WHERE IS” BASIS, WITH NO WARRANTY OR IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. GIA DOES NOT PROVIDE ANY WARRANTIES AGAINST VIRUSES, SPYWARE OR MALWARE THAT MAY BE INSTALLED ON YOUR COMPUTER.
The information provided in or made available through the Site (including, but not limited to, message boards, text files, chat rooms or social media) is not intended to replace the services of a trained jeweller or gemmologist regarding analysis or appraisal of any particular gem or jewellery item or to be a substitute for their advice regarding gem value or other commercial evaluation. You are advised to consult with a trained jeweller or gemmologist prior to purchasing any particular gem or piece of jewellery.
Limitation of Liability
YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE SITE, THE SERVICES OR ANY OTHER GRIEVANCE SHALL BE YOUR TERMINATION AND DISCONTINUATION OF ACCESS TO, OR USE OF THE SITE.
GIA SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR DISPLAYING, COPYING OR DOWNLOADING ANY MATERIALS TO OR FROM THIS SITE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL GIA BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWSOEVER ARISING, EVEN IF GIA KNOWS THERE IS A POSSIBILITY OF SUCH DAMAGE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL GIA’S LIABILITY TO YOU EXCEED FIFTY DOLLARS (USD $50), EVEN IN THE EVENT OF A FAILURE OF THE ESSENTIAL PURPOSE OR ANY LIMITED REMEDY UNDER THIS AGREEMENT.
Local Laws; Export Control
GIA controls and operates this Site from its headquarters in the United States of America and the Materials may not be appropriate or available for use in other locations. If you use this Site outside the United States of America, you are responsible for following applicable local laws.
If you send or transmit any communications, comments, questions, suggestions or related materials to GIA, whether by letter, email, telephone, or otherwise (collectively, “Feedback”), suggesting or recommending changes to the Site, any Services offered through the Site or Materials, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non-proprietary. You hereby assign all right, title and interest in, and GIA is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing and selling, directly or indirectly, products and services using such Feedback. You understand and agree that GIA is not obligated to use, display, reproduce or distribute any such ideas, know-how, concepts or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction or distribution.
Dispute Resolution and Arbitration; Class Action Waiver
Please read this carefully. It affects your rights
Most user concerns can be resolved quickly and to a user’s satisfaction by contacting us
. This Dispute Resolution and Arbitration; Class Action Waiver provision (“Provision”) facilitates the prompt and efficient resolution of any disputes that may arise between you and GIA. Arbitration is a form of private dispute resolution in which persons with a dispute waive their rights to file a lawsuit, to proceed in court and to a jury trial, and instead submit their disputes to a neutral third person (or arbitrator) for a binding decision. You have the right to opt-out of this Provision (as explained below), which means you would retain your right to litigate your disputes in a court, either before a judge or jury.
Please read this Provision carefully. It provides that all Disputes between you and GIA shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise provided, entering into this agreement constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including legal costs).
For the purpose of this Provision, “GIA” means GIA and its parents, subsidiary and affiliate companies, and each of their respective officers, directors, employees and agents. The term “Dispute” means any dispute, claim or controversy between you and GIA regarding any aspect of your relationship with GIA, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced, and shall include any claims against other parties relating to services or products provided or billed to you (such as GIA’s licensers, suppliers, dealers or third-party vendors) whenever you also assert claims against us in the same proceeding.
WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
Pre-Arbitration Claim Resolution
For all Disputes, whether pursued in court or arbitration, you must first give GIA an opportunity to resolve the Dispute. You must commence this process by sending written notification to the Legal Department, Gemological Institute of America, Inc., 5355 Armada Drive, Carlsbad, California 92008, United States of America. This written notification must include (1) your name, (2) your address, (3) a written description of your Claim, and (4) a description of the specific relief you seek. If GIA does not resolve the Dispute within 45 days after it receives your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt Out
Notwithstanding the above, you or GIA may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt out of this Provision by sending written notification to the Legal Department, Gemological Institute of America, Inc., 5355 Armada Drive, Carlsbad, California 92008, United States of America. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with GIA through arbitration. Your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with GIA. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.
If this Provision applies and the Dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or GIA may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1 800 778 7879 (within the U.S.). For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1 800 352 5267 (within the U.S.). This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration.
Because the Site and these Terms concern interstate commerce, the United States Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for the purposes of enforcement.
Location of Arbitration – You or GIA may initiate arbitration in either San Diego, California or the US federal judicial district in which you reside. In the event that you select the latter, GIA may transfer the arbitration to San Diego, California so long as GIA agrees to pay any additional fees or costs which the arbitrator determines you incur as a result of the transfer.
Payment of Arbitration Fees and Costs – GIA will pay all arbitration filing fees and arbitrator’s costs and expenses upon your written request given prior to the commencement of the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with GIA as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
Class Action Waiver
Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and GIA specifically agree to do so following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you.
Neither you, nor any other user of the Site can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
You understand and agree that by entering into this Agreement you and GIA are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and GIA might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision, and the remainder of this Provision will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the Dispute will be decided by a court.
This Provision shall survive the termination of your account with GIA and your discontinued use of the Site. Notwithstanding any provision in this Agreement to the contrary, the parties agree that if GIA makes any change to this Provision (other than a change to the notice address), you may reject any such change and require GIA to adhere to the language in this Provision if a dispute between the parties arises.
GIA prefers to advise you if we feel you are not complying with these Terms and to recommend any necessary corrective action. However, certain violations of these Terms, as determined by GIA, may result in immediate termination of your access to this Site without prior notice to you. The Federal Arbitration Act, California state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. Foreign laws do not apply. The United Nations on Contracts for the International Sale of Goods and any laws based on the Uniform Computer Information Transactions Act (UCITA) shall not apply to this agreement. Except for disputes subject to arbitration as described above, any disputes relating to these Terms or this Site will be heard in the courts located in San Diego County in the State of California. If any of these Terms is found to be inconsistent with applicable law, then such term shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. GIA’s failure to enforce any of these Terms is not a waiver of such term. These Terms are the entire agreement between you and GIA regarding the use of the Site and supersede all prior or contemporaneous negotiations, discussions or agreements between you and GIA about this Site. The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.
If you have any questions about these Terms or otherwise need to contact GIA for any reason, you can reach us at Legal Department, Gemological Institute of America, Inc., 5355 Armada Drive, Carlsbad, California 92008, United States of America.