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Welcome to the Ideal Diamond Solutions website platform. By completing the above application and allowing Ideal Diamond Solutions, Inc. to create and administer a website on your behalf, you accept these terms and conditions.
This Agreement is effective between you (hereinafter referred to as "LICENSOR") and Ideal Diamond Solutions, Inc. with mail offices at 319 Lafayette Street, Suite 209, New York, NY 10012 ("IDS"). In consideration of the mutual terms, agreements and conditions herein contained, and for other good and valuable consideration, receipt of which is hereby acknowledged, LICENSOR and IDS agree as follows:
a. Subject to the terms and conditions set forth in this Agreement, LICENSOR hereby grants IDS an exclusive license to use any and all of LICENSOR's Trademarks as related to its trade name and/or trade dress ("Licensed Trademarks") for the sole purpose of operating a website under one (or more) of the Licensed Trademarks ("Licensed Website") and to use such Licensed Trademarks to sell the products including diamonds, jewelry and other related and peripheral products ("Licensed Products") through said Licensed Website.
b. IDS covenants on behalf of itself, its agents and employees that during the term of this Agreement and thereafter it will refrain from using anywhere throughout the world any trademark, trade name or trade dress confusingly or deceptively similar to any of the Licensed Trademarks, or confusingly or deceptively similar to any other trademarks, trade names or trade dress of LICENSOR, except as permitted in this Agreement or in a separate Agreement with LICENSOR. During the term of this Agreement, IDS may create additional domain names using names that are similar or identical to Licensed Trademarks for use with Licensed Website provided that at the expiration or termination of this Agreement, IDS shall stop using such additional domain names and transfer such domain names to LICENSOR, provided that LICENSOR pays any transfer fees.
c. IDS acknowledges that IDS shall have no right to use the Licensed Trademarks and/or Licensed Website subsequent to the expiration or termination of this Agreement and that IDS shall not be entitled to any compensation, damages or other payments in respect of such expiration or termination or in respect of any investment that IDS may have made in the development of the Licensed Trademarks.
d. IDS acknowledges and agrees that this Agreement does not give IDS any right, title and interest in Licensed Trademarks, nor any right to use Licensed Trademarks, except as provided by the express terms of this Agreement, and that LICENSOR reserves all rights not explicitly granted to IDS under this Agreement. IDS further acknowledges and agrees that its use of Licensed Trademarks and all goodwill associated with such Licensed Trademarks shall accrue to the benefit of Licensor.
a. IDS agrees to provide LICENSOR with a back-end product management interface for the Licensed Website allowing LICENSOR to approve, change and modify the Licensed Products offered for sale on the Licensed Website. IDS agrees to use Licensed Trademarks only with respect to Licensed Products which are approved by LICENSOR.
b. IDS shall work with LICENSOR with regard to the design, layout and presentation of the Licensed Website, provided that (i) LICENSOR responds to IDS requests for information or comment, (ii) LICENSOR makes the final determination with regard to the presentation and use of Licensed Trademarks on the Licensed Website and (iii) IDS makes the final determination with regard to the remainder of the Licensed Website including but not limited to the design, layout and presentation of the Licensed Website.
c. IDS agrees to provide customer service that will maintain and enhance the goodwill and reputation associated with Licensed Trademarks.
d. IDS agrees to comply with all applicable statutory and regulatory requirements including but not limited to all health and safety requirements which may be applicable to the operation of its business and/or to the Licensed Products sold under Licensed Trademarks.
e. IDS agrees to allow LICENSOR and/or LICENSOR's representatives to visit and inspect its facilities and offices on ten (10) days prior written notice during normal business hours at any time that the facilities and/or offices are open for any reason associated with maintaining the quality of the Licensed Product and/or customer service.
a. IDS agrees to pay LICENSOR a royalty on sales of Licensed Products at the rate which is 60% of the net profit on the item sold ("Royalty Rate"). The Royalty Rate will be applied to the payment received by IDS for Licensed Products, net of any cost of goods sold and taxes, and net of a 5% overhead charge to cover shipping and insurance costs and fees associated with the form of payment (e.g. credit or debit card fees, wire transfer fees) ("Net Payment").
b. IDS agrees to provide LICENSOR with a back-end reporting interface to the Licensed Website which includes a statement confirming all sales of Licensed Products made from Licensed Website during the month, the Net Payment for each such sale and the amount of LICENSOR’s royalty on each such sale. IDS shall make payment to LICENSOR of all Net Payments due within 10 days of a request by LICENSOR such payment or 60 days after the month when such Net Payments accrued, whichever is earlier.
c. IDS will include information about LICENSOR and LICENSOR’s business on Licensed Website.
d. IDS will display LICENSOR CONTENT (as defined below) with regard to products and jewelry that LICENSOR has available for sale in its stores on Licensed Website. IDS will not sell such items on Licensed Website but rather will direct customers interested in such items to LICENSOR’s store.
e. IDS represents and warrants that all content that it supplies for use on Licensed Website ("IDS Content") including but not limited to information on Licensed Products will not infringe the rights of any other person or entity.
f. IDS represents and agrees that it will keep in strict confidence the names and identities of customers and prospective customers who shop on the Licensed Website and that IDS will not share or disclose this customer information without the prior written consent of LICENSOR.
a. LICENSOR agrees to supply information about LICENSOR and LICENSOR’s business including but not limited to such information as IDS may reasonably request for inclusion on Licensed Website. LICENSOR may also provide other content to IDS for inclusion on Licensed Website. For all products and jewelry that LICENSOR wants displayed on Licensed Website, LICENSOR agrees to provide IDS with such information as IDS reasonably requires for such displays. All information supplied by LICENSOR to IDS is collectively referred to as ("LICENSOR CONTENT"). LICENSOR understands that IDS shall retain full editorial control over the content of LICENSED WEBSITE and the format of any information that it obtains from LICENSOR for inclusion on Licensed Website.
b. LICENSOR represents and warrants that LICENSOR CONTENT will not infringe the rights of any person or entity.
c. By accepting this Agreement LICENSOR agrees to no cost membership in the Verified Internet Diamond Purchasers Affiliation ("VIDPA"), an organization established by IDS for the purposes of marketing the Licensed Website to consumers. Vendor agrees to the use of the VIDPA logo on the Licensed Website with linking to and from www.vidpa.org.
d. LICENSOR agrees not to accept for return or delivery Licensed Products that IDS has shipped to customers who have used the Licensed Website and instead to refer all such customers to the return policies on the Licensed Website.
a. IDS agrees to notify LICENSOR of any and all infringements, imitations, illegal use or misuse of Licensed Trademarks which come to IDS's attention. IDS further agrees to notify LICENSOR of such acts and furnish LICENSOR with all evidence concerning these acts within seven (7) days of IDS's receiving information thereof. LICENSOR shall have sole discretion to determine what form of action, if any, is appropriate, including but not limited to action in the Courts, administrative agencies or otherwise to prevent such infringement, imitation, illegal use or misuse of the trademarks. LICENSOR agrees to consult with IDS prior to taking action if time and circumstances reasonably permit such consultation to occur.
b. In the event that IDS should be notified of claims and/or assertions of rights adverse to those of LICENSOR in Licensed Trademarks, IDS shall forthwith notify LICENSOR of such claims and/or assertions and furnish LICENSOR with all information and evidence concerning such claims and/or assertions.
c. IDS undertakes to render LICENSOR all assistance in connection with any matter pertaining to the protection of Licensed Trademarks whether in the Courts, administrative agencies or otherwise, and to make promptly available to LICENSOR, its representatives, agents and attorneys all of the IDS' files, records and other information and materials pertaining to the distribution and sale of goods and services utilizing Licensed Trademarks, in connection with any matter pertaining to the protection of Licensed Trademarks.
a. IDS does hereby indemnify LICENSOR against and agrees to save, defend and hold LICENSOR harmless of and from all fines, expenses, reasonable attorneys’ fees, court costs, settlement amounts, judgments, reasonable costs of advertising material and media time/space, and costs of changing, substituting or placing the same, and all expenses of recall, refunds, public notices and other such amounts incurred by LICENSOR in connection with an action, suit, proceeding, claim, demand, investigation or inquiry alleging infringement or "passing-off," brought or made against LICENSOR in connection with the use of IDS Content on the Licensed Website ("Third Party Action"); provided, however, that, as express conditions precedent to such indemnity, LICENSOR shall (i) advise IDS of such Third Party Action in a timely fashion such that IDS’s rights are not prejudiced; and (ii) fully cooperate with IDS and its representatives in the defense or settlement of the Third Party Action. IDS shall have the right (to the exclusion of LICENSOR) to (a) select such counsel and other representatives to represent LICENSOR and IDS in connection with the Third Party Action; (b) make all decisions, judgments and elections in connection with the Third Party Action; and (c) settle or compromise the Third Party Action in its sole discretion. LICENSOR shall be entitled to retain counsel at LICENSOR’s expense if it believes it requires independent representation in such action.
b. LICENSOR does hereby indemnify IDS against and agrees to save, defend and hold IDS harmless of and from all fines, expenses, reasonable attorneys’ fees, court costs, settlement amounts, judgments, reasonable costs of advertising material and media time/space, and costs of changing, substituting or placing the same, and all expenses of recall, refunds, public notices and other such amounts incurred by IDS in connection with an action, suit, proceeding, claim, demand, investigation or inquiry alleging infringement or "passing-off," brought or made against IDS in connection with IDS’ use of any Licensed Trademark and/or LICENSOR Content pursuant to this Agreement ("Infringement Action"); provided, however, that, as express conditions precedent to such indemnity, IDS shall (i) advise LICENSOR of such Infringement Action in a timely fashion such that LICENSOR’s rights are not prejudiced; and (ii) fully cooperate with LICENSOR and its representatives in the defense or settlement of the Infringement Action. LICENSOR shall have the right to (a) select such counsel and other representatives to represent LICENSOR and IDS in connection with the Infringement Action; (b) make all decisions, judgments and elections in connection with the Infringement Action; and (c) settle or compromise the Infringement Action in its sole discretion. IDS shall be entitled to retain counsel at IDS’ expense if it believes it requires independent representation in such action.
c. LICENSOR does hereby indemnify IDS against and agrees to save, defend and hold IDS harmless of and from one half (50%) all fines, expenses, reasonable attorneys’ fees, court costs, settlement amounts, judgments and other such amounts incurred by IDS in connection with an action, suit, proceeding, claim, demand, investigation or inquiry alleging that IDS failed to collect sales, use or similar such taxes for sales made to LICENSOR’S State through the Licensed Website. LICENSOR shall fully cooperate with IDS and its representatives in the defense or settlement of such action, provided that IDS shall (a) select such counsel and other representatives to represent LICENSOR and IDS in connection with such action; (b) make all decisions, judgments and elections in connection with such action; and (c) settle or compromise such action in its sole discretion. For the avoidance of doubt, this indemnification is intended by the parties to cover any tax based on the sale or use of Licensed Product, regardless of the name used for the tax, and provided further that it is not intended to cover gross income, franchise or corporate taxes.
a. The term of this Agreement shall be three years. Unless otherwise terminated by either party pursuant to the remaining provisions of Paragraph 7, this Agreement will automatically renew for additional one year terms at the end of the initial and subsequent terms.
b. Either party may terminate this Agreement on thirty (30) days prior written notice to the other party starting six (6) months after Licensed Website is made available to prospective customers.
c. In the event that a party materially breaches this Agreement, the non-breaching party shall give written notice of said breach to the breaching party. If the breaching party does not cure the breach to the satisfaction of the non-breaching party within fourteen (14) days of receipt written notice of the breach, the non-breaching party may terminate this Agreement immediately on three (3) days notice to the breaching party.
d. Either party may terminate this Agreement upon 48 hours notice to non-terminating party if:
e. Upon termination of this Agreement, IDS shall immediately stop all use of Licensed Trademarks, shall shut down Licensed Website or put a banner on Licensed Website that reads "Under Construction", and transfer any domain names that IDS created that are similar to Licensed Trademarks to LICENSOR, provided that LICENSOR pays the fee for such transfer. IDS shall, however, complete any transactions that have been initiated on Licensed Website prior to the termination.
f. Termination of this Agreement, for whatever reason, shall not affect any rights of either party which have accrued prior to the termination of this Agreement. The terms of paragraphs 1(c), 1(d), 6 and 8, as well as any definitions and/or terms that are necessary for the proper interpretation of those paragraphs shall survive the termination of this Agreement.
a. Failure of the LICENSOR to notify IDS of any default as provided in this Agreement or to terminate this Agreement pursuant to any provisions herein contained shall not constitute a waiver of any such default, or constitute a consent or acquiescence to or waiver of, any other or future defaults, whether of the same or a different character.
b. Failure of either party at any time to require performance of any provision shall not affect the right to require full performance thereof any time thereafter, and the waiver by either party of a breach of any such provision shall not constitute a waiver of any subsequent breach or nullify any such provision.
c. Service of any documents or notices on the parties hereto shall be by personal delivery or by overnight service such as Federal Express or UPS to IDS at the above address and addressed to LICENSOR at its business address. Either party may, from time to time, by serving notice as provided in this paragraph, designate a substitute address in writing and thereafter notices shall be directed to such substitute address.
d. The parties understand and agree that each is an independent contractor, that neither party shall be considered to be the agent, master or servant of the other party for any purpose whatsoever and that neither party has any authority to enter into any contract, assume any obligations or to make any warranties or representations on behalf of the other. Nothing in this Agreement shall be construed to create a relationship of partners or joint venturers between the parties.
e. This Agreement constitutes the entire agreement between the parties with respect to IDS’ license to use Licensed Trademarks and may not be amended, modified or changed in any respect unless the change is reduced to writing and agreed to by each of the parties hereto, and this Agreement supersedes all prior agreements, if any, between the parties, all of which are hereby canceled.
f. All of the covenants, conditions and agreements herein, and each of them, are severable. The fact that any term of this Agreement is unenforceable for any reason shall not affect the remainder of this Agreement.
g. This Agreement is binding upon the parties hereto, the members of the companies and their respective heirs, executors, personal representatives, successors and assigns, subject to the provisions on transferability above.
h. This Agreement shall be interpreted in accordance with the laws of the United States and the State of New York, without giving effect to the principles of conflicts of law thereunder.