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4
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Access to the Service
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4.1
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Access to the Service is provided to current Licensee. Licensee must
provide, at Licensee's own cost, all telephone, computer, modem and other
equipment and software necessary to access and use the Service and shall be
responsible for all charges necessary for such access and use.
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4.2
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Licensee must complete an application request for membership and access to
the Service and shall provide to Licensor: (i) sufficient proof to Licensor’s
reasonable satisfaction that Licensee is a bona fide member of the diamond and
jewelry trade with verifiable industry affiliation; (ii) a copy of a government
issued identification document or certificate confirming and verifying that
Licensee is a duly constituted company, corporation or entity according to the
laws of the state or country under which it was formed or incorporated; and
(iii) a government issued identification document for each of the individual
users of Licensee who shall have permitted access to and use of the Service.
Licensor will not make any personal identification documents available to anyone
without Licensee’s permission.
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4.3
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Licensor reserves the right to refuse, restrict, suspend, limit or
terminate any or all Services provided to any Licensee at any time for any
reason or no reason. Licensees who violate any of the provisions of this
Agreement will be subject to having their membership revoked and/or be excluded
from our PGDNet network.
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4.4
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Licensee may not disclose or share its access or password with any third
party. Password use is strictly limited to the registered member. Licensee may
request additional passwords from customer service in the event multiple users
require access to the company data.
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4.5
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Licensee may not disclose PGDNet or Licensor Information or derivatives
thereof to unauthorized third parties, including but not limited to Eco
Diamonds Price List and PGDNet Price Lists.
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4.6
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Licensee is required to fully comply with the terms of this Agreement and
any additional rules, procedures or service requirements as published from time
to time as circumstances require.
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4.7
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Subject to the terms of this Agreement, Licensor hereby grants Licensee a
limited, non-exclusive, non-transferable, non-sub licensable, revocable license,
for the term of this Agreement, to use the Service and the Information
exclusively by Licensee, for Licensee’s own personal use and for internal
purposes only.
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6
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Licensee Agrees not to and shall not permit or assist any other party
to:
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6.1
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Use the Service in any way that violates the laws of the United States
and/or any jurisdiction in which the Licensee resides.
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6.2
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Access the service in any unauthorized manner.
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6.3
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Reverse engineer or copy the computer code or the underlying logic of the
pricing and system.
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6.4
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Access the system for the purpose of copying the software, logic, look and
feel, or any features of the system for use in any competitive system.
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6.5
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Disturb, interfere or disrupt the service, computer hardware or software
providing the Service, including automatic downloads of queries via Licensee’s
computer programs and/or use or access of the service in any manner for which it
has not been designed or authorized.
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6.6
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Upload, email, or transmit anything that contains computer codes, viruses,
files or programs that interrupt, destroy, or limit the functionality of any
computer software, hardware or other equipment.
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6.7
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Attempt or obtain unauthorized access to any part of the Service or
computer system.
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6.8
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Transmit any program or virus through or into the computer hardware or
software used or provided by the Service.
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6.9
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Violate any Trademark, Copyright, agreement, Terms of Service, Rules or
Terms and Conditions associated with the Service.
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6.10
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Use any information provided by the Service or Licesnor to establish a
competing pricing or information service. This specifically includes the use of
Licensor price information as the basis for quoting prices as a percentage of
PGDNet prices on competing trading networks. The Licensee expressly represents
and warrants that none of the Licensee, its affiliates, or any of their
respective directors, officers, shareholders, employees, agents, professional
advisors, and other representatives shall directly or indirectly, during the
term of this Agreement and for a period of twenty-four (24) months following the
termination of this Agreement, establish any business, or provide any service,
software, or information, including but not limited to anything identical or
similar to the information provided by the Service and the content of the
Licensor’s Services, including but not limited to, the Information and any
components or methods of calculation relating to such Information, that is
competitive with Licensor or its affiliates or substantially similar thereto.
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6.11
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Misrepresent the information obtained from the Service or alter any
Information provided by the Service.
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6.12
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Provide false or misleading information including but not limited to
cloaking or altering the information that identifies the source, time and
location any contact made with the Service via the Internet.
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6.13
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Print, save, copy or distribute any of the information provided by
Licensor, except for the information provided to the Licensee in response to
requests about prices for Eco Diamonds.
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6.14
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Review, copy and/or download any Information to an Internet service or
company that provides information to the diamond, gem and jewelry trade and/or
competes with the services provided by Licensor.
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6.15
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Review, copy or download any Information including, but not limited to,
Licensor’s prices, listings of Eco Diamonds for sale, or buy requests for
use, including partial or derivative use, in any other website, or trading
system available to third parties.
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6.16
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Any of the following with respect to the Service, its software, the
Information, including but not limited to, its components and methods of
calculation, all information provided by the Service and the content of
Licensor, without the express written permission of Licensor: (i) copy; (ii)
remove or alter any copyright, trademark, patent or other notices; (iii)
translate, deconstruct, reverse engineer, decompile, disassemble or otherwise
attempt to discern the whole or any part or component thereof; (iv) alter,
modify, adapt, translate or reproduce the whole or any part or component
thereof, or merge the whole or any part or component thereof with or into other
software or information, or create derivative works based thereon; (v) directly
or indirectly distribute or make available the whole or any part or component
thereof; or (vi) take or authorize any action that could detrimentally interfere
with the ownership by Licesnor or the proper workings of the whole or any part
or component thereof, including but not limited to, use any robot, spider or
other device or process to monitor or copy the whole or any part or component
thereof, or knowingly transmit any virus or other potentially harmful device in
connection with Licensee’s use thereof.
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7
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Proprietary Rights
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7.1
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Licensee acknowledges and agrees that the Service, its software,
information provided by the Service and the content of Licensor’s Services
contain proprietary and confidential information. Licensee acknowledges that
that the Service, its software, the Information, including but not limited to,
its components and methods of calculation, all information provided by the
Service and the content of Licensor (collectively, “Confidential Information”),
are owned by Licensor, and that such is Confidential Information of Licensor and
protected by various property and intellectual property rights owned exclusively
by Licensor, including but not limited to rights arising under various U.S.
federal, U.S. state and international regulations, laws and treaties, including
but not limited to, Intellectual Property rights, misappropriation laws,
copyrights, database rights, trademarks and/or patents. Licensee agrees not to
copy, disclose, or use in any manner information provided by or through the
Service. “Intellectual Property” shall include rights in copyrights, database
rights, domain names, trademarks and service marks and all goodwill associated
therewith and symbolized thereby, patents, patent applications, inventions,
discoveries, concepts, improvements, know-how, confidential information, trade
secrets and design rights, in each case whether registered or unregistered and
including all applications and rights to apply for registration, and all similar
or equivalent rights.
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7.2
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Licensee recognizes that all information provided through Licensor is
copyrighted by Licensor. Licensee agrees to respect all intellectual property
rights of Licensor. Any copyright, trademark, logo, printed material, on-line
information, or price report of Licensor may not be used in any promotion,
advertising or publication without the express written permission of Licensor.
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7.3
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Licensee acknowledges and agrees that the Service, its software, the
Information, including but not limited to, its components and methods of
calculation, all information provided by the Service and the content provided by
Licensor, together with all rights, titles and interests therein, including but
not limited to all related Intellectual Property rights and all other property
and proprietary rights is solely and exclusively owned by Licensor.
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7.4
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Licensee acknowledges and agrees that all such rights, titles and
interests in and to the Service, its software, the Information, including but
not limited to, its components and methods of calculation, all information
provided by the Service and the content of Licensor are valid, subsisting and
enforceable, and the Service, its software, the Information, including but not
limited to, its components and methods of calculation, all information provided
by the Service and the content provided by Licensor, is a product of the
selection, coordination, arrangement, and editing of Licensor and its affiliates
and that such efforts involve the considerable expenditure by Licensor and its
affiliates of time, effort, creativity, money and judgment.
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7.5
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Licensee agrees that it shall not, directly or indirectly, do or cause to
be done any act which may in any way jeopardize or adversely affect the validity
or enforceability of, or otherwise infringe or misappropriate, any rights,
titles and interests of Licensor in and to the Service, its software, the
Information, including but not limited to, its components and methods of
calculation, all information provided by the Service and the content provided by
Licensor, or any Intellectual Property and any property and proprietary rights
related thereto. Licensee further agrees that it will not oppose or contest any
application by Licensor and/or any of its affiliates in connection with the
Service, its software, the Information, including but not limited to, its
components and methods of calculation, all information provided by the Service
and the content provided by Licensor, including but not limited to, any
application directed to any rights subsisting therein, in the United States or
elsewhere, or any application for extension of such rights
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7.6
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All information regarding the Service, its software, the Information,
including but not limited to, its components and methods of calculation, all
information provided by the Service and the content of Licensor, no matter the
form provided, including without limitation, written, electronic or orally
conveyed information, is considered proprietary and Confidential Information of
Licensor. In fulfilling its confidentiality obligations, each party shall use a
commercially reasonable standard of care, at least the same standard of care,
which it uses to protect its own similar confidential or proprietary
information. The specific terms of this Agreement shall be treated as
Confidential Information. Confidential Information shall not include (i) any
information that is or becomes generally available to the public or to the
receiving party hereunder from sources other than the providing party (provided
that the receiving party is aware of the source of such information and such
source is not known to the receiving party to be subject to a confidentiality
agreement or obligation with regard to such information), (ii) any information
that is independently developed by the receiving party without use of or
reference to information from the providing party or (iii) any information
already available to or in the possession of the receiving party prior to
delivery by the forwarding party, free of a confidentiality obligation.
Notwithstanding the foregoing, either party may reveal Confidential Information
to any regulatory agency or court of competent jurisdiction if such information
to be disclosed is (a) approved in writing by the other party for such
disclosure or (b) required by law, regulatory agency or court order to be
disclosed by a party, provided, if permitted by law, that prior written notice
of such required disclosure is given to the other party, except that prior
written notice shall not be required to be provided prior to disclosure to a
regulator having jurisdiction over the receiving party, and provided further
that the providing party shall cooperate with the other party to limit the
extent of such disclosure. With the exception of Confidential Information
regarding the Service, its software, the Information, including but not limited
to, its components and methods of calculation, all information provided by the
Service and the content of Licensor, which shall survive termination or
expiration of this agreement without any period restriction, the provisions of
this Section 7.6 shall survive termination or expiration of this Agreement for a
period of two (2) years from disclosure by either party to the other of the last
item of such Confidential Information.
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7.7
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Given the nature of the Confidential Information and the terms and
conditions of this Agreement and the damage that would result upon unauthorized
disclosure or use, the parties agree that monetary damages alone would not be a
sufficient remedy for the breach or threatened breach of Section 7.6. In
addition to all other rights and remedies, a party will be entitled to seek
specific performance and injunctive and other equitable relief as a remedy for
any breach or threatened breach of Section 7.6 without showing actual monetary
damages in connection therewith, and without requiring a bond to be posted.
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15
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Termination
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15.1
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Both parties shall have the ability to terminate this Agreement for any
reason at any time upon notice to the other party.
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15.2
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Upon termination of this Agreement for any reason, the licenses granted to
Licensee herein shall immediately cease. Upon termination of this Agreement,
Licensee shall immediately cease using and no longer have access to the Service,
its software, the Information, including but not limited to its components and
methods of calculation, all information provided by the Service and the content
of Eco Diamonds. Licensee shall promptly, at Licensor’s option, delete
any software, Information, including but not limited to, Licensor’s components
and methods of calculation, all information provided by the Service and the
content of Licensor, and all copies thereof from your storage facilities and/or
promptly return to us all originals and copies thereof, along with all
documentation and other confidential information provided pursuant to this
Agreement. At Licensor’s request, Licensee shall provide to Licensor written
confirmation from a director or Licensee’s internal legal counsel of compliance
with this Section 15.2.
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15.3
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All restrictions regarding the use and distribution of the Information
provided in the terms of this Agreement shall survive the termination of this
Agreement.
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16
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Indemnity
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Licensee agrees to indemnify, defend, and hold Licensor and its
affiliates, subsidiaries, related parties, equity owners, officers, directors,
employees, agents, independent contractors, advertisers, partners, and
co-branders harmless from any claim, demand, or liability, including reasonable
attorney fees and costs, that may be made by any third party, that is due or
arising out of Licensee’s violation of the terms of this Agreement.
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