Terms of Service
VIRTUAL DIAMOND BOUTIQUE TERMS OF SERVICE
Welcome to Virtual Diamond Boutique. The VDBAPP.com website (the “Website”), the VDB mobile application (the “Mobile App”) and services offered by VDB in connection with the Mobile App and the Website (the “Services”) are operated by Virtual Diamond Boutique, Inc.(“VDB” “ we” or “us”). The Website and Mobile App (together, the “Platform”) provide a means to enable persons or enterprises (“you” or the “Customer”) who wish to examine and purchase diamonds and other gemstones to be matched with sellers of the same.
THE FOLLOWING AGREEMENT DESCRIBES THE TERMS OF SERVICE UPON WHICH VDB OFFERS YOU ACCESS TO AND USAGE OF THE PLATFORM AND SERVICES.
These terms of service (these “Terms”) constitute a legal agreement between you and VDB. In order to use the Platform and Services you must agree to these Terms. By clicking the “I AGREE” button that follows these Terms or by accessing or using the Platform or receiving any Services, including downloading and installing the Mobile App, you hereby expressly acknowledge and agree to be bound by these Terms and any future amendments and additions to these Terms made by us at any time as provided herein. IF YOU DO NOT AGREE TO THE TERMS, YOU MAY NOT USE OUR PLATFORM OR OUR SERVICES.
CHANGES TO TERMS OF SERVICE
We reserve the right to modify these Terms or our policies relating to the Platform or Services at any time, effective upon posting of an updated version of these Terms on the Platform. You are responsible for regularly reviewing these Terms. Continued use of the Platform or any Services after any such changes will constitute your consent to such changes.
In order to access the Platform or Services, you will be required to register for a VDB account (an “Account”). You agree to: (a) provide true, accurate, current and complete information about yourself when registering for an Account, including any credit card information (your “ Credit Card”); (b) maintain and promptly update your Account to keep it true, accurate, current and complete; (c) review the applicable fees (accessible on the Website) to be charged for your use of the Platform and Services (the “Fees”); and (d) authorize VDB or its third party service providers to charge your Credit Card for any and all Fees incurred by you for your use of the Platform or Services. It is your responsibility to monitor your usage of the Platform and Services and pay for any additional Fees incurred if your usage exceeds any pre-allocated amounts. You are responsible for all reasonable costs incurred by VDB in attempting to obtain payment of Fees, including any attorneys’ fees, collection agency fees, interest fees and court costs. If we have reasonable grounds to suspect that any information provided by you is untrue, inaccurate, not current or incomplete, or if we suspect that you are in violation of, or reasonably likely to be in violation of, these Terms, we have the right to suspend or terminate your Account and refuse any and all current or future use of the Platform or Services.
TERM OF REGISTRATION
The term of your registration will commence as of the date you complete your registration form on the Mobile App or Website (“Registration Date”) and, unless earlier terminated in accordance with these Terms, will continue for one year (“Initial Term”). At the expiration of such Initial Term or any Renewal Term, your registration will be automatically renewed for an additional one year term (each, a “Renewal Term”) (with the Initial Term, the “Term”).
VDB may terminate or restrict your Account, including your right to access and use the Platform or Services, in whole or in part, as follows:
For Cause. Immediately
(a) in order to comply with applicable law or instructions from any governmental agency or authority;
(b) if VDB, in its sole discretion, suspects that you are using the Platform or Services in a manner not permitted by these Terms; or (3) upon any breach of these Terms.
For Convenience. For convenience, upon notice by VDB to you for any reason.
EFFECTS OF TERMINATION
Upon the expiration or earlier termination of your Account or rights to use the Platform or Services, for any reason: (a) you will no longer be authorized to access or use the Mobile App or Website or otherwise use any of the features or Services offered by or through the Mobile App or Website; (b) VDB may delete any Content (as hereinafter defined) associated with you or your Account; and (c) all rights and obligations of the parties under these Terms shall expire, except those rights and obligations intended to survive, including the sections titled Effects of Termination, Disclaimer of Warranties, Intellectual Property, Indemnification, Limitation on Liability and General. For any termination by VDB for convenience, VDB shall refund to you a pro-rata portion of any prepaid fees, based on the time remaining in the Term. VDB shall have no other liability in the event of termination or expiration.
WARRANTIES AND REPRESENTATIONS
You represent and warrant to VDB that you will: (a) maintain the security of your user identification and password for the Account; (b) be responsible for all charges resulting from the use of your Account, including but not limited to, unauthorized use of your Account prior to you notifying us in writing of such use and taking steps to prevent its further occurrence by changing your password; (d) not access or use the Platform or Services except as expressly permitted by these Terms and any additional instructions, guidelines or policies issued by; (e) comply with all applicable U.S. and international laws, statutes, ordinances, rules, regulations, contracts and applicable licenses regarding your use of the Platform and Services; and (f) not access or use the Platform or Services in order to develop a competing product or service.
You further represent, warrant and covenant that: (i) you are at least 18 years old and have the power, and authority to enter into and perform your obligations under these Terms; (ii) you are a diamond manufacturer, vendor, storeowner or diamond broker; (iii) all information you provide to VDB, including Credit Card information, is truthful, accurate and complete; (iv) you are authorized, or have the permission of the authorized signatory of the Credit Card used to pay any Fees incurred from use of the Services; and (v) if you are accessing or using the Platform or Services on behalf of a corporate entity, that you are authorized enter into, and bind such entity to, these Terms.
You agree that you:
· will only use the Platform and Services for lawful purposes;
· will not use the Services for sending or storing any unlawful material or for fraudulent purposes;
· will not use the Platform and Services to cause nuisance, annoyance or inconvenience;
· will not impair the proper operation of the network;
· will not try to harm the Platform or Services in any way whatsoever;
· will provide us with whatever proof of identity we may reasonably request;
· are aware that when requesting Services using SMS, standard-messaging charges will apply
You understand that all postings, messages, information, suggestions, ideas, data, text, files, images, photos, pictures, graphics, audio and video clips or other materials posted on, transmitted through, or linked on the Platform by users (collectively, the “Content”), are the sole responsibility of the person who submitted such Content. By submitting any Content to the Platform, you hereby grant VDB a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display, use and distribute the Content in any medium for commercial and non-commercial purposes. By submitting Content, you warrant and represent that you own or otherwise control all of the rights to your Content including, without limitation, all the intellectual property and all rights necessary for you to provide, post, upload, input or submit the Content to us or the Platform. VDB has no obligation to monitor user-submitted Content.
The Services, Website and Mobile App are protected by copyrights, trademarks, trade secrets and other proprietary rights of VDB and its licensors, whether registered or unregistered (collectively, the “Intellectual Property”). VDB and its licensors own and shall retain all right, title, and interest in and to the Mobile App and Website and all content displayed therein, to the extent such content is developed by VDB or its licensors (excluding user-submitted Content), including all Intellectual Property therein, except as expressly granted to you in these Terms.
Subject to your compliance with these Terms, VDB grants you a limited, revocable, non-exclusive, worldwide, and non-transferable license to: (a) access and use the Website in connection with your use of the Mobile App; (b) download, install, access and use the Mobile App for your own use on a mobile device owned or otherwise controlled by you; and (c) if applicable for Android devices, share the Mobile App directly with family members in a single family group on Google Play.
You understand and agree that except as expressly permitted by applicable law or these Terms, neither you nor a third party acting on your behalf will: (i) decompile, disassemble or reverse engineer the Mobile App or Website; (ii) copy, reproduce, sell, modify, create derivative works of or otherwise exploit the Mobile App or Website or any portion thereof; (iii) use the Mobile App or Website in any manner to provide service bureau, commercial time-sharing or other computer services to third parties; (iv) use components of the Mobile App to run applications not running on the Mobile App; (v) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile App or Website, including any copy thereof; (vi) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Mobile App or the Website; or (vii) as to iOS devices, use the Mobile App in contravention of the Usage Rules set forth in the Apple App Store Terms of Service.
You hereby agree that you will: (1) only use the Mobile App to access and use the Platform and Services; (2) not authorize any third party to access or use the Platform or Services on your behalf using any automated process such as a BOT, a spider or periodic caching of information stored by the Service on your behalf; (3) not use any software or hardware that reduces the number of users directly accessing or using the Platform or Services (sometimes called ‘multiplexing’ or ‘pooling’ software or hardware); (4) allow the Mobile App to automatically download and install updates from time to time, which are designed to improve, enhance and further develop the Mobile App and may take the form of bug fixes, enhanced functions, new software modules and completely new versions.
It is your responsibility to check to ensure you download the correct Mobile App for your device. VDB is not liable if you do not have a compatible device or if you have downloaded the wrong version of the Mobile App. VDB reserves the right to terminate your Account should you use the Platform and Services with an unauthorized device.
iOS Devices: In the event of any failure of the Mobile App to conform to any applicable warranty, you may notify Apple, and Apple may refund the purchase price for the Mobile App (if any) to you; however, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Mobile App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any applicable warranty will be VSB’s responsibility. For clarity, Apple will have no liability with respect to Fees paid other than the purchase price (if any) for the Mobile App.
Android Devices: You may submit an online request at the Google Play Store at any time within 48 hours after your purchase, and Google may refund to you the purchase price (if any) for the Mobile App; however, to the extent permitted by applicable law, Google will have no other warranty obligations whatsoever with respect to the Mobile App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any applicable warranty will be the VDB’s responsibility. For clarity, Google will have no liability with respect to Fees paid other than the purchase price (if any) of for the Mobile App.
PAYMENT, PRICING AND PROMOTIONS
Any Fees are due immediately in accordance with the pricing schedule on the Website or otherwise made available to you and are non-refundable (except as specifically provided in these Terms), unless a prior invoicing arrangement has been made with VDB in writing. VDB reserves the right to determine final prevailing pricing – please note the pricing information published on the website may not reflect the prevailing pricing, which if it differs from what’s published on the Website, shall be subject to prior written agreement by you.
VDB may make promotional offers to some or all of its customers. These offers may include different features and rates. Unless offered to you, these promotional offers will not change your existing rates or the Terms. VDB may change its Fees at any time for any reason; provided, however, that in the event of such increase in Fees, you may terminate for convenience and receive a pro-rata refund of any prepaid Fees.
THIRD PARTY INTERACTIONS
During use of the Platform or Services, you may enter into correspondence with, purchase goods and/or services from, enter into promotions with, or otherwise interact with third parties or other users of the Platform or Services. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third party. VDB and its licensors will have no liability, obligation or responsibility for any such interaction between you and any such third party. VDB does not endorse any sites on the Internet that are linked through the Platform, and in no event will VDB or its licensors be responsible for any content, products, services or other materials on or available from such sites or third-party providers. To the extent any portion of the Platform contains opinions provided by third party users of the Platform, such opinions are the opinions of the individual author and may not reflect the opinions of VDB or any of its employees. Certain third-party providers of goods and services may require your agreement to additional or different terms and conditions prior to your use of or access to such goods or services, and VDB disclaims any and all responsibility or liability arising from such agreements between you and the third party providers. We reserve the right, but have no obligation, to monitor disputes between users of the Platform or Services. Any dispute between you and another user, including sellers, must be resolved between yourselves. If you have a dispute with one or more users, you release us (and our affiliates and subsidiaries, and our and their current, future and former officers, directors, employees and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
VDB may utilize third-party advertising and marketing supplied through the Platform and other mechanisms to subsidize the Platform and Services. By agreeing to these Terms you agree to receive such advertising and marketing. VDB may compile and release information regarding you and your use of the Platform or Service on an anonymous basis as part of a customer profile or similar report or analysis. You agree that it is your responsibility to take reasonable precautions in all actions and interactions with any third party you interact with through the Platform.
You agree that you will indemnify and hold VDB, its licensors and their respective parent organizations, subsidiaries and affiliates and their respective current, future and former officers, directors, users, employees, attorneys and agents, and their successors or assigns (collectively, the “Indemnified Parties”) harmless from and against any and all costs, damages, losses, liabilities, expenses (including attorneys’ fees and costs) and other amounts, and if directed by VDB, will defend the Indemnified Parties against all claims arising out of or in connection with: (a) your violation or breach of these Terms, including any additional instructions, guidelines or policies issued by VDB; (b) the infringement, misappropriation or other violation of any patent, trademark, copyright, trade secret or other intellectual property or proprietary right of a third party by the Content or any other information or materials provided by you or by the use thereof by VDB; or (c) fraud committed by, or the intentional misconduct, criminal acts or gross negligence of, you, or (d) your use or misuse of the Platform or Service, and (e) your interaction with a third party through the Platform.
DISCLAIMER OF WARRANTIES
VDB DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE PLATFORM WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, APPLICATION, SYSTEM OR DATA, (B) THE SERVICE OR PLATFORM WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA OR CONTENT, INCLUDING WITHOUT LIMITATION PRODUCT DESCRIPTIONS PROVIDED BY THIRD PARTIES, WILL BE ACCURATE, COMPLETE, RELIABLE OR ERROR-FREE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE PLATFORM WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS IN THE SERVICE OR PLATFORM WILL BE CORRECTED, OR (F) THE PLATFORM OR THE SERVER(S) THAT MAKE THE PLATFORM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE PLATFORM IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OR NON-INFRINGEMENT, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY VDB. VDB ASSUMES NO LIABILITY FOR THE USE OR INTERPRETATION OF INFORMATION CONTAINED HEREIN. YOU ACKNOWLEDGE AND AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE PLATFORM AND SERVICE, AND ANY THIRD PARTY SERVICES OR PRODUCTS REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE PLATFORM AND SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. VDB IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
LIMITATION OF LIABILITY
IN NO EVENT WILL VDB OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING PERSONAL INJURY, LOSS OF DATA, DENIALS OF SERVICE (INCLUDING COMPUTER CRASHES), REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE)ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE PLATFORM OR SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE PLATFORM OR SERVICES, ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY CONTENT ON THE PLATFORM OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY THIRD PARTY WHOSE ADVERTISING, CONTENT OR PRODUCTS APPEAR ON THE PLATFORM OR WHO IS REFERRED THROUGH THE PLATFORM, EVEN IF VDB OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF VDB CANNOT lawfully disclaim liability for any of the foregoing damages, theN VDB maximum liability to You is limited to the purchase price paid by You for USE OF THE PLATFORM DURING THE IMMEDIATELY PRECEDING 12 MONTHS. These limitations apply even if any other remedies available to You fail of their essential purpose.
VDB may give notice by means of a general notice on the Platform, electronic mail to your email address on record, or by written communication sent by first class mail or pre-paid post to your address on record. Any notice will be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to VDB at any time by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to VDB at the following addresses: 580 Fifth Avenue, New York NY 10036. All notices sent by you will be deemed given when actually received by VDB. You agree that any notice, agreements, disclosures, or other communications that we provide to you electronically, at the email address provided by you during the registration process or when posted on the Mobile App or Website, satisfy any legal requirements that such communications be in writing.
VDB may disclose any information we have about you (including your identity) if we determine that such disclosure is necessary in connection with any investigation or complaint regarding your use of the Platform and Services, or to identify, contact or bring legal action against someone who may be causing injury to or interference with (either intentionally or unintentionally) VDB’s rights or property, or the rights or property of visitors to or users of the Platform and Services, including VDB’s customers. VDB reserves the right at all times to disclose any information that VDB deems necessary to comply with or is permitted by any applicable law, regulation, legal process or governmental request, including exchanging information with other companies and organizations for fraud protection purposes.
All rights and obligations of you or VDB relating to these Terms will be governed by and construed in accordance with the laws of the State of New York, including its conflicts of law rules. You agree that any dispute arising from or relating to the subject matter of these Terms will be governed by the exclusive jurisdiction and venue of the state and federal courts of New York County, New York.
You acknowledge and agree that any violation by you of these Terms will cause irreparable harm to VDB, for which monetary damages would be inadequate, and you consent to VDB obtaining any injunctive or equitable relief that VDB deems necessary or appropriate in such circumstances. These remedies are in addition to any other remedies VDB may have at law or in equity.
LIMITATION ON CLAIMS
No action arising out of, in connection with, or relating to these Terms or the subject of these Terms shall be brought by You more than one (1) year after the accrual of the cause of action. This period shall not be extended for any reason, except by the written consent of both parties. All statutes or provisions of law which would toll or otherwise affect the running of the period of limitation are hereby waived, and no such statute or provision of law shall operate to extend the period limited in this paragraph.
VDB will not be liable for any delay or failure to perform its obligations under these Terms resulting from causes outside of its reasonable control, including without limitation any failure to perform hereunder due to unforeseen circumstances or causes beyond VDB’s control such as, but not limited to, acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, network infrastructure or telecommuncations failures, unauthorized access to VDB’s information technology systems by third parties, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.
If you have a question or concern about these Terms, please contact VDB Support by mail:VDB, Inc. Attn: Customer Service
580 Fifth Avenue,
New York NY 10036
Tel + 1.212.221.0975
Fax + 1.212.997.5273
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible on the Website or Mobile App, you may notify our copyright agent, as set forth in the Digital Millennium Copyright Act of 1998 (DMCA), Title 17, United States Code, Section 512(c)(2). For your complaint to be valid under the DMCA, you must provide the following information when providing notice of the claimed copyright infringement:
A physical or electronic signature of a person authorized to act on behalf of the copyright owner;
Identification of the material that is claimed to be infringing or to be the subject of the infringing activity and that is to be removed or access to which is to be disabled as well as information reasonably sufficient to permit VDB to locate the material;
Information reasonably sufficient to permit VDB to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address;
A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, by its agent, or by law; and
A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
The above information must be submitted as a written notification to the following Designated Agent: