Terms and Conditions

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GEMFIND TECHNOLOGY SUBSCRIPTION – TERMS AND CONDITIONS

The following “Terms and Conditions” govern your Subscription to and use of GemFind Technology and define the agreement between you and GemFind with regards to that Subscription. By signing and/or electronically submitting the GemFind Order Form you acknowledge that you have read, understand, and agree to the terms below:

DEFINTIONS: As used in this Agreement, the following terms have the following meanings:

(a). “GemFind” and “GF” mean GemFind and Softech USA, Inc., a California corporation and the parent company of GemFind.

(b). “User”, “You” or “SUBSCRIBER” means the individual and/or company applying for or using the Subscription.

(c). “Product Data” means both each SUBSCRIBER’s virtual inventory data including images and associated product specifications and descriptions, and the compilation of all SUBSCRIBER’s virtual inventory data.

(d). “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.

(e). “Retailer” means any company who is in the business of buying from a Supplier and/or selling retail to consumers.

(f). “Network” means the GemFind administrative portal at www.gemfind.net and www.jewelcloud.com, 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.

(g). “Technology” means certain proprietary software, databases, and documentation which include products known separately as Diamond Link, Ring Builder, Stud Builder, Watch Builder, Pendant Builder, and JewelCloud and collectively as GemFind Technologies (all or any constituent part of which shall be referred to herein as the “Technology”)

(h). “Subscription” means the grant of non-exclusive access to and use of the Technology provided under this agreement.

(i) “Order Form” means (i) the GemFind Order Form with your written signature or (ii) the GemFind website with a GemFind Order Form submission with your electronic signature in the form of checking the box that you have read, understand and agree to these Terms and Conditions.

1. GRANT OF SUBSCRIPTION
(a). GemFind has developed and will continue to develop certain proprietary software, databases, and documentation which include products known separately as Diamond Link™, Ring Builder®, Stud Builder™, Watch Builder™, Pendant Builder™, and JewelCloud™ and collectively as GemFind Technologies (all or any constituent part of which shall be referred to herein as the “Technology”). GemFind makes the Technology available to clients on a subscription basis, typically in conjunction with other services for website development, website hosting, and online marketing. Said other services are governed by an agreement or agreements separate from this agreement.

Subject to the terms and conditions set forth herein and in the Order Form, during the term set forth herein, GemFind agrees to provide you (“SUBSCRIBER”) with non-exclusive access to and use of the Technology. SUBSCRIBER is hereby granted a subscription to the Technology as specified in this agreement for a single internet domain (unless otherwise provided for in the Order Form), solely on a limited, revocable, non-exclusive, non-transferable basis, except as expressly otherwise allowed under this agreement (the “License”).

The License shall be effective solely during the term of this Agreement, with no right to grant any such permission to others, solely to use the Technology in accordance with the terms and conditions of this Agreement, as long as SUBSCRIBER pays the fees in the amounts and at the times set forth in the Order Form presented to and signed by SUBSCRIBER prior to the start of their Subscription. SUBSCRIBER may use the Technology only pursuant to the terms and conditions of this Agreement. FOR THE AVOIDANCE OF DOUBT, ALL RIGHTS NOT EXPRESSLY GRANTED TO SUBSCRIBER HEREIN ARE RESERVED TO GEMFIND.

(b). This Agreement does not impact in any way title or ownership of the Technology (both of which remain exclusively with GF), but only a limited right of use in accordance with the terms of this Agreement. SUBSCRIBER shall take affirmative steps to ensure that employees, agents, consultants, and end-users authorized by SUBSCRIBER to access the Technology will use the Technology in accordance with the terms of this Agreement. SUBSCRIBER agrees not to modify, create derivative works of, translate, reverse engineer, decompile, disassemble or otherwise recreate or gain access to the source code of the Technology.

(c). SUBSCRIBER represents to GemFind that any information or materials provided by SUBSCRIBER for use in conjunction with the Technology (“SUBSCRIBER Materials”) are and shall remain the property of SUBSCRIBER, who shall retain all intellectual property rights therein; and that SUBSCRIBER’s activities in connection with this Agreement will not violate any contract or other agreement to which SUBSCRIBER is bound, or the rights of any third party.

2. SUBSCRIPTION FEES AND PAYMENTS
(a). In consideration of the rights and licenses granted by GemFind to SUBSCRIBER under this agreement, SUBSCRIBER will pay GemFind a monthly fee for use of the Technology (the “Subscription Fee”) in the manner set forth in the Order Form. GemFind may increase the Subscription Fee after the Term set forth in the Order Form. All fees are fully earned when due and non-refundable when paid.

(b). Unless otherwise specified, invoices for the Subscription Fees and related charges shall be due and payable within 15 days after the date of the invoice. If any invoice is not paid within 30 days after the date of the invoice, GemFind may charge SUBSCRIBER a late fee of $25 for such invoice; in addition any amounts payable to GemFind not paid when due will bear interest at the rate of one and one half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less. If any SUBSCRIBER payment – including credit card transactions – is returned for insufficient funds or any other reason – GemFind will impose a processing charge of $25. Delinquent accounts may be suspended at GF’s sole discretion.

(c). In the event of a suspension of the Technology, upon a reactivation request by SUBSCRIBER, SUBSCRIBER shall pay GemFind a reactivation fee in the amount of $100, in addition to full payment of the outstanding balance due.

(d). If GemFind is required to take legal action to collect any payment due, whether on its own, through an attorney at law, under advice there from, or through a collection agency, SUBSCRIBER will pay all costs, fees, and expenses arising from or related to the collection including, but not limited to all court costs and GF’s reasonable attorneys’ fees.

3. HOSTING, TECHNOLOGY AVAILABILITY AND SUPPORT
(a). GemFind shall host and maintain the Technology on its servers (the “GF Servers”). The Technology will maintain an average uptime of no less than 99%, excluding scheduled or emergency maintenance, force majeure, and any other events beyond GF’s reasonable control. Downtime is any time in which a GemFind server is offline such that a computer is unable to connect to the Technology via the Internet. GemFind is not responsible for DNS outage unless GemFind has been engaged to host and/or monitor Subscribers DNS.

(b). During the term of this Agreement, GemFind shall provide technical support to SUBSCRIBER, including providing SUBSCRIBER with access to a SUBSCRIBER of the GemFind support staff via a telephone help line, which support staff SUBSCRIBER will consult with SUBSCRIBER for a reasonable amount of time by telephone during the hours of 9 AM and 5 PM Pacific Time, Monday through Friday to assist SUBSCRIBER with troubleshooting, error correction and use of the Technology.

4. SUBSCRIPTION & ELIGIBILITY.
(a). Subscription is limited to qualified Suppliers and Retailers in the jewelry industry. GemFind reserves the right to accept or reject SUBSCRIBER registrations. SUBSCRIBER agrees to provide GemFind all necessary information to verify and substantiate such information. SUBSCRIBER further agrees to update such information to ensure that it is current, complete, and accurate. SUBSCRIBER represents and warrants that the information submitted to GemFind is current, complete, and accurate; and that SUBSCRIBER is not a competitor or working for a competitor of GemFind.

(b). SUBSCRIBER Approval. SUBSCRIBER shall only become an authorized SUBSCRIBER of GemFind, and its registration shall only be completed, upon SUBSCRIBER’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 SUBSCRIBER.

(c). Username & Password Security. Administrative access to the Network and use of the Services is limited to one user name and password for each SUBSCRIBER. SUBSCRIBER 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 SUBSCRIBER. GemFind reserves the right to cancel and/or replace any password for any reason. SUBSCRIBER’s use of the Network is limited to object code format only in the form and manner in which access is provided by GemFind. SUBSCRIBER 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 SUBSCRIBER’s user name or password, or any breach of security through a SUBSCRIBER’s account, then SUBSCRIBER shall notify GemFind immediately in writing or email to support@GemFind.net.

(d). Use of SUBSCRIBER Information. GemFind collects information about SUBSCRIBERs and their use of the Network. SUBSCRIBER 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 SUBSCRIBERs rights of privacy, publicity or other such rights, provided GemFind’s use is in accordance with GemFind’s Privacy Policy.

(e). SUBSCRIBERs shall not share names or contact information of other SUBSCRIBERs with third parties, nor shall SUBSCRIBERs send mass e-mail blasts to other SUBSCRIBERs.

5. INTELLECTUAL PROPERTY
(a). 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. SUBSCRIBER 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.

(b). Supplier Rights. While GemFind owns compilation rights to the Product Data, each SUBSCRIBER 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 SUBSCRIBERs use thereof. At any time during the Term of this Agreement or thereafter, GemFind will remove and discontinue distribution of a SUBSCRIBERs Product Data, upon 30 days written notice to GemFind.

(c). Licenses.

(i). GemFind hereby grants to SUBSCRIBER a non-exclusive, non-transferable, revocable license to use the Network to post, upload, edit, and share or make available for download (if SUBSCRIBER permits as provided for in 6(c)(ii)(a) of this Agreement) its own Product Data on the Network for so long as SUBSCRIBER is and remains a registered SUBSCRIBER 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.jewelcloud.com.

(ii) GemFind hereby grants SUBSCRIBER 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:

a. SUBSCRIBER may not download the Product Data of another SUBSCRIBER without the permission of the SUBSCRIBER supplying said Product Data. SUBSCRIBER may not access, use, store, or share the Product Data of another SUBSCRIBER without the permission of the SUBSCRIBER supplying the Product Data. SUBSCRIBER may provide other SUBSCRIBERs access to its Product Data by setting permission to specified SUBSCRIBERs or by granting general blanket permission to all SUBSCRIBERs. SUBSCRIBERs may grant other SUBSCRIBERs permission to download their Product Data by setting specific data permission in the administrative interface.

b. SUBSCRIBER agrees not to use the Product Data in any way beyond the scope of this License and that SUBSCRIBER will use sufficient due diligence to safeguard and protect the Product Data from unauthorized infringement.

c. SUBSCRIBER 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 SUBSCRIBER in your business or organization in accordance with these Terms.

d. Under no circumstance whatsoever shall any SUBSCRIBER reveal, re-sell or otherwise re-distribute Product Data to any third party or use the Product Data within any commercial product or service not sold by GemFind.

e. SUBSCRIBER 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. SUBSCRIBER 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.

f. SUBSCRIBER 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 SUBSCRIBERs business or organization will actually and materially harm and/or prejudice the interests of GemFind. SUBSCRIBER agrees that in the event SUBSCRIBER breaches this License, SUBSCRIBER will be liable for damages and/or injunctive relief as may be determined by a court of competent jurisdiction.

(d). Marketing Program Materials. All Marketing Materials via print, online, social network or web related contain 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.

(e). No Guarantees of the Accuracy of Product Data. SUBSCRIBER 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. SUBSCRIBER 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 SUBSCRIBER agrees that it will use caution and common sense when buying, selling or transacting business based on Product Data supplied on the Network.

(f). Data Authenticity. SUBSCRIBER 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. SUBSCRIBER 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).

(g). 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.

(h). 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.

(i). Agents. SUBSCRIBER may appoint agents or sub-contractors to carry out any of the activities related to the integration of Product Data and or Services into SUBSCRIBER’s website. However, SUBSCRIBER 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. SUBSCRIBER 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.

(j). Upon termination of this License, SUBSCRIBER may no longer access the Product Data and shall promptly, at GemFind’s option, delete any Data and all copies thereof from SUBSCRIBERs 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, SUBSCRIBER shall provide to GemFind written confirmation from a director or its internal legal counsel, of compliance with this clause.

(k). 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 SUBSCRIBER for improvement of the Network or Services. Nothing in this Agreement shall preclude GemFind from developing (for itself or for others) products or services that are competitive with those produced for a SUBSCRIBER, irrespective of their similarity to Services which may be delivered to SUBSCRIBER pursuant to this Agreement.

(l). Injunctive Relief. Any breach of any of the foregoing shall result in irreparable harm to GemFind and, accordingly, SUBSCRIBER 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.

6. NONDISCLOSURE & NON-DISPARGEMENT
(a). “Confidential Information” means any and all information, which is of a confidential, proprietary or trade secret nature that is furnished or disclosed by one party to the other party under this Agreement. Without limiting the generality of the foregoing, Confidential Information includes the specific business terms of this Agreement and any other information that is marked as “Confidential,” “Proprietary,” “Trade Secret,” or in some other manner to indicate its confidential, proprietary or trade secret nature.

(b). Confidential Information will remain the property of the disclosing party, and the other party will not be deemed by virtue of its access to the other party’s Confidential Information to have acquired any right or interest in or to any such Confidential Information, other than as specifically set forth herein. The receiving party agrees: (i) to hold the Confidential Information in strict confidence; (ii) to limit disclosure of the Confidential Information to the receiving party’s own employees, agents or authorized consultants having a need to know the Confidential Information for the purposes of this Agreement; (iii) not to disclose any Confidential Information to any third party; (iv) to use the Confidential Information solely and exclusively in accordance with the terms of this Agreement in order to carry out its obligations and exercise its rights under this Agreement; and (v) to notify the disclosing party promptly of any unauthorized use or disclosure of the Confidential Information and to cooperate with and assist the disclosing party in every reasonable way to stop or minimize such unauthorized use or disclosure.

(c). The obligations of either party under this Section 4 will not apply to information that the receiving party can demonstrate (i) at the time of disclosure is generally available to the public or after disclosure becomes generally available to the public through no breach of agreement or other wrongful act by the receiving party; (ii) is independently developed by the receiving party without regard to the Confidential Information of the other party; or (iii) is required to be disclosed by law or order of a court of competent jurisdiction or regulatory authority, provided that the receiving party shall attempt to furnish prompt written notice of such required disclosure and reasonably cooperate with the disclosing party, at the disclosing party’s expense, in any effort made by the disclosing party to seek a protective order or other appropriate protection of its Confidential Information.

(d). The receiving party agrees that if a court of competent jurisdiction determines that the receiving party has breached, or attempted or threatened to breach, its confidentiality obligations to the disclosing party or the disclosing party’s proprietary rights, the disclosing party will be entitled to obtain appropriate injunctive relief and other measures restraining further attempted or threatened breaches of such obligations. Such relief or measures shall be in addition to, and not in lieu of, any other rights and remedies available to the disclosing party.

(e) Non-Disparagement. The Parties agree not to make any statements, written or verbal, or cause or encourage others to make any statements, written or verbal, that defame, disparage or in any way criticize the personal or business reputation, practices, or conduct of the other Party, its employees, directors, and officers. The Parties acknowledge and agree that this prohibition extends to statements, written or verbal, made to anyone, including but not limited to, the news media, investors, potential investors, any board of directors or advisory board or directors, industry analysts, competitors, strategic partners, vendors, employees (past and present), and clients. The Parties understand and agree that this Paragraph is a material provision of this Agreement and that any breach of this Paragraph shall be a material breach of this Agreement, and that each Party would be irreparably harmed by violation of this provision.

7. GEMFIND WARRANTIES AND REMEDIES FOR BREACH OF WARRANTY
(a.) OTHER THAN AS EXPRESSLY AGREED IN SECTION 4(a) OF THIS AGREEMENT, GemFind DOES NOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, INTEGRITY OF DATA, INFORMATION, OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET. EXCEPT AS MAY BE DUE TO GF’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, GemFind WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION OR INADVERTENT DISCLOSURE OF, DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED ON ITS SYSTEM.

(b). GemFind represents and warrants that it will provide access to and use of the Technology in accordance with the availability levels specified in this Agreement.

(c). GemFind does not warrant the Technology against claims of infringement caused by: (i) modifications to the Technology or any portion of it by anyone other than GemFind or its authorized agents and contractors; or (ii) SUBSCRIBER’s failure to use any new or corrected versions of the Technology or documentation made available by GEMFIND.

(d). Each party warrants to the other that it shall perform its responsibilities and exercise its rights under this Agreement in a manner that does not infringe, or constitute an infringement or misappropriation of, any U.S. patent, copyright, trademark, trade secret or other proprietary rights of any third party.

8. SUBSCRIBERS’S REPRESENATIONS AND WARRANTIES
(a). SUBSCRIBER hereby represents and warrants to GF, and agrees that during the Term SUBSCRIBER will ensure that:
(i). SUBSCRIBER is the owner or valid licensee of the SUBSCRIBER Materials and each element thereof, and SUBSCRIBER has secured all necessary licenses, consents, permissions, waivers and releases for the use of the SUBSCRIBER Materials and each element thereof, including without limitation, all trademarks, logos, names and likenesses contained therein, without any obligation by GemFind to pay any fees, residuals, guild payments or other compensation of any kind to any Person;

(ii). SUBSCRIBER’S use, publication and display of the SUBSCRIBER Materials will not infringe any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any Person, or constitute a defamation, invasion of privacy or violation of any right of publicity or any other right of any Person, including, without limitation, any contractual, statutory or common law right or any “moral right” or similar right however denominated;

(iii). SUBSCRIBER assumes full responsibility for providing End Users with any required disclosure or explanation of the various features of the Technology and any goods or services described therein, as well as any rules, terms or conditions of use.

(b). SUBSCRIBER hereby grants to GemFind a non-exclusive, royalty-free, worldwide right and license during the Term to do the following to the extent necessary in the provision of the Technology under the Order Form: (i) digitize, convert, install, upload, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, distribute, publish, publicly display, publicly perform and hyperlink the SUBSCRIBER Materials; and (ii) make archival or back-up copies of the SUBSCRIBER Materials. Except for the rights expressly granted above, GemFind is not acquiring any right, title or interest in or to the SUBSCRIBER Materials, all of which shall remain solely with SUBSCRIBER.

9. INDEMNIFCATION
(a). If a third party brings an action against one party (the “Indemnitee”) that constitutes a breach of this warranty by the other party (the “Indemnitor”), then the Indemnitor will, at its own expense, settle the claim or defend the Indemnitee in such proceeding and the Indemnitor will pay all settlements, costs, damages and legal fees and expenses finally awarded provided that the Indemnitee promptly notifies the Indemnitor in writing of the proceeding, provides the Indemnitor a copy of all information received by the Indemnitee with respect to the proceeding, cooperates with the Indemnitor in defending or settling the proceeding, and allows the Indemnitor to control the defense and settlement of the proceeding, including the selection of attorneys. The Indemnitee may observe the proceeding at its own expense.

(b). If such a proceeding alleging an infringement by GemFind is brought against GemFind or SUBSCRIBER or appears to GemFind to be likely to be brought, GemFind may, at its sole option and expense, (i) obtain the right for SUBSCRIBER to continue using the allegedly infringing item(s), (ii) replace or modify the item(s) to resolve such proceeding or (iii) upon notice to SUBSCRIBER, terminate this Agreement or SUBSCRIBER’s use of the Technology or any portion thereof, provided that GemFind promptly refunds to SUBSCRIBER the prorata portion of any fees pre-paid by SUBSCRIBER. This Section 9(b) states each party’s entire obligation to the other party and such other party’s sole remedy with respect to any claim of infringement.

(c). THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND TITLE, AND ANY AND ALL IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.

10. LIMITATION OF LIABILITY
(a). If SUBSCRIBER should become entitled to claim damages from GemFind (including without limitation, for breach of contract, breach of warranty, negligence or other tort claim), then except as specifically provided herein to the contrary, GF’ liability hereunder will be limited as follows:

(i). SUBSCRIBER acknowledges that it alone is responsible for the results obtained from its use of the Technology, including without limitation the completeness, accuracy and content of such results. If any such results are inaccurate or incomplete solely due to any defect in the Technology, GF’s sole obligation shall be to correct or modify the Technology at no additional charge to SUBSCRIBER. GemFind shall not be responsible or liable in any other manner for any such results (whether foreseen or unforeseen).

(ii). Except with respect to liability arising under Section 10(b) of this Agreement, GF’s liability to SUBSCRIBER for any recoverable losses or damages arising under or in connection with this Agreement shall be limited to only the amount of SUBSCRIBER’s actual direct damages, not to exceed (in the aggregate for all claims arising within a month) an amount equal to (i) the prorated portion of the fees paid by SUBSCRIBER for access to the Technology during the calendar month in which SUBSCRIBER’s claim arises, as applicable, minus (ii) the amount of any other damages recovered by SUBSCRIBER from GemFind for other claims arising in such calendar month.

(b). In no event will GemFind or any person or entity involved in the creation, manufacture or distribution of any software, Technologies or other materials provided under this Agreement be liable for: (i) any damages caused by SUBSCRIBER or any person or entity acting in concert with SUBSCRIBER or controlled by or controlling SUBSCRIBER; (ii) any claims or demands of third parties other than those third party claims covered by Section 10(b); or (iii) any lost profits, loss of business, loss of use, lost savings or other consequential, special, incidental, indirect, exemplary or punitive damages.

(c). The limitations in Section 11(a) do not apply to claims by SUBSCRIBER for reimbursement for personal injury or property damage caused by GF’s gross negligence. The limitations of liability set forth in this Section 10 will survive and apply notwithstanding the failure of any limited or exclusive remedy for breach of warranty set forth in this Agreement.

11. TERM AND TERMINATION
(a). The Subscription will commence on the date as indicated in the Order Form and continue for the duration of the Initial Term indicated on the Order Form. Thereafter, the Term will automatically renew for successive periods of the Initial Term unless either party gives written notice to the other party of non-renewal at least 30 days prior to expiration of the then-current term.

(b). Either party may terminate this Agreement immediately upon the occurrence of any one or more of the following events: (i) the other party fails to pay when due any amounts required to be paid under this Agreement; (ii) the other party breaches any material term or provision of this Agreement (other than a breach described in subsection (i) above), and if capable of cure, such breach remains uncured 30 days after the non-breaching party gives written notice thereof to the breaching party); or (iii) the other party becomes insolvent, makes an assignment for the benefit of its creditors, institutes or becomes subject to any proceeding under any bankruptcy or similar laws for the relief of debtors, or seeks the appointment of, or becomes subject to the appoint of, any trustee or receiver for all or any portion of such party’s assets.

(c). GemFind may terminate this Agreement: (i) if the Services are prohibited by applicable law, or become impractical or unfeasible for any technical, legal or regulatory reason, by giving SUBSCRIBER as much prior notice as reasonably practicable or (ii) immediately by giving written notice to SUBSCRIBER, if GemFind determines in good faith that SUBSCRIBER’S use of the SUBSCRIBER Web site or the SUBSCRIBER Content violates this Agreement.

(d). Upon termination of this Agreement for any cause or reason whatsoever, neither party shall have any further rights or obligations under this Agreement, except as expressly set forth herein.

12. LAW AND DISPUTES
(a). Governing Law; Jurisdiction. Any controversy or claim arising out of or relating to this Agreement, the formation of this Agreement or the breach of this Agreement, including any claim based upon arising from an alleged tort, shall be governed by the substantive laws of the State of California, except that all arbitration and related proceedings conducted pursuant to Section 13(c), including without limitation confirmation proceedings, shall be governed by the Commercial Rules of the American Arbitration Association.

(b)ANY SUIT, ACTION OR PROCEEDING CONCERNING THIS AGREEMENT THAT IS NOT SUBJECT TO MANDATORY ARBITRATION PURSUANT TO SECTION 13(c) BELOW MUST BE BROUGHT IN A CALIFORNIA STATE OR FEDERAL COURT LOCATED IN ORANGE COUNTY, CALIFORNIA, AND EACH OF THE PARTIES HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS (AND OF THE APPROPRIATE APPELLATE COURTS THEREFROM) IN ANY SUCH SUIT, ACTION OR PROCEEDING AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT ANY SUCH SUIT, ACTION OR PROCEEDING WHICH IS BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

(c). Mandatory Arbitration. Notwithstanding the above, each party agrees that any dispute between the parties arising out of this Agreement or in any manner relating to the Services must be submitted by the parties to arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, as administered by a recognized provider of arbitration services agreed upon by both parties, before a single arbitrator, appointed in accordance with such rules. Judgment upon the award may be entered in any court having jurisdiction thereof. Any such arbitration will be held in Orange County, California. Any action filed by either party in any court in violation of this Section should be dismissed pursuant to this Section.

(d). The parties expressly agree that the provision for costs, fees, and expenses in Section 3(d) of this agreement shall be unilateral in favor of GF, and shall not create or imply any right of SUBSCRIBER to recover costs, fees, or expenses under any action relating to this agreement.

12. GENERAL
(a). Independent Contractor. GemFind and SUBSCRIBER are independent contractors and nothing contained in this Agreement places GemFind and SUBSCRIBER in the relationship of principal and agent, master and servant, partners or joint venturers. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.

(b). Any notice or other communication required to be made or given by either party pursuant to this Agreement will be in writing, in English, and will be deemed to have been duly given: (i) five (5) business days after the date of mailing if sent by registered or certified U.S. mail, postage prepaid, with return receipt requested; (ii) when delivered if delivered personally, (iii) one business day after being sent by express courier services, or (iv) the day sent when notification is sent via email to the email address provided for GemFind or SUBSCRIBER in the Order Form, or via Basecamp through SUBSCRIBER’s GemFind Basecamp project. All notices will be sent to the other party at its address as set forth on the Order Form or at such other address as such party will have specified in a notice given in accordance with this section.

(c). Neither party may assign this Agreement without the prior written consent of the other. Any purported assignment in violation of the preceding sentence will be void and of no effect. Notwithstanding the foregoing, either party may assign this Agreement and/or any of its rights, licenses and/or obligations hereunder, upon written notice to the other party and without such other party’s consent, to any of such other party’s affiliates or subsidiaries, or in connection with a merger, sale or reorganization of such other party or due to change of control of such other party or of a business unit, division or line of business of such other party; provided, however, that the assigning party shall at all times continue to be responsible for all obligations hereunder, including those undertaken by the assignee; and provided further, that in the case of an assignment permitted by this Section 14(c), only GemFind or its successor-in-interest and SUBSCRIBER or its successor-in-interest shall have the right to enforce any obligation or make any request under this Agreement. This Agreement will be binding upon the parties’ respective successors and permitted assigns.

(d). This Agreement constitutes the entire agreement between the parties with regards to the Technology, and supersedes all other prior or contemporaneous communications between the parties (whether written or oral) relating to the subject matter of this Agreement. This Agreement may be modified or amended solely in a writing signed by both parties.

(e). The provisions of this Agreement shall be deemed severable, and the unenforceability of any one or more provisions shall not affect the enforceability of any other provisions. In addition, if any provision of this Agreement, for any reason, is declared to be unenforceable, the parties shall substitute an enforceable provision that, to the maximum extent possible in accordance with applicable law, preserves the original intentions and economic positions of the parties.

(f). All taxes due to any governmental authority based on this Agreement are the responsibility of SUBSCRIBER.

(g). This Agreement is comprised of the present Subscription Agreement, the Order Form, and any written Addendum hereto that is dated and executed by SUBSCRIBER and GEMFIND. In the event of any inconsistency between the terms of the Order Form, the Subscription Agreement and an Addendum, then (i) the Addendum shall control, in order of the most recent Addendum; and (ii) thereafter the Order Form shall control.

(h). By signing and/or electronically acknowledging the Order Form, SUBSCRIBER represents and warrants that they have read and fully understand the terms and provisions of this agreement, have had an opportunity to review this Agreement with legal counsel, and have executed this Agreement based upon such party’s own judgment and advice of independent legal counsel (if sought).

GEMFIND WEBSITE DEVELOPMENT – TERMS AND CONDITIONS

The following “Terms and Conditions” define the agreement between you and GEMFIND with regards to the website development services to be performed by GEMFIND on your behalf. By signing the GEMFIND Order Form you acknowledge that you have read, understand, and agree to the terms below:

1. DEFINITIONS.
As used in this Agreement, the following terms have the following meanings:

(a). “Content” means all data, text, pictures, sound, graphics, logos, marks, symbols, video, and other materials supplied by CUSTOMER to GEMFIND under this Agreement, as such materials may be modified from time to time by the parties.

(b). “Development Fee(s)” means the fee(s) set forth in the Order Form for Development Services.

(c). “Development Services” means the website development services as described in Section 3 and the Order Form.

(d). “Domain Name” means the domain name specified for the Website by CUSTOMER from time to time.

(e). “Delivery Schedule” means the schedule for Development and related Services, as set forth in the Order Form.

(f). “Technology” means certain proprietary software, databases, and documentation which include products known separately as Diamond Link, Ring Builder, Stud Builder, Watch Builder, Pendant Builder, JewelCloud, and collectively as GEMFIND Technologies, as well as any future versions or extensions to GEMFIND Technologies, and any future proprietary software, databases, and documentation developed by GEMFIND, excluding: Open Source Software and derivative works thereof, GEMFIND Tools, and Work Product.

(g). “GEMFIND Tools” means any and all tools, both in object code and source code form, that GEMFIND has already developed or that GEMFIND independently develops or licenses from a third party, excluding, the Technology, Open Source Software, and any tools that GEMFIND creates as a deliverable under this Agreement. By way of example, GEMFIND Tools may include, without limitation, toolbars for maneuvering between pages, search engines, Java applets, and ActiveX controls. All GEMFIND Tools incorporated into or used in conjunction with the Website, or used to manipulate Content for distribution on the Website, shall be set forth in the Order Form or otherwise agreed to in writing by the parties.

(h). “Intellectual Property Rights” means, on a worldwide basis, any and all now known or hereafter known tangible and intangible (i) rights associated with works of authorship including, without limitation, copyrights, moral rights, and mask-works, (ii) trademark and trade name rights and similar rights, (iii) trade secret rights, (iv) patents, designs, algorithms, and other industrial property rights, (v) all other intellectual and industrial property rights of every kind and nature and however designated, whether arising by operation of law, contract, license, or otherwise, and (vi) all registrations, initial applications, renewals, extensions, continuations, divisions, or reissues thereof now or hereafter in force (including any rights in any of the foregoing).

(i). “Open Source Software” means any means any and all software, both in object code and source code form, that GEMFIND licenses from a third party under a license which allows that software to be freely used, modified, and shared, as well as any derivative works GEMFIND has created based on Open Source Software.

(j). “Services” means the Development Services.

(k). “Specifications” means CUSTOMER’s requirements set forth in the Order Form.

(l). “User Content” means all data, text, pictures, sound, graphics, logos, marks, symbols, video, and other materials provided by CUSTOMER Website users.

(m). “Website” means all software, tools, data, text, pictures, sound, graphics, logos, marks, symbols, video, and any other materials or information incorporated into pages under the Domain Name (including without limitation, Content, User Content, and Work Product), excluding GEMFIND Technology.

(n). “Work Product” means all HTML files, Java files, graphics files, animation files, data files, technology, scripts, and programs, both in object code and source code form (excluding Open Source Software), all documentation, and all other items and information, whether tangible or intangible and in whatever form or media, created by GEMFIND or any GEMFIND Personnel as a deliverable under the performance of this Agreement.

(o). “GEMFIND” means GEMFIND and Softech USA, Inc., a California corporation and the parent company of GEMFIND.

2. SERVICES
(a). SERVICES. GEMFIND shall provide to CUSTOMER the Services described herein, in accordance with the terms and conditions of this Agreement and the Order Form.

(b). GEMFIND TOOLS. If any GEMFIND Tools are incorporated into or are used in conjunction with the Website, or any GEMFIND Tools are used to manipulate Content for distribution on the Website, then GEMFIND hereby grants to CUSTOMER a worldwide, nonexclusive, royalty-free, fully paid-up license to use, such GEMFIND Tools on the Website until this Agreement is terminated under any of the provisions of Section 4 herein, at such point said license shall be revoked in its entirety.

(c). OPEN SOURCE SOFTWARE. CUSTOMER acknowledges that the Website may be built in part from and with Open Source Software, which may have restrictive provisions as to how it is licensed and distributed. If any Open Source Software or derivative works thereof are incorporated into or are used in conjunction with the Website, CUSTOMER is licensed to use said software under the same license by which GEMFIND is licensed to use or distribute said software.

The license for Magento software may be found here. http://www.magentocommerce.com/images/uploads/Magento_Enterprise_EULA.pdf The license for WordPress software may be found here. http://wordpress.org/about/gpl/

By agreeing to the terms and conditions herein, CUSTOMER acknowledges that they have read and agree to abide by the license agreement(s) for any Open Source software used on or in conjunction with the Website.

(d). INITIAL SEARCH ENGINE OPTIMIZATION (“SEO”). If provided for in the Order Form, GemFind will perform one-time, initial on-site SEO on web pages developed under this Agreement, to consist of creating meta tags, header tags, 301 re-directs, canonical URLs, and a Google Site Map. CUSTOMER acknowledges that these one-time Initial SEO services do not include any on-going SEO efforts or reporting either during Development or after Development is complete.

GemFind does not guarantee number one (1) positions, consistent positioning, “top 10 positions” or guaranteed placement for any particular keyword, phrase or search term. Customer acknowledges that GemFind’s past performance is not indicative of any future results Customer may experience.
Customer acknowledges that recognition and inclusion by search engines can take an indefinite amount of time, unless paid inclusion programs are available and employed. Each edit or change made to any resources employed by GemFind will repeat these inclusion times.
GemFind will not knowingly employ any “Black Hat” techniques in the provision of Search Engine Optimization services to Customer.

3. INITIAL WEBSITE DEVELOPMENT
(a). DELIVERY OF CONTENT. CUSTOMER shall deliver to GEMFIND all Content that CUSTOMER intends for GEMFIND to incorporate into the Website (the “Content”). The Content shall be in the format(s) specified in the Order Form. If CUSTOMER does not have Content related to static informational and educational pages, then CUSTOMER may use “Canned Content” as set forth in Section 8(c) of this agreement.

(b). DEVELOPMENT. For the Development Fee(s), GEMFIND shall provide the Development Services specified in and according to the Order Form.

(c). ACCEPTANCE. GEMFIND shall provide the CUSTOMER with the Development Services deliverables as specified in the Order Form for CUSTOMER’s review and acceptance according to the dates and under the terms and conditions set forth in this Agreement and in the Order Form. CUSTOMER shall review and evaluate the deliverables to assess whether they meet the applicable Specifications and either accept or reject the deliverables within the time period specified in the Order Form, or within seven (7) days if no time for acceptance is specified in the Order Form. CUSTOMER’s rejection of the deliverables shall not be arbitrary or unreasonable. Deliverables not rejected in writing within the longer of the time period specified in the Order Form or within seven (7) days shall be deemed accepted.

(d). REJECTION AND CURE. If CUSTOMER rejects any Website deliverables, in whole or in part, CUSTOMER shall allow GEMFIND no less than thirty (30) days to cure the rejection by providing corrected and revised deliverables for CUSTOMER’s acceptance in accordance with Section 3(c) of this Agreement. CUSTOMER shall review and evaluate any corrected or revised deliverables under the provisions of Section 3(c) of this Agreement.

4. TERM AND TERMINATION
(a). TERM. The term of this Agreement shall begin on the Effective Date and shall expire on CUSTOMER’s final acceptance and receipt of the CUSTOMER Website, unless and until otherwise terminated in accordance with Sections 4(b) or 4(c) of this Agreement.

(b). TERMINATION FOR CAUSE. Either party may terminate this Agreement at any time, on thirty (30) days’ prior written notice to the other party if such other party materially breaches any term or condition of this Agreement and fails to cure that breach during that thirty (30)-day period.

(c). TERMINATION FOR INSOLVENCY. Either party may terminate this Agreement at any time, on written notice to the other party, if such other party ceases to conduct business in its normal course; makes an assignment for the benefit of creditors; is liquidated or otherwise dissolved; becomes insolvent; is adjudicated bankrupt; or a receiver, trustee or custodian is appointed for it.

(d). PROHIBITED OR IMPRACTICAL SERVICES. GEMFIND may terminate this Agreement (i) if the Services are prohibited by applicable law, or become impractical or unfeasible for any technical, legal or regulatory reason, by giving CUSTOMER as much prior notice as reasonably practicable or (ii) immediately by giving written notice to CUSTOMER, if GEMFIND determines in good faith that CUSTOMER’S use of the CUSTOMER Web site or the CUSTOMER Content violates this Agreement.

(e). CONSEQUENCES OF EXPIRATION OR TERMINATION

(i) If GEMFIND terminates this Agreement under Section 4(b) or Section 4(c),

(a) GEMFIND shall be entitled to receive payment of all amounts then due and outstanding for Services performed under this Agreement through the effective date of termination, and
(b) Neither party shall be entitled to any further payment or other
compensation for such termination.

(ii) If this Agreement expires under Section 4(a) or if CUSTOMER terminates this Agreement under Section 4(b), 4(c), or 4(d): (i) GEMFIND shall be entitled to receive payment of all amounts then due and outstanding for Services performed under this Agreement through the effective date of termination. (ii) GEMFIND shall, at the request of CUSTOMER, download a copy of all Content as well as Work Product completed to that date, expressly excluding the Tools, the Technology, and any data provided through the Technology, to a reasonable medium of CUSTOMER’s choosing and deliver such materials to CUSTOMER within five (5) business days after GEMFIND receives all payments due under this Agreement, , (iv) neither party shall be entitled to any further payment or other compensation for such termination.

(iii) In addition, without limiting the applicability the above, if this Agreement expires under Section 4(a), GEMFIND shall, at the request of CUSTOMER, download a copy of all Content as well as Work Product, expressly excluding the Tools, the Technology, and any data provided through the Technology, to a reasonable medium of CUSTOMER’s choosing and deliver such materials to CUSTOMER within five (5) business days after GEMFIND receives all payments due under this Agreement.

5. DISCLAIMER OF WARRANTIES.
EXCEPT AS SET FORTH IN SECTIONS 6(a), 6(b), and 6(c), AND SECTION 8 BELOW, EACH PARTY EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.

6. OWNERSHIP.
(a). OWNERSHIP OF WORK PRODUCT. The Work Product is and shall remain the sole and exclusive property of CUSTOMER, and CUSTOMER shall retain all Intellectual Property Rights therein. If GEMFIND is deemed to retain any Intellectual Property Rights in any Work Product under applicable law, GEMFIND hereby irrevocably assigns to CUSTOMER all such Intellectual Property Rights. If GEMFIND has any such Intellectual Property Rights that cannot be assigned to CUSTOMER under applicable law, GEMFIND waives the enforcement thereof. If GEMFIND has any such Intellectual Property Rights that cannot be assigned or waived under applicable law, GEMFIND hereby grants to CUSTOMER an exclusive, worldwide, assignable, royalty-free, perpetual, irrevocable, fully paid-up license to use and publicly display such Work Product.

(b). OWNERSHIP OF CONTENT AND WEBSITE. All Content and User Content shall at all times remain the sole and exclusive property of CUSTOMER or its licensors, which shall retain all Intellectual Property Rights therein. GEMFIND shall have no rights in such Content or User Content, other than the limited right to use it for the purposes expressly set forth in this Agreement.

7. NONDISCLOSURE & NON-DISPARGEMENT
(a). “Confidential Information” means any and all information, which is of a confidential, proprietary or trade secret nature that is furnished or disclosed by one party to the other party under this Agreement. Without limiting the generality of the foregoing, Confidential Information includes the specific business terms of this Agreement and any other information that is marked as “Confidential,” “Proprietary,” “Trade Secret,” or in some other manner to indicate its confidential, proprietary or trade secret nature.

(b). Confidential Information will remain the property of the disclosing party, and the other party will not be deemed by virtue of its access to the other party’s Confidential Information to have acquired any right or interest in or to any such Confidential Information, other than as specifically set forth herein. The receiving party agrees: (i) to hold the Confidential Information in strict confidence; (ii) to limit disclosure of the Confidential Information to the receiving party’s own employees, agents or authorized consultants having a need to know the Confidential Information for the purposes of this Agreement; (iii) not to disclose any Confidential Information to any third party; (iv) to use the Confidential Information solely and exclusively in accordance with the terms of this Agreement in order to carry out its obligations and exercise its rights under this Agreement; and (v) to notify the disclosing party promptly of any unauthorized use or disclosure of the Confidential Information and to cooperate with and assist the disclosing party in every reasonable way to stop or minimize such unauthorized use or disclosure.

(c). The obligations of either party under this Section 7 will not apply to information that the receiving party can demonstrate (i) at the time of disclosure is generally available to the public or after disclosure becomes generally available to the public through no breach of agreement or other wrongful act by the receiving party; (ii) is independently developed by the receiving party without regard to the Confidential Information of the other party; or (iii) is required to be disclosed by law or order of a court of competent jurisdiction or regulatory authority, provided that the receiving party shall attempt to furnish prompt written notice of such required disclosure and reasonably cooperate with the disclosing party, at the disclosing party’s expense, in any effort made by the disclosing party to seek a protective order or other appropriate protection of its Confidential Information.

(d). The receiving party agrees that if a court of competent jurisdiction determines that the receiving party has breached, or attempted or threatened to breach, its confidentiality obligations to the disclosing party or the disclosing party’s proprietary rights, the disclosing party will be entitled to obtain appropriate injunctive relief and other measures restraining further attempted or threatened breaches of such obligations. Such relief or measures shall be in addition to, and not in lieu of, any other rights and remedies available to the disclosing party.

(e) Non-Dispargement. The Parties agree not to make any statements, written or verbal, or cause or encourage others to make any statements, written or verbal, that defame, disparage or in any way criticize the personal or business reputation, practices, or conduct of Defendant, its employees, directors, and officers. The Parties acknowledge and agree that this prohibition extends to statements, written or verbal, made to anyone, including but not limited to, the news media, investors, potential investors, any board of directors or advisory board or directors, industry analysts, competitors, strategic partners, vendors, employees (past and present), and clients. The Parties understand and agree that this Paragraph is a material provision of this Agreement and that any breach of this Paragraph shall be a material breach of this Agreement, and that each Party would be irreparably harmed by violation of this provision.

8. GEMFIND WARRANTIES AND REMEDIES FOR BREACH OF WARRANTY
(a). GEMFIND DOES NOT GUARANTEE THAT THE WEBSITE WILL OPERATE WITH CONTINUOUS SERVICE, OR GUARANTEE THE INTEGRITY OF DATA, INFORMATION, OR CONTENT STORED ON OR TRANSMITTED VIA THE WEBSITE. EXCEPT AS MAY BE DUE TO GEMFIND’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, GEMFIND WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION OR INADVERTENT DISCLOSURE OF, DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED ON OR VIA THE WEBSITE.

(b). WORK PRODUCT and TOOL WARRANTIES. GEMFIND represents and warrants to CUSTOMER that no Work Product, GEMFIND Tools, or GEMFIND-made changes to any Content or User Content shall (a) infringe on the Intellectual Property Rights of any third party or any rights of publicity or privacy.

(c). ADDITIONAL WARRANTIES. GEMFIND represents and warrants to CUSTOMER that the Website and all Work Product shall conform to CUSTOMER’s Specifications.

(d). GEMFIND does not warrant the Website against claims of infringement caused by: (i) modifications to the Website or any portion of it by anyone other than GEMFIND or its authorized agents and contractors; or (ii) CUSTOMER’S failure to use any new or corrected versions of the Website or documentation made available by GEMFIND.

(e). Each party warrants to the other that it shall perform its responsibilities and exercise its rights under this Agreement in a manner that does not infringe, or constitute an infringement or misappropriation of, any U.S. patent, copyright, trademark, trade secret or other proprietary rights of any third party.

9. CUSTOMER’S REPRESENATIONS AND WARRANTIES
(a). CUSTOMER hereby represents and warrants to GEMFIND, and agrees CUSTOMER will ensure that:
(i). CUSTOMER is the owner or valid licensee of the Content and each element thereof, and CUSTOMER has secured all necessary licenses, consents, permissions, waivers and releases for the use of the Content and each element thereof, including without limitation, all trademarks, logos, names and likenesses contained therein, without any obligation by GEMFIND to pay any fees, residuals, guild payments or other compensation of any kind to any Person;

(ii). CUSTOMER’s use, publication and display of the Content will not infringe any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any Person, or constitute a defamation, invasion of privacy or violation of any right of publicity or any other right of any Person, including, without limitation, any contractual, statutory or common law right or any “moral right” or similar right however denominated;

(iii). CUSTOMER assumes full responsibility for providing End Users with any required disclosure or explanation of the various features of the Website and any goods or services described therein, as well as any rules, terms or conditions of use.

(b). CUSTOMER hereby grants to GEMFIND a non-exclusive, royalty-free, worldwide right and license during the Term to do the following to the extent necessary in the provision of the Website under the Order Form: (i) digitize, convert, install, upload, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, distribute, publish, publicly display, publicly perform and hyperlink the Content; and (ii) make archival or back-up copies of the Content. Except for the rights expressly granted above, GEMFIND is not acquiring any right, title or interest in or to the Content, all of which shall remain solely with CUSTOMER.

(c). Canned Content Notification. CUSTOMER agrees to accept “Canned Content” provided by GEMFIND as a starting point for the website development project. Canned Content by definition is duplicative content and will be designated as “No Follow” so it will not indexed by search Engines or will be linked to a designated industry organizations who sponsors the content module (if appropriate). CUSTOMER is highly encouraged to provide original content in order to improve search engine rankings. CUSTOMER will be trained during the course of the website development on how to add original content and/or update the Canned Content in order to improve search engine rankings. CUSTOMER Delays in providing original content shall in no way be considered an excuse to delay the website from going live, and shall be subject to the Delay Penalty in Section 8(d)(ii) below.

(d). CUSTOMER Delays. CUSTOMER recognizes that GEMFIND allocates significant internal resources to ensure websites are delivered on time and on budget. CUSTOMER will cooperate fully with GEMFIND in connection with GEMFIND’S performance of the Services. Delays in CUSTOMER’S performance of its obligations under this Agreement waste GEMFIND internal resources and may result in budget overrun at the hourly rate listed in the Order Form. The following delays may, at GEMFIND’s discretion, result in a Delay Penalty as follows:

(i) if the website is in the Design Phase and the CUSTOMER is not being non responsive:
(a) a Delay Penalty of $250 will be assessed after the 3rd attempt at eliciting a response;
(b) a Delay Penalty of $1,500 will be assessed and the balance of any outstanding payments shall become immediately due and payable, if the CUSTOMER is non responsive for 30 days.
(ii) if the website is in Pre-Launch Beta mode, and CUSTOMER is non responsive for 7 days, the balance of all outstanding Payments shall become immediately due and payable, and the monthly hosting and license fees shall immediately commence.

10. INDEMNIFCATION
(a). If a third party brings an action against one party (the “Indemnitee”) that constitutes a breach of this warranty by the other party (the “Indemnitor”), then the Indemnitor will, at its own expense, settle the claim or defend the Indemnitee in such proceeding and the Indemnitor will pay all settlements, costs, damages and legal fees and expenses finally awarded provided that the Indemnitee promptly notifies the Indemnitor in writing of the proceeding, provides the Indemnitor a copy of all information received by the Indemnitee with respect to the proceeding, cooperates with the Indemnitor in defending or settling the proceeding, and allows the Indemnitor to control the defense and settlement of the proceeding, including the selection of attorneys. The Indemnitee may observe the proceeding at its own expense.

(b). If such a proceeding alleging an infringement by GEMFIND is brought against GEMFIND or CUSTOMER or appears to GEMFIND to be likely to be brought, GEMFIND may, at its sole option and expense, (i) obtain the right for CUSTOMER to continue using the allegedly infringing item(s), (ii) replace or modify the item(s) to resolve such proceeding or (iii) upon notice to CUSTOMER, terminate this Agreement provided that GEMFIND promptly refunds to CUSTOMER the pro-rata portion of any fees pre-paid by CUSTOMER. This Section 9(b) states each party’s entire obligation to the other party and such other party’s sole remedy with respect to any claim of infringement.

(c). THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND TITLE, AND ANY AND ALL IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.

11. LIMITATION OF LIABILITY
(a). If CUSTOMER should become entitled to claim damages from GEMFIND (including without limitation, for breach of contract, breach of warranty, negligence or other tort claim), then except as specifically provided herein to the contrary, GEMFIND’ liability hereunder will be limited as follows:

(i). GEMFIND’s liability to CUSTOMER for any recoverable losses or damages arising under or in connection with this Agreement shall be limited to an amount equal to the fees paid by CUSTOMER for the Development Services in the past six (6) calendar months.

(b). In no event will GEMFIND or any person or entity involved in the creation, manufacture or distribution of any software, Technologies, or the Services provided under this Agreement be liable for: (i) any damages caused by CUSTOMER or any person or entity acting in concert with CUSTOMER or controlled by or controlling CUSTOMER; (ii) any claims or demands of third party; or (iii) any lost profits, loss of business, loss of use, lost savings or other consequential, special, incidental, indirect, exemplary or punitive damages.

(c). The limitations in Section 10(a) do not apply to claims by CUSTOMER for reimbursement for personal injury or property damage caused by GEMFIND’s gross negligence. The limitations of liability set forth in this Section 10 will survive and apply notwithstanding the failure of any limited or exclusive remedy for breach of warranty set forth in this Agreement.

12. LAW AND DISPUTES
(a). Governing Law; Jurisdiction. Any controversy or claim arising out of or relating to this Agreement, the formation of this Agreement or the breach of this Agreement, including any claim based upon arising from an alleged tort, shall be governed by the substantive laws of the State of California, except that all arbitration and related proceedings conducted pursuant to Section 11(c) below, including without limitation confirmation proceedings, shall be governed by the Commercial Rules of the American Arbitration Association.

(b)ANY SUIT, ACTION OR PROCEEDING CONCERNING THIS AGREEMENT THAT IS NOT SUBJECT TO MANDATORY ARBITRATION PURSUANT TO SECTION 11(c) BELOW MUST BE BROUGHT IN A CALIFORNIA STATE OR FEDERAL COURT LOCATED IN ORANGE COUNTY, CALIFORNIA, AND EACH OF THE PARTIES HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS (AND OF THE APPROPRIATE APPELLATE COURTS THEREFROM) IN ANY SUCH SUIT, ACTION OR PROCEEDING AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT ANY SUCH SUIT, ACTION OR PROCEEDING WHICH IS BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

(c). Mandatory Arbitration. Notwithstanding the above, each party agrees that any dispute between the parties arising out of this Agreement or in any manner relating to the Services must be submitted by the parties to arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, as administered by a recognized provider of arbitration services agreed upon by both parties, before a single arbitrator, appointed in accordance with such rules. Judgment upon the award may be entered in any court having jurisdiction thereof. Any such arbitration will be held in Orange County, California. Any action filed by either party in any court in violation of this Section should be dismissed pursuant to this Section.

(d). The parties expressly agree that any provision for costs, fees, and expenses in this agreement shall be unilateral in favor of GEMFIND, and shall not create or imply any right of CUSTOMER to recover costs, fees, or expenses under any action relating to this agreement.

13. GENERAL
(a). Independent Contractor. GEMFIND and CUSTOMER are independent contractors and nothing contained in this Agreement places GEMFIND and CUSTOMER in the relationship of principal and agent, master and servant, partners or joint venturers. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.

(b). Any notice or other communication required or permitted to be made or given by either party pursuant to this Agreement will be in writing, in English, and will be deemed to have been duly given: (i) five (5) business days after the date of mailing if sent by registered or certified U.S. mail, postage prepaid, with return receipt requested; (ii) when delivered if delivered personally or (iii) one business day after being sent by express courier services. All notices will be sent to the other party at its address as set forth on the Order Form or at such other address as such party will have specified in a notice given in accordance with this section.

(c). Neither party may assign this Agreement without the prior written consent of the other. Any purported assignment in violation of the preceding sentence will be void and of no effect. Notwithstanding the foregoing, either party may assign this Agreement and/or any of its rights, licenses and/or obligations hereunder, upon written notice to the other party and without such other party’s consent, to any of such other party’s affiliates or subsidiaries, or in connection with a merger, sale or reorganization of such other party or due to change of control of such other party or of a business unit, division or line of business of such other party; provided, however, that the assigning party shall at all times continue to be responsible for all obligations hereunder, including those undertaken by the assignee; and provided further, that in the case of an assignment permitted by this Section 13(c), only GEMFIND or its successor-in-interest and CUSTOMER or its successor-in-interest shall have the right to enforce any obligation or make any request under this Agreement. This Agreement will be binding upon the parties’ respective successors and permitted assigns.

(d). This Agreement and the Order Form constitute the entire agreement between the parties with regards to the subject matter of this Agreement, and supersede all other prior or contemporaneous communications between the parties (whether written or oral) relating to the subject matter of this Agreement. This Agreement may be modified or amended solely in a writing signed by both parties.

(e). The provisions of this Agreement shall be deemed severable, and the unenforceability of any one or more provisions shall not affect the enforceability of any other provisions. In addition, if any provision of this Agreement, for any reason, is declared to be unenforceable, the parties shall substitute an enforceable provision that, to the maximum extent possible in accordance with applicable law, preserves the original intentions and economic positions of the parties.

(f). All taxes due to any governmental authority based on this Agreement are the responsibility of CUSTOMER.

(g). This Agreement is comprised of the present Agreement, the Order Form, and any written Addendum hereto that is dated and executed by CUSTOMER and GEMFIND. In the event of any inconsistency between the terms of the Order Form, this Agreement, and an Addendum, then (i) the Addendum shall control, in order of the most recent Addendum; and (ii) thereafter the Order Form shall control.

(h). 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.

(i) 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.

(j). 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.

(k). 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.

(l). 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.

(m) 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.

(n). 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.

(o). Non-Solicitation. CUSTOMER shall not, directly or indirectly, hire, solicit, encourage to leave his or her employment, engage as a contractor, or cause others to directly or indirectly hire, solicit, encourage to leave his or her employment, or engage as a contractor, any employee, contractor, or sub-contractor of GEMFIND, or any person employed, contracted or subcontracted by GEMFIND within the two years preceding the effective date of this agreement.

By signing the Order Form or executing the electronic order form, CUSTOMER represents and warrants that they have read and fully understand the terms and provisions of this agreement, have had an opportunity to review this Agreement with legal counsel, and have executed this Agreement based upon such party’s own judgment and advice of independent legal counsel (if sought).

GEMFIND WEBSITE HOSTING – TERMS AND CONDITIONS

The following “Terms and Conditions” define the agreement between you and GemFind with regards to the website hosting services to be provided by GemFind on your behalf. By signing the GemFind Order Form you acknowledge that you have read, understand, and agree to the terms and conditions below:

1. DEFINITIONS.
As used in this Agreement, the following terms have the following meanings:
(a). “Customer Content” means all data, text, pictures, sound, graphics, logos, marks, symbols, video, and other materials supplied by Customer to Host pursuant to this Agreement, as such materials may be modified from time to time.

(b). “Domain Name” means, collectively, the domain name or names specified for the Website by Customer from time to time.

(c). “Host” means GemFind.

(d). “Host Facility” means the Internet-based data center and network where the Website is stored and served.

(e). “Services” means the website hosting services provided by Host to Customer hereunder, as described in Section 3.1 below.

(f). “Term” has the meaning ascribed to it in Section 2(a), below.

(g). “Website” means, collectively, all websites hosted by Host for Customer in the configuration and according to the terms contained in the Agreement.

2. ORDER FORM, ACCEPTANCE, AND SERVICE.
(a). When Accepted by GemFind (hereinafter “GF”), an online and/or written Order Form submitted by CUSTOMER creates a contract between CUSTOMER and GF, consisting of the Order Form and applicable description of services and these Website Hosting Terms & Conditions of service. An Order Form is “Accepted” by GF when we provide Services in response to the Order Form or bill CUSTOMER for payment. GF will provide, and CUSTOMER will purchase and pay for, the Services specified in the Order Form for the service fees specified in the Order Form (the “Service Fees”).

3. FEES AND PAYMENTS.
(a). CUSTOMER will pay to GF the Service Fees in the manner set forth in the Order Form. GF may increase the Service Fees in the manner permitted in the Order Form. All fees are fully earned when due and non-refundable when paid. Unless otherwise specified, invoices for the Service Fees and related charges shall be due and payable within 15 days after the date of the invoice. If any invoice is not paid within 30 days after the date of the invoice, GF may charge CUSTOMER a late fee of $25 for such invoice; in addition any amounts payable to GF not paid when due will bear interest at the rate of one and one half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less.

(b). If any CUSTOMER payment – including credit card transactions – is returned for insufficient funds or any other reason – GF will impose a processing charge of $25. Delinquent accounts may be suspended at GF’S sole discretion.

(c). In the event of a suspension of the Services, upon a reactivation request by CUSTOMER, CUSTOMER shall pay GF a reactivation fee as defined in the Order Form, in addition to full payment of the outstanding balance due.

(d). If GF collects any payment due at law or through an attorney at law or under advice therefrom or through a collection agency, or if GF prevails in any action to which the CUSTOMER and GF are parties, CUSTOMER will pay all costs of collection, arbitration and litigation, including, without limitation, all court costs and GF’S reasonable attorneys’ fees.

4. TERM AND TERMINATION.
(a). Hosting Services will commence on the earlier of the date the website goes live or as indicated in the Order Form and continue for the duration of the Initial Term indicated on the Order Form. Thereafter, the Term will automatically renew for successive periods of the Initial Term unless either party gives written notice to the other party of non-renewal at least 30 days prior to expiration of the then-current term.

(b). Either party may terminate this Agreement immediately upon the occurrence of any one or more of the following events: (i) the other party fails to pay when due any amounts required to be paid under this Agreement; (ii) the other party breaches any material term or provision of this Agreement (other than a breach described in subsection (i) above), and if capable of cure, such breach remains uncured 30 days after the non-breaching party gives written notice thereof to the breaching party; or (iii) the other party becomes insolvent, makes an assignment for the benefit of its creditors, institutes or becomes subject to any proceeding under any bankruptcy or similar laws for the relief of debtors, or seeks the appointment of, or becomes subject to the appoint of, any trustee or receiver for all or any portion of such party’s assets.

(c). GF may terminate this Agreement (i) if the Services are prohibited by applicable law, or become impractical or unfeasible for any technical, legal or regulatory reason, by giving CUSTOMER as much prior notice as reasonably practicable or (ii) immediately by giving written notice to CUSTOMER, if GF determines in good faith that CUSTOMER’S use of the Services or the CUSTOMER Content violates this Agreement.

(d). Upon termination of this Agreement for any cause or reason whatsoever, neither party shall have any further rights or obligations under this Agreement, except as expressly set forth herein. All provisions of this Agreement which call for obligations by other party subsequent to the termination of this Agreement shall survive the expiration or termination of this Agreement for any cause or reason whatsoever, and, notwithstanding the expiration or termination of this Agreement, the parties shall each remain liable to the other for any indebtedness or other liability theretofore arising under this Agreement. Termination of this Agreement and retention of pre-paid fees and charges shall be in addition to, and not be in lieu of, any other legal or equitable rights or remedies to which GF may be entitled.

(e). Customer acknowledges that GemFind has been induced to enter into and/or renew this Agreement on the terms granted by Customer’s promise to perform their obligations for the entire term of the Agreement and for the entire term of any renewal periods.
Within 30 days after the termination of this Agreement, CUSTOMER will pay GF an amount equal to the lesser of the cost of three (3) months of the Services for which the Customer has contracted under this Agreement or the cost of the remaining months of Services under the term of this Agreement and any renewal thereof (the “Termination Fee”) unless: (i) GF or CUSTOMER terminated under Section 4 (a), (ii) GF terminated under Section 4(c)(i), or (iii) CUSTOMER terminated under Section 4 (b).
The parties agree that the Termination Fee constitutes consideration for GF’s time, effort and expense in preparing and reserving the capacity to perform its obligations hereunder, as actual damages are difficult to ascertain.
If CUSTOMER terminates the Agreement in accordance with Section 4(b), or if GF terminates the Agreement under Sections 4(c)(i), GF shall return to CUSTOMER, and CUSTOMER shall accept, as CUSTOMER’S sole and exclusive remedy for GF’S breach of the Agreement, any Service Fees paid in advance by CUSTOMER hereunder attributable to Services not yet rendered as of the date of termination.

5. CUSTOMER’S REPRESENTATIONS AND WARRANTIES
(a). CUSTOMER hereby represents and warrants to GF, and agrees that during the Term CUSTOMER will ensure that:

(i) CUSTOMER is the owner or valid licensee of the CUSTOMER Content and each element thereof, and CUSTOMER has secured all necessary licenses, consents, permissions, waivers and releases for the use of the CUSTOMER Content and each element thereof, including without limitation, all trademarks, logos, names and likenesses contained therein, without any obligation by GF to pay any fees, residuals, guild payments or other compensation of any kind to any Person;
(ii) CUSTOMER’S use, publication and display of the CUSTOMER Content will not infringe any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any Person, or constitute a defamation, invasion of privacy or violation of any right of publicity or any other right of any Person, including, without limitation, any contractual, statutory or common law right or any “moral right” or similar right however denominated;
(iii) CUSTOMER will comply with all applicable laws, rules and regulations regarding the CUSTOMER Content and the CUSTOMER Web site and will use the CUSTOMER Web site only for lawful purposes;
(iv) CUSTOMER has used its best efforts to ensure that the CUSTOMER Content is and will at all times remain free of all computer viruses, worms, trojan horses and other malicious code; and
(v) CUSTOMER will use the Services only for business purposes and not for any family, household or personal use.

6. GF’S LIMITED WARRANTY.
(a). GF DOES NOT GUARANTEE THAT THE WEBSITE WILL OPERATE WITH CONTINUOUS SERVICE, OR GUARANTEE THE INTEGRITY OF DATA, INFORMATION, OR CONTENT STORED ON OR TRANSMITTED VIA THE WEBSITE. EXCEPT AS MAY BE DUE TO GF’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, GF WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION OR INADVERTENT DISCLOSURE OF, DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED ON OR VIA THE WEBSITE.

(b). GF represents and warrants to CUSTOMER that the Services will be provided (i) in a manner consistent with industry standards reasonably applicable to the provision thereof; (ii) at least at the same level of service as provided by GF generally to its other customers for the same services; and (iii) in compliance in all material respects with the applicable Order Form. CUSTOMER will be deemed to have accepted such Services unless CUSTOMER notifies GF within 30 days of any breach of the foregoing warranties. CUSTOMER’S sole and exclusive remedy, and GF’S sole obligation, for breach of the foregoing warranties shall be for GF, at its option issue CUSTOMER a credit in an amount equal to the current monthly Service Fees pro rated by the number of hours in which the Services have been interrupted. GF may provision the Services from any of its data centers and may from time to time re-provision the Services from different data centers.

(c). The foregoing warranties shall not apply to performance issues or defects in the Services (i) caused by factors outside of GF’S reasonable control; (ii) that resulted from any actions or inactions of CUSTOMER or any third parties; or (iii) that resulted from CUSTOMER’S equipment or any third-party equipment not within the sole control of GF.

(d). THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND TITLE, AND ANY AND ALL IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 6 OR AS MODIFIED BY ADDENDUM, GF MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR ANY SOFTWARE PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND GF HEREBY EXPRESSLY DISCLAIMS THE SAME. WITHOUT LIMITING THE FOREGOING, ANY THIRD-PARTY SOFTWARE PROVIDED TO CUSTOMER HEREUNDER IS PROVIDED “AS IS” WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER.

7. RESPONSIBILITIES OF THE PARTIES
(a). RESPONSIBILITIES OF GF. Commencing on the Effective Date, or such later date as the parties may agree in writing, GF shall host the Website and install and maintain the equipment by which the Website is being operated, all as more fully described as follows:

(i) Hosting Services: GF shall be solely responsible, at GF’s expense, for acquiring, handling, maintaining, and executing any agreements for all equipment, third party services and third party software necessary to host the Website and perform all related services hereunder.

(ii) Website Capacity. GF shall provide sufficient hosting capacity to achieve or exceed uptime of 99%. Customer agrees to use reasonable efforts to cooperate with GF to forecast and anticipate increases in Website traffic due to marketing events or other special circumstances that could change the rate of Website usage typically observed under normal Website operation.

(b). RESPONSIBILITIES OF CUSTOMER
(i) Internet Access. Customer shall be responsible for establishing its own Internet access for Customer’s interaction with the Website, and for uploading and downloading Customer Content.

(ii) License Grant. Customer hereby grants to GF a worldwide, nonexclusive, nonsublicensable, nontransferable, royalty-free license during the Term (and for any period after termination during which GF continues to host the Website under this Agreement) to reproduce, distribute, publicly perform, publicly display, and digitally perform the Customer Content and User Content for the sole purpose of providing Hosting Services hereunder. Customer shall own and retain all right, title, and interest in and to the Customer Content and User Content (including, without limitation, any modifications thereto made by GF), and GF shall obtain no other right, title, or interest in the Customer Content and User Content except for the foregoing license.

8. NONDISCLOSURE NON-DISPARGEMENT.
(a). “Confidential Information” means any and all information, which is of a confidential, proprietary or trade secret nature that is furnished or disclosed by one party to the other party under this Agreement. Without limiting the generality of the foregoing, Confidential Information includes the specific business terms of this Agreement and any other information that is marked as “Confidential,” “Proprietary,” “Trade Secret,” or in some other manner to indicate its confidential, proprietary or trade secret nature.

(b). Confidential Information will remain the property of the disclosing party, and the other party will not be deemed by virtue of its access to the other party’s Confidential Information to have acquired any right or interest in or to any such Confidential Information, other than as specifically set forth herein. The receiving party agrees: (i) to hold the Confidential Information in strict confidence; (ii) to limit disclosure of the Confidential Information to the receiving party’s own employees, agents or authorized consultants having a need to know the Confidential Information for the purposes of this Agreement; (iii) not to disclose any Confidential Information to any third party; (iv) to use the Confidential Information solely and exclusively in accordance with the terms of this Agreement in order to carry out its obligations and exercise its rights under this Agreement; and (v) to notify the disclosing party promptly of any unauthorized use or disclosure of the Confidential Information and to cooperate with and assist the disclosing party in every reasonable way to stop or minimize such unauthorized use or disclosure.

(c). The obligations of either party under this Section 8 will not apply to information that the receiving party can demonstrate (i) at the time of disclosure is generally available to the public or after disclosure becomes generally available to the public through no breach of agreement or other wrongful act by the receiving party; (ii) is independently developed by the receiving party without regard to the Confidential Information of the other party; or (iii) is required to be disclosed by law or order of a court of competent jurisdiction or regulatory authority, provided that the receiving party shall attempt to furnish prompt written notice of such required disclosure and reasonably cooperate with the disclosing party, at the disclosing party’s expense, in any effort made by the disclosing party to seek a protective order or other appropriate protection of its Confidential Information.

(d). The receiving party agrees that if a court of competent jurisdiction determines that the receiving party has breached, or attempted or threatened to breach, its confidentiality obligations to the disclosing party or the disclosing party’s proprietary rights, the disclosing party will be entitled to obtain appropriate injunctive relief and other measures restraining further attempted or threatened breaches of such obligations. Such relief or measures shall be in addition to, and not in lieu of, any other rights and remedies available to the disclosing party.

(e) Non-Disparagement. The Parties agree not to make any statements, written or verbal, or cause or encourage others to make any statements, written or verbal, that defame, disparage or in any way criticize the personal or business reputation, practices, or conduct of the other Party, its employees, directors, and officers. The Parties acknowledge and agree that this prohibition extends to statements, written or verbal, made to anyone, including but not limited to, the news media, investors, potential investors, any board of directors or advisory board or directors, industry analysts, competitors, strategic partners, vendors, employees (past and present), and clients. The Parties understand and agree that this Paragraph is a material provision of this Agreement and that any breach of this Paragraph shall be a material breach of this Agreement, and that each Party would be irreparably harmed by violation of this provision.

9. INDEMNIFCATION.
(a). If a third party brings an action against one party (the “Indemnitee”) that constitutes a breach of this warranty by the other party (the “Indemnitor”), then the Indemnitor will, at its own expense, settle the claim or defend the Indemnitee in such proceeding and the Indemnitor will pay all settlements, costs, damages and legal fees and expenses finally awarded provided that the Indemnitee promptly notifies the Indemnitor in writing of the proceeding, provides the Indemnitor a copy of all information received by the Indemnitee with respect to the proceeding, cooperates with the Indemnitor in defending or settling the proceeding, and allows the Indemnitor to control the defense and settlement of the proceeding, including the selection of attorneys. The Indemnitee may observe the proceeding at its own expense.

(b). If such a proceeding alleging an infringement by GF is brought against GF or CUSTOMER or appears to GF to be likely to be brought, GF may, at its sole option and expense, (i) obtain the right for CUSTOMER to continue using the allegedly infringing item(s), (ii) replace or modify the item(s) to resolve such proceeding or (iii) upon notice to CUSTOMER, terminate this Agreement provided that GF promptly refunds to CUSTOMER the prorata portion of any fees pre-paid by CUSTOMER. This Section 9(b) states each party’s entire obligation to the other party and such other party’s sole remedy with respect to any claim of infringement.

10. LIMITATION OF LIABILITY
(a). If CUSTOMER should become entitled to claim damages from GF (including without limitation, for breach of contract, breach of warranty, negligence or other tort claim), then except as specifically provided herein to the contrary, GF’ liability hereunder will be limited as follows:

(i). GF’s liability to CUSTOMER for any recoverable losses or damages arising under or in connection with this Agreement shall be limited to an amount equal to the fees paid by CUSTOMER for the Services in the past six (6) calendar months.

(b). In no event will GF or any person or entity involved in the provision of Services under this Agreement be liable for: (i) any damages caused by CUSTOMER or any person or entity acting in concert with CUSTOMER or controlled by or controlling CUSTOMER; (ii) any claims or demands of third party; or (iii) any lost profits, loss of business, loss of use, lost savings or other consequential, special, incidental, indirect, exemplary or punitive damages.

(c). The limitations in Section 10(a) do not apply to claims by CUSTOMER for reimbursement for personal injury or property damage caused by GF’s gross negligence. The limitations of liability set forth in this Section 10 will survive and apply notwithstanding the failure of any limited or exclusive remedy for breach of warranty set forth in this Agreement.

11. LAW AND DISPUTES
(a). Governing Law; Jurisdiction. Any controversy or claim arising out of or relating to this Agreement, the formation of this Agreement or the breach of this Agreement, including any claim based upon arising from an alleged tort, shall be governed by the substantive laws of the State of California, except that all arbitration and related proceedings conducted pursuant to Section 11(c) below, including without limitation confirmation proceedings, shall be governed by the Commercial Rules of the American Arbitration Association.

(b). ANY SUIT, ACTION OR PROCEEDING CONCERNING THIS AGREEMENT THAT IS NOT SUBJECT TO MANDATORY ARBITRATION PURSUANT TO SECTION 11(c) BELOW MUST BE BROUGHT IN A CALIFORNIA STATE OR FEDERAL COURT LOCATED IN ORANGE COUNTY, CALIFORNIA, AND EACH OF THE PARTIES HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS (AND OF THE APPROPRIATE APPELLATE COURTS THEREFROM) IN ANY SUCH SUIT, ACTION OR PROCEEDING AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT ANY SUCH SUIT, ACTION OR PROCEEDING WHICH IS BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

(c). Mandatory Arbitration. Notwithstanding the above, each party agrees that any dispute between the parties arising out of this Agreement or in any manner relating to the Services must be submitted by the parties to arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, as administered by a recognized provider of arbitration services agreed upon by both parties, before a single arbitrator, appointed in accordance with such rules. Judgment upon the award may be entered in any court having jurisdiction thereof. Any such arbitration will be held in Orange County, California. Any action filed by either party in any court in violation of this Section should be dismissed pursuant to this Section.

(d). The parties expressly agree that any provision for costs, fees, and expenses in this agreement shall be unilateral in favor of GF, and shall not create or imply any right of CUSTOMER to recover costs, fees, or expenses under any action relating to this agreement.

12. GENERAL
(a). Independent Contractor. GF and CUSTOMER are independent contractors and nothing contained in this Agreement places GF and CUSTOMER in the relationship of principal and agent, master and servant, partners or joint venturers. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.

(b). Any notice or other communication required or permitted to be made or given by either party pursuant to this Agreement will be in writing, in English, and will be deemed to have been duly given: (i) five (5) business days after the date of mailing if sent by registered or certified U.S. mail, postage prepaid, with return receipt requested; (ii) when delivered if delivered personally or (iii) one business day after being sent by express courier services. All notices will be sent to the other party at its address as set forth on the Order Form or at such other address as such party will have specified in a notice given in accordance with this section.

(c). Neither party may assign this Agreement without the prior written consent of the other. Any purported assignment in violation of the preceding sentence will be void and of no effect. Notwithstanding the foregoing, either party may assign this Agreement and/or any of its rights, licenses and/or obligations hereunder, upon written notice to the other party and without such other party’s consent, to any of such other party’s affiliates or subsidiaries, or in connection with a merger, sale or reorganization of such other party or due to change of control of such other party or of a business unit, division or line of business of such other party; provided, however, that the assigning party shall at all times continue to be responsible for all obligations hereunder, including those undertaken by the assignee; and provided further, that in the case of an assignment permitted by this Section 12(c), only GF or its successor-in-interest and CUSTOMER or its successor-in-interest shall have the right to enforce any obligation or make any request under this Agreement. This Agreement will be binding upon the parties’ respective successors and permitted assigns.

(d). This Agreement and the Order Form constitute the entire agreement between the parties with regards to the subject matter of this Agreement, and supersede all other prior or contemporaneous communications between the parties (whether written or oral) relating to the subject matter of this Agreement. This Agreement may be modified or amended solely in a writing signed by both parties.

(e). The provisions of this Agreement shall be deemed severable, and the unenforceability of any one or more provisions shall not affect the enforceability of any other provisions. In addition, if any provision of this Agreement, for any reason, is declared to be unenforceable, the parties shall substitute an enforceable provision that, to the maximum extent possible in accordance with applicable law, preserves the original intentions and economic positions of the parties.

(f). All taxes due to any governmental authority based on this Agreement are the responsibility of CUSTOMER.

(g). This Agreement is comprised of the present Agreement, the Order Form, and any written Addendum hereto that is dated and executed by CUSTOMER and GF. In the event of any inconsistency between the terms of the Order Form, this Agreement, and an Addendum, then (i) the Addendum shall control, in order of the most recent Addendum; and (ii) thereafter the Order Form shall control.

(h). 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.

(i) 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.

(j). 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.

(k). 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 GF and without the appropriate United States and foreign government licenses.

(l). 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.

(m) Non-Competition. GF shall be free during and after the term of this Agreement to provide services, including, without limitation, to host and develop websites, for any other person or entity.

(n). Staffing. GF 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.

(h). By signing the Order Form or executing the electronic order form, CUSTOMER represents and warrants that they have read and fully understand the terms and provisions of this agreement, have had an opportunity to review this Agreement with legal counsel, and have executed this Agreement based upon such party’s own judgment and advice of independent legal counsel (if sought).

GEMFIND SOCIAL MEDIA, SEARCH ENGINE MARKETING, AND OPTIMIZATION SERVICES – TERMS AND CONDITIONS

The following “Terms and Conditions” define the agreement between you and GemFind with regards to the Online Marketing Services to be performed by GemFind on your behalf. By signing the GemFind Order Form you acknowledge that you have read, understand, and agree to the terms below with respect to the Online Marketing Services you (“Customer”) have agreed to purchase from GemFind based on your execution of the Order Form.

1. SCOPE OF AGREEMENT
GemFind agrees to provide one or more of the following services according to the provisions of the Online Marketing Package Customer has selected and the terms defined in the Order Form: Search Engine Optimization, Social Media Management, Internet Advertising Management, Blogging.

2. SCOPE OF SERVICES
To the extent Customer has engaged GemFind to provide services under this agreement, the scope of those services shall be defined in the Order Form and as follows:
A. Search Engine Optimization (SEO) Services
Customer agrees to provide GemFind with and duly authorizes GemFind to use the specific keywords and/or phrases set forth in the Order Form and/or suggested by GemFind in connection with developing, improving the ranking of, and/or positioning the contents of Customer’s URL(s), in the search engines and/or directories that are defined in Order Form.
SEO services are intended to provide Customer with preferential positioning in selected search engines and report results on an ongoing and timely basis. GemFind SEO services may include, but are not limited to:
i. Keyword Selection.
While the Order Form may contain some keywords identified by the Customer, GemFind will research keywords and phrases to use as search terms and will provide a list of at relevant keywords and phrases to Customer during the Strategy phase of providing the SEO services.

ii. Web Page Creation, Edits and Custom Programming.
(a) As referred to in this Agreement, “Web Pages” may include profiles or pages on Social Media sites and blog posts.
(a) GemFind will create new Web Pages as needed or edit Customer’s existing Web Pages to include various HTML tags, content, text or other elements as deemed necessary by GemFind in order to aid submissions to selected search engines and directories.

(b) GemFind with the consent of the client may register additional domains to be used as gateways to improve GemFind services. Registration shall be in Customer’s name and a schedule of fees for maintaining the additional domains shall be billed to Customer accordingly.

(c) GemFind will create additional Web Pages, on an as needed basis, for the purpose of targeting specific agreed upon keyword or phrase searches relevant to Customer’s Web site, including the keywords and phrases compiled by GemFind. These Web Pages will be placed in locations determined to be most effective and at GemFind’s sole discretion.

(d) GemFind may employ proprietary positioning techniques, coding and other resources, as it deems necessary to improve Customer’s positioning. GemFind reserves the right to create specially coded Web Pages to prevent competitors from copying code or any resources employed by GemFind.

(e) GemFind will not knowingly employ any “Black Hat” techniques in the provision of Search Engine Optimization services to Customer, including: Keyword Stuffing, Cloaking, Link Farms, Link Buying and Link Exchange Programs, Article Spinning, Doorway Pages.

iii. Services.
GemFind will individually submit Customer’s Web Pages to the search engines and directories as stated in the Order Form.
GemFind will create custom reports for traffic and positioning of Customer’s Web site, Web Pages and any additional Web sites or custom Web Pages created by GemFind under this Agreement. Customer acknowledges that any reports provided by GemFind are to be considered estimates based on industry standard reporting software and techniques and shall never be construed as an exact counting of each and every submission.

GemFind will provide editing services and continue to adjust all Web Pages, keywords and other media created under this Agreement in order to increase the effectiveness of SEO services. GemFind will develop and maintain regular monitoring and reporting on search engine placement and performance. Reports will be provided to Customer on a monthly basis.

iv. Acknowledgments
Customer Acknowledges the Following with Respect to SEO Services:
a) GemFind accepts no responsibility for policies of third-party search engines, directories or other Web sites (”Third-party resources”) that GemFind may submit to with respect to the classification or type of content it accepts whether now or in the future. Customer’s Web site or content may be excluded or banned from any Third-party resource at any time. Customer agrees not to hold GemFind responsible for any liability or actions taken by Third-party resources under this Agreement.

b) Customer acknowledges that the nature of many of the resources GemFind may employ under this Agreement are competitive in nature. GemFind does not guarantee number one (1) positions, consistent positioning, “top 10 positions” or guaranteed placement for any particular keyword, phrase or search term. Customer acknowledges that GemFind’s past performance is not indicative of any future results Customer may experience.

c) Customer acknowledges that GemFind strategies and submissions to search engines and directories can take an indefinite amount of time for inclusion, unless paid inclusion programs are employed. Each edit or change made to any resources employed by GemFind will repeat these inclusion times.

d) Customer acknowledges that any of the search engines, directories or other resources may block, prevent or otherwise stop accepting submissions for an indefinite period of time.

e) Customer acknowledges that search engines may drop listings from its database for no apparent or predictable reason. GemFind shall re-submit resources to the search engine based on the current policies of the search engine in question and whether pay inclusion programs are being used.

f) GemFind will endeavor to make every effort to keep Customer informed of any changes that GemFind is made aware of that impact any of the GemFind Services and the execution thereof under this Agreement. Customer acknowledges that GemFind may not become aware of changes to Third-party resources, industry changes or any other changes that may or may not affect GemFind services.

g) Customer acknowledges that some of the Third-party resources only offer paid inclusion programs that require a fee or continued maintenance or performance fees. Customer is solely responsible for all paid inclusion fees and must maintain adequate funds in any Third-party accounts in order to maintain inclusion in these resources.
h) GemFind reserves the exclusive right, for the duration of this Agreement, to approve or disapprove any design strategies, existing code or other techniques, whether requested by Customer or presently employed by Customer that are considered by GemFind to be detrimental to GemFind Online Marketing strategies and the execution of GemFind’s services under this Agreement.

B. Social Media Management Services
Social Media Management services are intended to provide Customer with a presence on selected social media platforms. The Social Media Services Customer receives shall be determined by the Online Marketing Program they select and shall be defined in the Order Form. Services may include, but are not limited to:
i. Facebook Fan Page Creation: GemFind will create a custom Facebook Fan Page for Customer with the number of custom tabs defined in the Customer Order Form.
ii. Facebook and Twitter Posts: GemFind will create the number of monthly custom Facebook and Twitter posts defined in the Customer Order Form. The content of posts shall be determined by GemFind in conjunction with Customer and post length shall be determined by GemFind as will best achieve client’s social marketing goals.
iii. Pinterest: GemFind will create a custom Pinterest page for Customer with a monthly posting schedule as set forth in the Order Form.
iv. Google + Local: GemFind will create a custom Google + Local page for Customer and will create custom posts to the page each month as set forth on the Order Form.
v. Linked In: GemFind will create a custom LinkedIn profile for Customer and will create custom posts for the profile each month as set forth on the Order Form.
C. Blogging Services
Blogging services are intended to provide Customer with a blog presence and additional exposure in social media and search. The Blogging Services Customer receives shall be determined by the Online Marketing program they select and shall be defined in the Order Form. Services may include, but are not limited to:
i. Blogger Set Up: GemFind will create a custom blog via the Blogger platform.
ii. Blog Posts: GemFind will either create blog posts on an as-required basis at the cost provided for in the Order Form or will create the number of blog posts defined in the Online Marketing Package the Customer has selected in their Order Form. The content and length of posts shall be determined by GemFind in conjunction with Customer as will best achieve client’s marketing goals.
D. Advertising Management Services
Advertising Management services are intended to provide Customer with an advertising presence on Facebook, in Google Search, or both, depending on GemFind’s recommendation and the Customer’s preference. The Advertising Management Services Customer receives shall be defined in the Order Form. Customers utilizing Advertising Management Services will incur a separate monthly Advertising Management fee as well as the cost of any advertising purchased, in addition to their Monthly Subscription Fee. The Advertising Management fee is based on Customer’s monthly advertising spend and is scaled as defined in the Order Form. The cost of advertising is determined by the platforms on which Customer will advertise, the number and type of keywords and phrases for which client wishes to purchase advertising, and the volume of advertising Customer desires to run.
i. Facebook and Google Advertising Management: GemFind will create and purchase custom advertising on Customer’s behalf and will enable tracking of advertising cost and performance. Customer acknowledges that any reports provided by GemFind are to be considered estimates based on industry standard reporting software and techniques.
GemFind will provide ongoing advertising management services under this Agreement in order to increase the effectiveness of Advertising Management services. GemFind will develop and maintain regular monitoring and reporting on advertising placement and performance of Customer’s Advertising managed by GemFind under this Agreement. Reports will be provided to Customer on a monthly basis.

ii. Acknowledgements:
Customer Acknowledges the Following with Respect to Advertising Management Services:
a) GemFind accepts no responsibility for policies of third-party search engines, or other Web sites (”Third-party resources”) that GemFind may submit advertising to with respect to the classification or type of ad content it accepts whether now or in the future. Customer’s Web site or content may be excluded or banned from any Third-party resource at any time. Customer agrees not to hold GemFind responsible for any liability or actions taken by Third-party resources under this Agreement.
b) Customer acknowledges that the nature of many of the advertising resources GemFind may employ under this Agreement are competitive in nature. GemFind does not guarantee any specific positions for ads, consistent positioning, or guaranteed ad placement for any particular keyword, phrase or search term. Customer acknowledges that GemFind’s past performance is not indicative of any future results Customer may experience.

c) Customer acknowledges that any of the search engines or other resources may block, prevent or otherwise stop accepting ad submissions for an indefinite period of time.

d) GemFind will endeavor to make every effort to keep Customer informed of any changes that GemFind is made aware of that impact any of the GemFind Advertising Management Services and the execution thereof under this Agreement. Customer acknowledges that GemFind may not become aware of changes to Third-party resources, industry changes or any other changes that may or may not affect GemFind services.

3. TERM AND COMPENSATION
A. Term of Agreement.
This Agreement shall be effective as of the Effective Date of Customer’s Order Form and shall remain in force for the length of time as provided in the Order Form.
B. Compensation.
Customer agrees to pay GemFind the monthly subscription fee for the Online Marketing Package it has selected as defined in the Order Form as well as any initial setup fees as called for in the Order Form, plus any Advertising Management Fees and advertising expenditures it incurs. The first monthly payment is due no later than 45 days after the initial setup work has begun and each subsequent monthly payment is due approximately every 30 days thereafter. Such fees shall be paid for the stated term of this Agreement.
C. Failure to Pay Compensation.
In the event Customer fails to make any of the payments set forth under Compensation, within the time prescribed, GemFind has the right to discontinue provision of all Services until payment is paid in full, plus accrued late charges $35 per month. In the event that Customer fails to make two or more subsequent monthly payments to GemFind, GemFind has the right, but is not obligated, to pursue any or all of the following remedies: (1) terminate the Agreement, (2) remove software, services or resources owned by GemFind, whether leased to Customer by GemFind or not, and/or (3) bring legal action.
E. Renewal.
Term will automatically renew for successive periods of the Initial Term unless either party gives written notice to the other party of non-renewal at least 30 days prior to expiration of the then-current term.
F. Termination.
Customer acknowledges that GemFind has been induced to enter into and/or renew this Agreement on the terms granted by Customer’s promise to perform their obligations for the entire term of the Agreement and for any renewal periods. In the event of a material breach of the Agreement by Customer, the insolvency or bankruptcy of Customer, or Customer’s failure to make two or more subsequent monthly payments to GemFind, GemFind may terminate the Agreement and Customer shall be obligated to pay GemFind any balances currently outstanding or coming due in the present month, as well as a Termination Fee equal to the lesser of the cost of three (3) months of the Services for which the Customer has contracted under this Agreement or the cost of the remaining months of Services under the term of this Agreement and any renewal thereof.

4. DELIVERY DATES AND MILESTONES
GemFind will use reasonable diligence in the development of the services provided hereunder and endeavor to deliver to Customer all deliverables and milestones, no later than as of the dates specified in the Order Form. Customer acknowledges, however, that these delivery deadlines are estimates, and are not required delivery dates. GemFind will retain all documents, source code, keyword lists and other assets employed or created for Customer during the execution of this Agreement. Customer will only receive the output formats of GemFind’s work where applicable. The output is to be used only within the scope of the services as outlined in the Order Form. Customer shall retain all of its intellectual property rights in any text, images or other components it owns and delivers to GemFind for use in the services rendered under this Agreement.

5. NONDISCLOSURE NON-DISPARGEMENT
(a). “Confidential Information” means any and all information, which is of a confidential, proprietary or trade secret nature that is furnished or disclosed by one party to the other party under this Agreement. Without limiting the generality of the foregoing, Confidential Information includes the specific business terms of this Agreement and any other information that is marked as “Confidential,” “Proprietary,” “Trade Secret,” or in some other manner to indicate its confidential, proprietary or trade secret nature.

(b). Confidential Information will remain the property of the disclosing party, and the other party will not be deemed by virtue of its access to the other party’s Confidential Information to have acquired any right or interest in or to any such Confidential Information, other than as specifically set forth herein. The receiving party agrees: (i) to hold the Confidential Information in strict confidence; (ii) to limit disclosure of the Confidential Information to the receiving party’s own employees, agents or authorized consultants having a need to know the Confidential Information for the purposes of this Agreement; (iii) not to disclose any Confidential Information to any third party; (iv) to use the Confidential Information solely and exclusively in accordance with the terms of this Agreement in order to carry out its obligations and exercise its rights under this Agreement; and (v) to notify the disclosing party promptly of any unauthorized use or disclosure of the Confidential Information and to cooperate with and assist the disclosing party in every reasonable way to stop or minimize such unauthorized use or disclosure.

(c). The obligations of either party under this Section 8 will not apply to information that the receiving party can demonstrate (i) at the time of disclosure is generally available to the public or after disclosure becomes generally available to the public through no breach of agreement or other wrongful act by the receiving party; (ii) is independently developed by the receiving party without regard to the Confidential Information of the other party; or (iii) is required to be disclosed by law or order of a court of competent jurisdiction or regulatory authority, provided that the receiving party shall attempt to furnish prompt written notice of such required disclosure and reasonably cooperate with the disclosing party, at the disclosing party’s expense, in any effort made by the disclosing party to seek a protective order or other appropriate protection of its Confidential Information.

(d). The receiving party agrees that if a court of competent jurisdiction determines that the receiving party has breached, or attempted or threatened to breach, its confidentiality obligations to the disclosing party or the disclosing party’s proprietary rights, the disclosing party will be entitled to obtain appropriate injunctive relief and other measures restraining further attempted or threatened breaches of such obligations. Such relief or measures shall be in addition to, and not in lieu of, any other rights and remedies available to the disclosing party.

(e) Non-Disparagement. The Parties agree not to make any statements, written or verbal, or cause or encourage others to make any statements, written or verbal, that defame, disparage or in any way criticize the personal or business reputation, practices, or conduct of the other Party, its employees, directors, and officers. The Parties acknowledge and agree that this prohibition extends to statements, written or verbal, made to anyone, including but not limited to, the news media, investors, potential investors, any board of directors or advisory board or directors, industry analysts, competitors, strategic partners, vendors, employees (past and present), and clients. The Parties understand and agree that this Paragraph is a material provision of this Agreement and that any breach of this Paragraph shall be a material breach of this Agreement, and that each Party would be irreparably harmed by violation of this provision.

6. LIMITED WARRANTY AND LIMITATION ON DAMAGES
GemFind warrants that the services provided hereunder will conform to the scope of services as defined in the Order Form and herein. If services do not conform to the scope of services, GemFind shall be responsible to correct those services without unreasonable delay, at GemFind’s sole expense and without charge to Customer, to bring GemFind into conformance with the scope. This warranty shall be the exclusive warranty available to Customer. Customer waives any other warranty, express or implied. Customer acknowledges that GemFind does not warrant that services will work on all platforms. Customer acknowledges that GemFind will not be responsible for the results, productivity or any other measurable metric not specified herein. Customer waives any claim for damages, direct or indirect, and agrees that its sole and exclusive remedy for damages (either in contract or tort) is the return of the consideration paid to GemFind as set forth earlier in this Agreement.

7. FORCE MAJEURE
Neither party will be liable for, or will be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such Party’s reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event.

8. RELATIONSHIP OF THE PARTIES
A. Independent Contractor. GemFind, in rendering performance under this Agreement, shall be deemed an independent contractor and nothing contained herein shall constitute this arrangement to be employment, a joint venture, or a partnership.

B. No Agency. Customer does not undertake by this Agreement or otherwise to perform any obligation of GemFind, whether by regulation or contract. In no way is GemFind to be construed as the agent or to be acting as the agent of Customer in any respect, any other provisions of this Agreement notwithstanding.
9. MISCELLANEOUS.
A. Integration. This Agreement and the Order Form referred to herein, contains the entire Agreement between the parties relating to the subject matter hereof and supersedes any and all prior agreements or understandings, written or oral, between the parties related to the subject matter hereof. No modification of this Agreement shall be valid unless made in writing and signed by both parties hereto.

B. Binding Effect. This Agreement shall be binding upon and inure to the benefit of Customer and GemFind and their respective successors and assigns, provided that GemFind may not assign any of their obligations under this Agreement without Customer’s prior written consent.

C. Waiver. The waiver by either party of any breach or failure to enforce any of the terms and conditions of this Agreement at any time shall not in any way affect, limit, or waive such party’s right thereafter to enforce and compel strict compliance with every term and condition of this Agreement.

D. Assignability. Customer has no right to assign, sell, modify or otherwise alter this Agreement, except upon the express written advance approval of GemFind, which consent can be withheld for any reason.

E. Indemnification. Customer warrants that everything it provides GemFind to employ in GemFind is legally owned by or legally licensed to Customer. Customer agrees to indemnify and hold GemFind harmless from any and all claims brought by any third-party relating to any aspect of GemFind, including, but without limitation, any and all demands, liabilities, losses, costs and claims including attorney’s fees arising out of injury caused by Customer’s products/services, material supplied by Customer, copyright infringement, and defective products sold via GemFind. Customer agrees to indemnify GemFind from responsibility for problems/disruptions caused by third-party services that Customer may use such as merchant accounts, shopping carts, shipping, hosting services, real time credit card processing and other services that relate to the ownership and operation of the websites or social media sites for which GemFind provides services hereunder.

F. Use of Material for Promotional Purposes. Customer grants GemFind the right to use its work in producing GemFind for promotional purposes and/or to cross-link it with other advertising developed by GemFind. Customer grants GemFind the right to list, reference or otherwise identify Customer as a client of GemFind in GemFind’s advertising and marketing.

G. No Responsibility for Loss. GemFind will have no responsibility for any third-party disrupting, intruding or otherwise copying files in part or in whole on all or any part of the work performed for GemFind. GemFind is not responsible for any down time, lost files, improper links or any other loss that may occur in the operation of GemFind under this Agreement.

H. Derivative Works. GemFind will have the exclusive rights in making any derivative works from any of its work, practices, coding, programming or other work in regards to GemFind.

I. Attorney’s Fees. In the event any party to this Agreement employs an attorney to enforce any of the terms of the Agreement, the prevailing party shall be entitled to recover its actual attorney’s fees and costs, including expert witness fees from the other party, in addition to any damages award or other compensation granted by the Court to the prevailing party.

J. Severability. If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.

K. Notice and Payment.
i. Any notice required to be given under this Agreement shall be in writing and delivered personally to the other designated party at the above stated address or mailed by certified, registered or Express mail, return receipt requested, by Federal Express, or by email to the email addresses provided for notice for GemFind and Customer as stated on the Order Form.
ii. Either party may change the address to which notice or payment is to be sent by written notice to the other under any provision of this paragraph.
Each party represents and warrants that they are authorized to enter into this Agreement in entirety and duly bind their respective principals by their signature on the Customer Order Form.

L. Law and Disputes
i. Governing Law; Jurisdiction. Any controversy or claim arising out of or relating to this Agreement, the formation of this Agreement or the breach of this Agreement, including any claim based upon arising from an alleged tort, shall be governed by the substantive laws of the State of California, except that all arbitration and related proceedings conducted pursuant to Section L(iii) below, including without limitation confirmation proceedings, shall be governed by the Commercial Rules of the American Arbitration Association.

ii. ANY SUIT, ACTION OR PROCEEDING CONCERNING THIS AGREEMENT THAT IS NOT SUBJECT TO MANDATORY ARBITRATION PURSUANT TO SECTION 11(c) BELOW MUST BE BROUGHT IN A CALIFORNIA STATE OR FEDERAL COURT LOCATED IN ORANGE COUNTY, CALIFORNIA, AND EACH OF THE PARTIES HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS (AND OF THE APPROPRIATE APPELLATE COURTS THEREFROM) IN ANY SUCH SUIT, ACTION OR PROCEEDING AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT ANY SUCH SUIT, ACTION OR PROCEEDING WHICH IS BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

iii. Mandatory Arbitration. Notwithstanding the above, each party agrees that any dispute between the parties arising out of this Agreement or in any manner relating to the Services must be submitted by the parties to arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, as administered by a recognized provider of arbitration services agreed upon by both parties, before a single arbitrator, appointed in accordance with such rules. Judgment upon the award may be entered in any court having jurisdiction thereof. Any such arbitration will be held in Orange County, California. Any action filed by either party in any court in violation of this Section should be dismissed pursuant to this Section.
iv. The parties expressly agree that all costs, attorney fees, and expenses incurred by GemFind for any legal action taken by GemFind against Customer for any claims arising out of this agreement shall be fully reimbursed by Customer if GemFind is found to be the prevailing party in such action. The parties further agree that this provision is unilateral in favor of GemFind, and shall not create or imply any right of CUSTOMER to recover costs, fees, or expenses under any action relating to this agreement.

M. 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.
N. Non-Competition. GemFind shall be free during and after the term of this Agreement to provide services, including, without limitation, to provide Online Marketing Services, for any other person or entity.

O. 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.

P. Non-Solicitation. CUSTOMER shall not, directly or indirectly, hire, solicit, encourage to leave his or her employment, engage as a contractor, or cause others to directly or indirectly hire, solicit, encourage to leave his or her employment, or engage as a contractor, any employee, contractor, or sub-contractor of GemFind, or any person employed, contracted or subcontracted by GemFind within the two years preceding the effective date of this agreement.

By signing the Order Form or executing the electronic order form, CUSTOMER represents and warrants that they have read and fully understand the terms and provisions of this agreement, have had an opportunity to review this Agreement with legal counsel, and have executed this Agreement based upon such party’s own judgment and advice of independent legal counsel (if sought).