GIA APPLICATION PROGRAMMING INTERFACE TERMS OF SERVICE AGREEMENT
Last Updated: 17 December 2019
THIS GIA APPLICATION PROGRAMMING INTERFACE TERMS OF SERVICE AGREEMENT (THE "AGREEMENT") IS A BINDING LEGAL AGREEMENT BETWEEN YOU AND GEMOLOGICAL INSTITUTE OF AMERICA, INC. ("GIA"). BY CLICKING THE "I ACCEPT" BUTTON, YOU ACKNOWLEDGE THAT YOU HAVE REVIEWED, UNDERSTAND AND ACCEPT THIS AGREEMENT AND THE TERMS (AS DEFINED BELOW).
FOR PURPOSES OF THIS AGREEMENT THE TERM "YOU" REFERS TO YOUR EMPLOYER OR THE COMPANY YOU REPRESENT OR OWN. YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND YOUR EMPLOYER OR SUCH COMPANY TO THIS AGREEMENT.
IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU MAY NOT RECEIVE THE SERVICES OR GIA CONTENT AS DESCRIBED IN THIS AGREEMENT.
The services provided by GIA to you under this Agreement include your requests for and receipt of certain GIA Content (the "Services"). The term "GIA Content" means collectively, images, content, data and information related to or included in GIA grading reports, which reports are the result from GIA’s performance of laboratory services, in each case as such images, content, data and information are made available by GIA in connection with the Services.
To request and receive the Services and GIA Content you must successfully complete GIA’s know-your-customer (KYC) process and execute a GIA Client Agreement.
Your receipt of the Services and the GIA Content is subject to the terms, conditions, restrictions and limitations in (i) this Agreement, (ii) any documentation that is provided by GIA online, electronically or in tangible form, (iii) the GIA Client Agreement, and (iv) any applicable policies and guidelines detailed on GIA’s website at www.GIA.edu (collectively, the "Terms"). If there is a conflict between the terms of this Agreement and terms in any of the other Terms and such conflict related to the Services or the GIA Content, then solely as related to the Services and GIA Content, the terms, conditions, restrictions and limitations in this Agreement shall control over any such conflicting terms in the other Terms.
The Services and the GIA Content available through the Services are available to certain approved clients and for such approved clients to access GIA Content programmatically via an application programming interface.
Section 1. Account and Registration
a. Accepting the Terms. You agree to comply with the Terms and agree that the Terms control your relationship with GIA with respect to the Services and the GIA Content. You may not accept this Agreement if (i) you are a person barred from using or receiving the Services or GIA Content under the applicable laws of the United States or other countries including without limitation the country in which you are resident or from which you request the Services or GIA Content; or (ii) you have not been approved by GIA in GIA’s sole discretion.
b. Registration. In order to access the Services and GIA Content, you will be required to (i) sign the GIA Client Agreement, (ii) provide certain information to GIA, such as identification and contact details, (iii) provide detail on your intended usage of the GIA Content made available via the Services, (iv) provide responses to certain questions, and (v) acknowledge this Agreement as part of the registration process for access to and receipt of the Services and GIA Content. GIA at its sole discretion will consider the registration information to determine approval and acceptance of your access to and receipt of the Services and GIA Content. You agree, represent and warrant that the information you provide to GIA will be accurate, complete, correct, and you will inform GIA promptly of any changes or updates to that information.
Section 2. Using the GIA Content
a. License Grant. Subject to the terms and conditions in this Agreement and the Terms, GIA grants to you, during the term of this Agreement, a limited, personal, revocable, non-transferable, non-sublicenseable, non-exclusive license as follows:
(i) to make requests for GIA Content by your Client Application (as defined below) for the number of requests purchased by you, and
(ii) to reproduce and display the GIA Content received from GIA via the Services solely for the intended usage specified during your registration for the Services and then solely on or within your Client Application, and not for any other purpose or use case.
All rights not expressly granted by GIA to you herein are reserved.
b. Compliance with Law, Third Party Rights, and Other GIA Terms of Service. You will comply with all applicable laws, regulations, and third party rights (including without limitation laws regarding the import or export of data, privacy, security, etc.). You will not use the GIA Content to encourage or promote illegal activity or violation of third party rights. In connection with your receipt of the Services or GIA Content, you will not violate any other Terms with GIA (or its affiliates).
c. Security. You agree to use the same security, encryption, firewalls and other technological means that you use to secure and protect your data and confidential information stored on your systems, but not less than reasonable means, to secure and protect the GIA Content stored in your systems from unauthorized access.
d. Permitted Access; Credentials; Inactivity. You will only access (or attempt to access) the GIA Content via the Services by the application programming interface described in the documentation for the Services and using your GIA issued credentials. GIA will assign to you access credentials, and you must use those credentials in connection with your requests for Services and GIA Content. You will not misrepresent or mask either your identity or the identity of your systems that connect to the Services via an application programming interface. GIA reserves the right to disable your access credentials if the credentials have been inactive for 180 consecutive days or more. When your credentials have been disabled, you will no longer be able to request or receive GIA Content with such credentials and will need to obtain new credentials from GIA to request and received GIA Content via the Services.
e. Limitations. GIA sets and enforces limits on your use of the Services and your requests for GIA Content (e.g., limiting the number of requests that you may make to receive GIA Content), in GIA’s sole discretion. You agree to, and will not attempt to circumvent, such limitations. If you would like to make requests beyond these limits, you must obtain GIA’s express written consent (and GIA may decline such request or condition acceptance on your agreement to additional terms and/or charges for that use).
f. Update and Modification to the Services. You acknowledge that GIA, in its sole discretion, may update, upgrade or otherwise modify the Services from time to time. You are required to make any changes to your systems that are required as the result of such update, upgrade or modification to the Services, at your sole cost and expense. GIA may disable older versions of the application programming interface used to access the Services and GIA Content after GIA makes available a new version of such application programming interface. Updates may adversely affect the manner in which you access the Services or receive GIA Content, or display GIA Content. Your continued access or use of the Services following an update, upgrade or modification will constitute binding acceptance of the update, upgrade or the modification.
g. Service Fees. GIA may offer certain Services and certain GIA Content free of charge. Alternatively, GIA may charge you a fee for the Services and the GIA Content that you access via the Services. In such event, the specific fees will be based on the Service plan that you select for the Services and GIA Content. Service fees may be one-time fees, “pay as you go” fees based on the amount of GIA Content that you wish to access, monthly subscription fees based on the amount of GIA Content that you think you will request during the month, etc. (collectively "Paid Services"). Paid Service must be purchased in the then-current increments offered by GIA. For clarity, should you look up GIA Content for the same GIA grading report five (5) times, it equates to 5 lookups and such 5 lookups will count toward your purchased number of lookups.
In some cases, the Paid Services will limit the amount of GIA Content you may request or retrieve over a period of time. For example, a Paid Service plan might enable you to make 100,000 requests for GIA Content in a month. Both the number of requests and the time before their expiration will be detailed at the time of purchase. Any unused requests remaining on the Paid Service will expire on the expiration date.
In order to provide you with continuous Service, GIA may offer recurring Paid Services plans (aka "Subscriptions"). GIA automatically renews all Subscriptions on a recurring basis in accordance with the billing terms you agreed to at the time you signed up for the Subscription. For information on the duration of your Subscription term and the recurring fees, refer to the email you received confirming your order ("Confirmation Email"). Your Subscription will automatically renew at the beginning of each billing period on the same terms until you cancel your Subscription. You may cancel at any time through your account settings or by contacting GIA at GIA.edu/contactus. Your notice of cancellation must be received at least two days prior to the end of the then-current Subscription term, and a cancellation will be effective on the next renewal date of your Subscription following your notice of cancellation. There are no refunds on Subscriptions for billing periods that have already started. GIA reserves the right to modify the price of Subscriptions. In the event the price for your Subscription has been modified, and you are required to pay a different fee than the prior fee for your Subscription, you will be notified at least thirty (30) days before you are billed at the different rate at the email address for you on file and you will have the opportunity to cancel your then-current Subscription. If you do not cancel your Subscription before the next billing renewal date (at the new rate), you will be deemed to have accepted the new fees.
When you provide a payment method to GIA, you are granting your express consent and are expressly authorizing GIA (and our designated payment processor) to automatically charge you each period for the Subscription. If you provide a payment method and our charge results in an overdraft, chargeback or other fee from your bank, you alone are responsible for that fee. You must provide and at all times must maintain accurate, complete, and current billing information, including without limitation your billing address, credit card number, and credit card expiration date. If you fail to disclose any such information, you agree that we may still continue charging you for any use of the Subscription unless you have terminated your Subscription as set forth herein. If you become aware of a potential breach of security to your billing information (such as credit card loss or theft), you must notify us immediately. If you do not pay on time or if we cannot charge your credit card or other payment method for any reason, we reserve the right to either suspend or terminate your access to GIA Content and terminate this Agreement. You also agree that you will be responsible for all costs and expenses incurred by GIA, such as court costs, collection fees, and attorney fees, incurred in connection with such collection efforts.
Unless otherwise provided in writing, fees for Subscriptions will be charged on the same day each month (or closest day in the month) until cancelled. If you cancel a Subscription, you will continue to have access to the Services and GIA Content, subject to the number of remaining calls allowed for the Subscription, until the expiration date, but you will not be entitled to a refund or credit for any fees already due or paid.
GIA reserves the right to change fees for Services upon thirty (30) days' advance notice, including without limitation instituting fees for Services previously provided at no charge. Your continued use of Services after notice of a change in fees will constitute your agreement to such changes.
You acknowledge that no refunds will be available for Paid Services, including without limitation any unused requests that expire or have not been used prior to the termination of this Agreement.
h. Taxes. GIA’s prices and fees are exclusive of transportation, insurance costs, duties, tariffs, and taxes including without limitation stamp duties, value added taxes (VAT) and use, sales, property (ad valorem), goods and services taxes (GST), withholding taxes, tax deducted at source (TDS) and other taxes (collectively, "Taxes"). You shall be responsible for and agree to pay all transportation, insurance costs, duties, tariffs and Taxes, including without limitation any and all Taxes levied on receipt of the Services or GIA Content or on account any payments under this Agreement. If, however, GIA has the legal obligation to pay Taxes and is required or permitted to collect such Taxes for which you are responsible under this Agreement, you shall promptly pay the Taxes invoiced by GIA unless you have furnished GIA with valid tax exemption documentation regarding such Taxes. You shall comply with all applicable tax laws and regulations. You agree to indemnify GIA for any Taxes and related costs paid or payable by you attributable to Taxes that would have been your responsibility under this Agreement if invoiced to you. If you are required to withhold any Taxes from any payments due GIA under this Agreement, then you will 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. By way of example, if the fees owed to GIA are $10,000 and you are required to withhold from the payment due GIA a Tax of 20%, then the fee dues due GIA will be $12,500 and you will pay to GIA $10,000 and pay the $2,500 Tax to the applicable taxing authority.
i. Feedback. If you provide feedback or suggestions about the Services, then GIA (and GIA’s licensees and client) may use such feedback and suggestions without obligation to you, including without limitation use during the term of this Agreement and after the termination of this Agreement.
j. Non-Exclusivity. GIA’s relationship with you under this Agreement is non-exclusive and you acknowledge that GIA may develop, and may work with third parties to develop, (i) products and services that may compete with how you use the Services and the GIA Content or (ii) any other products or services.
Section 3. Your Client Websites and Applications
a. Client Applications; and Monitoring. The Services are designed to help you enhance applications owned and operated by you (such applications are referred to in this Agreement as "Client Applications").YOU AGREE THAT GIA MAY (BUT IS NOT REQUIRED TO) MONITOR YOUR USE OF THE SERVICES AND REQUESTS FOR GIA CONTENT INCLUDING WITHOUT LIMITATION TO ENSURE QUALITY, IMPROVE GIA PRODUCTS AND SERVICES, AND VERIFY YOUR COMPLIANCE WITH THE TERMS. You will not interfere with this monitoring. GIA may use any technical means to overcome such interference. GIA may suspend your access to the Services and GIA Content without notice if GIA in its sole discretion reasonably believe that you are in violation of the Terms.
b. Ownership. GIA does not acquire ownership in your Client Applications. By receiving the Services, you do not acquire ownership of any rights in the GIA Content that is accessed through the Services. You acknowledge that GIA is and will remain the sole and exclusive owner of all right, title and interest in and to and the GIA Content and that the only rights granted to you with respect to the foregoing are the express licenses granted in this Agreement.
Section 4. Prohibitions and Confidentiality
a. Prohibitions. When using the Services and receiving the GIA Content, you will not (or allow those acting on your behalf to):
Create a Service that functions substantially the same as or as an alternative to the Services whereby GIA Content is available to third parties.
Perform an action with the intent or effect of introducing into the any computer system or network, the GIA Content or any other GIA products and services any viruses, worms, defects, Trojan horses, malware, or any items of a destructive nature.
Defame, abuse, harass, stalk, or threaten others.
Interfere with or disrupt the Services, access to GIA Content or any GIA systems (including without limitation servers, networks and software) used to provide the Services or access to the GIA Content
Reverse engineer or attempt to extract the source code for any GIA software.
Use the Services for any activities where the use or failure of the Service could lead to death, personal injury, or environmental damage (such as the operation of nuclear facilities, air traffic control, or life support systems).
Remove, obscure, or alter any GIA terms of service or any links to or notices of those terms.
b. Confidential Matters.
If your application for access to the Services and GIA Content is approved by GIA, then GIA will, as described above, provide you with access credentials which will enable you to access the Services and request GIA Content. Your credentials are to be kept confidential and are not to be published or otherwise made accessible to any person or entity. If you become aware that your credentials have been compromised, you agree to reset the credentials immediately. GIA may unilaterally reset your credentials if it notices that the credentials have been compromised.
Communications from GIA may contain GIA confidential information. GIA confidential information includes without limitation any materials, communications, and information that are marked confidential or that would normally be considered confidential under the circumstances. If you receive any such information, then you will not disclose it to any third party without GIA’s prior written consent and you will not use it except for purposes of performing this Agreement. GIA confidential information does not include information that you independently developed, that was rightfully given to you by a third party without confidentiality obligation, or that becomes public through no fault of your own. You may disclose GIA confidential information when compelled to do so by law if you provide GIA reasonable prior notice, unless a court orders that GIA not receive notice.
Section 5. Content
a. Applicable Law, Regulation, and Policy. Your access to the GIA Content made available via the Services may be restricted, limited, or filtered in accordance with applicable law, regulation, and policy. GIA may determine, in its sole discretion, what GIA Content is available via the Services and GIA may change that GIA Content from time to time in GIA’s discretion.
b. Prohibitions on Content. You will not, and will not permit your end users or others acting on your behalf to, do the following with GIA Content:
Display or distribute any GIA Content or other data or information pertaining to a graded gemstone that is inaccurate, false, fraudulent or misleading in any manner;
Represent, imply or infer that data or information pertaining to a graded gemstone is GIA Content or is from GIA when it is not;
Display or distribute any data or information pertaining to a graded gemstone from a source that is not GIA in combination with any GIA Content in such a manner that there is the potential for such data or information to be construed as being GIA Content or otherwise sourced from GIA;
Misrepresent the source or ownership of GIA Content; or
Remove, obscure, or alter any copyright, trademark, or other proprietary rights notices; or falsify or delete any author attributions, legal notices, or other labels of the origin or source of material, including without limitation the GIA Content.
Section 6. Trademarks and Publicity
a. No Use of GIA Trademarks. No license or other rights are granted to you in this Agreement to use any GIA trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of GIA.
b. Publicity. You will not make any statement regarding your use of the Services or the GIA Content which suggests partnership with, sponsorship by, or endorsement by GIA without GIA’s prior written approval in each instance.
Section 7. Privacy
a. GIA Privacy Policies. By using the Services and requesting GIA Content, GIA may use submitted information in accordance with GIA privacy policies.
Section 8. Termination
a. Termination. You may stop using the Services and requesting GIA Content at any time with or without notice to GIA. If you want to terminate this Agreement, you must provide GIA with prior written notice. GIA reserves the right to terminate this Agreement or discontinue the Services or your access to the Services and GIA Content for any reason or no reason and at any time without liability or other obligation to you, provided that in the event of such termination, any pre-paid fees which have not been used will be refunded to you, unless such a refund would violate applicable law. In addition, GIA may terminate this Agreement by written notice to you if you breach any term or condition of this Agreement and in the event of such termination, GIA will not be required to refund any unused, pre-paid fees to you.
b. Your Obligations Post-Termination. Upon termination of this Agreement, you will immediately (i) stop making requests for GIA Content, (ii) delete all GIA Content that you downloaded through the Services, including without limitation all GIA Content displayed on the Client Applications, and certify to GIA in writing the deletion of that GIA Content and (iii) pay all outstanding fees incurred prior to the termination of this Agreement.
c. Surviving Provisions. When this Agreement comes to an end, those terms that by their nature are intended to continue indefinitely will continue to apply, including but not limited to: Sections 2b, 2g, 3b, 4b, 5, 7, 8, 9, and 10.
Section 9. No Warranties and Limits on Liability
a. NO WARRANTIES. NOTWITHSTANDING ANYTHING TO THE CONTRARY, NEITHER GIA NOR ITS SUPPLIERS MAKE ANY PROMISES, REPRESENTATIONS OR WARRANTIES ABOUT THE SERVICES OR THE GIA CONTENT. FOR EXAMPLE, GIA DOES NOT MAKE ANY COMMITMENTS ABOUT THE GIA CONTENT ACCESSED THROUGH THE SERVICE, THE SPECIFIC FUNCTIONS OF THE SERVICES OR THEIR RELIABILITY, AVAILABILITY, OR ABILITY TO MEET YOUR NEEDS. GIA PROVIDES THE SERVICES AND THE GIA CONTENT “AS IS”.
SOME JURISDICTIONS PROVIDE FOR CERTAIN WARRANTIES, LIKE THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT AND WARRANTIES THAT MIGHT ARISE BASED ON USAGE OF TRADE OR COURSE OF PERFORMANCE. TO THE EXTENT PERMITTED BY APPLICABLE LAW, GIA EXCLUDES ALL WARRANTIES, GUARANTEES, CONDITIONS, REPRESENTATIONS, AND UNDERTAKINGS, INCLUDING WITHOUT LIMITATION ALL SUCH IMPLIED WARRANTIES.
b. LIMITATION OF LIABILITY. WHEN PERMITTED BY LAW AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GIA, AND GIA’S SUPPLIERS, WILL NOT BE RESPONSIBLE FOR LOST PROFITS, REVENUES, OR DATA; FINANCIAL LOSSES; OR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER OR NOT GIA WAS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
TO THE EXTENT PERMITTED BY LAW, THE TOTAL AGGREGATE LIABILITY OF GIA, AND ITS SUPPLIERS, FOR ANY AND ALL CLAIMS UNDER OR RELATED TO THIS AGREEMENT, THE SERVICES OR THE GIA CONTENT, INCLUDING WITHOUT LIMITATION FOR ANY BREACH OF ANY IMPLIED WARRANTIES THAT MAY NOT BE DISCLAIMED UNDER APPLICABLE LAW, IS LIMITED TO THE AMOUNT YOU PAID GIA FOR THE SERVICES DURING THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR, IF GREATER, ONE HUNDRED DOLLARS ($100), LESS IN ALL CIRCUMSTANCES AMOUNTS PREVIOUSLY PAID BY GIA IN SATISFACTION OF ANY LIABILITY UNDER THIS AGREEMENT.
IN ALL CASES, GIA, AND ITS SUPPLIERS, WILL NOT BE LIABLE FOR ANY EXPENSE, LOSS, OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE. THE LIMITATIONS IN THIS SECTION SHALL APPLY REGARDLESS OF THE NATURE OF THEORY OF LIABILITY, INCLUDING BREACH OF CONTRACT, WARRANTY, TORT, NEGLIGENCE OR ANY OTHER THEORY OF LIABILITY.
c. Indemnification. Unless prohibited by applicable law, you will defend, indemnify and hold harmless GIA, and its affiliates, directors, officers, employees, and users, against all liabilities, damages, losses, costs, fees (including legal fees), and expenses relating to any allegation or third-party legal proceeding to the extent arising from:
your misuse or your end users’ misuse of the GIA Content;
your violation or your end users’ violation of the Terms; or
your violation or your end users’ violation of any applicable law, rule or regulation.
Section 10. General Provisions
a. Modification. GIA may modify this Agreement from time to time. GIA will provide you notice of such modifications and you agree to review the new Agreement. If you do not agree to the modified Agreement, you must discontinue your use of the Services. Your continued request for Services and GIA Content after notice of a modification to this Agreement constitutes your acceptance of the modified terms and conditions in this Agreement.
b. Compliance Audit. GIA, or a third party agent subject to obligations of confidentiality, shall be entitled to inspect and audit any records or activity related to your access to the GIA Content provided or made available via the Services for the purpose of verifying your compliance with this Agreement. GIA may exercise its audit right at any time. You will provide your full cooperation and assistance with such audit and provide access to all GIA Content in your possession or control, applicable agreements, and records. Without limiting the generality of the foregoing, as part of the audit, GIA may request, and you agree to provide, a written report, signed by an authorized representative, listing all of your then-current uses of the GIA Content. The rights and requirements of this section will survive for one (1) year following the termination of this Agreement.
c. General Legal Terms. This Agreement does not create any third party beneficiary rights or any agency, partnership, or joint venture between you and GIA. Nothing in this Agreement will limit either party’s ability to seek injunctive relief from any court of competent jurisdiction. GIA is not liable for failure or delay in performance to the extent caused by circumstances beyond GIA’s reasonable control. If you do not comply with the Terms, and GIA does not take action right away, this does not mean that GIA is giving up any rights that it may have (such as taking action in the future). If it turns out that a particular term in this Agreement or the other Terms is not enforceable, this will not affect any other terms in this Agreement or the other Terms. This Agreement and the other Terms are the entire agreement between you and GIA relating to its subject and supersede any prior or contemporaneous agreements, representations or understandings on that subject. The laws of California, U.S.A., excluding California’s conflict of laws rules, will apply to any disputes arising out of or related to this Agreement or the Services. ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES WILL BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF SAN DIEGO COUNTY, CALIFORNIA, U.S.A., AND YOU AND GIA CONSENT TO PERSONAL JURISDICTION IN THOSE COURTS.
By providing acknowledgement, you represent and warrant that you have read, understand and agree to the Terms and this Agreement and that this Agreement affects your legal rights.
[End of Agreement]