Kimberlite Digital Marketing Affiliate Program Policies

All Kimberlite Digital Marketing Affiliates are required to complete agreement and remain in compliance with these terms. This list contains everything you need to know to be a Kimberlite Digital Marketing affiliate, including resources, recommendations, and some fun legal stuff.

If you’re not yet part of the Kimberlite Digital Marketing Affiliate Program, you can apply here.

If you ever need anything else or have questions, feel free to reach out to the team at [email protected] Digital Marketing.com

 

Commission

1. Commission Rates. Available commissions are set forth in the Affiliate Tool. Commissions may be based on either purchase or signup (not both), and purchase commissions may be calculated based on monthly or annual purchases at the rates set forth in the Affiliate Tool.
2. Limitations:
3. For purchase commissions, you will receive commission for the first purchase made by a new customer who is not in an active sales process with us at the time of the affiliate link click.

 

1. The customer needs to be an active customer for the locking period in the Affiliate Tool.

 

1. Commissions will still be counted if a user starts on one domain and then signs up or purchases on another Kimberlite Digital Marketing domain.

 

1. Affiliate links may rely on cookies to track referrals. Therefore if cookies get cleared, we may not be able to track these events.
2. Cookie windows are stated in the Affiliate Tool.
3. Only affiliate links can be used to track referrals. Incorrect use of affiliate links will cause inability to track referrals.
4. Fraudulent or stolen attribution is a non payable event. If we suspect fraud (for example, if we see that signups are all from the same city or IP address) we may require you to prove that the referrals are valid.

There are a number of other limitations that may result in commission not being paid – we encourage you to read the Marketing Affiliate Program Agreement for more information on this.

3. Upgrades/downgrades. You do not receive additional commission if a customer upgrades to a higher tiered product in the future. If a customer downgrades, you will receive the commission associated with that downgrade.
4. Attribution. In the event a single customer clicks two different affiliate links, the last affiliate gets the credit. We do, however, reserve the right to modify this in certain circumstances.

 

Promoting Kimberlite Digital Marketing

1. Kimberlite Digital Marketing Branding

Do:

Capitalize the “K, D and S” in “Kimberlite Digital Marketing”. You’d be surprised at how many times that doesn’t happen. Sigh.

You must follow our style guide, our Trademark Usage Guidelines here, and our Content Usage Guidelines here.

Do Not:

Use false or misleading statements on the benefits of using Kimberlite Digital Marketing (e.g. “Get rich quick with Kimberlite Digital Marketing”).

Modify or adjust the Kimberlite Digital Marketing wordmark or sprocket logo in any sort of marketing material you might create, including the creation of any visual badges or dual-logo lockups.

2. What to call yourself

As we have multiple ways to partner with Kimberlite Digital Marketing and several ways to reference those relationships, here are some guidelines around what you can and cannot call yourself within the Kimberlite Digital Marketing Affiliate Program.

Do: Say you’re a “Kimberlite Digital Marketing Marketing Affiliate” or “Marketing Affiliate”.

Do Not: Refer to yourself as a Partner or that you’ve “partnered with Kimberlite Digital Marketing.” This includes press releases, references in videos, listings on your website, or in any other marketing material you may be using.

3. Buying Ads

You will not purchase ads that direct to your site(s) or through an affiliate link that could be considered as competing with Kimberlite Digital Marketing’s own advertising, including, but not limited to, our branded keywords. If running ads, you need to direct the ad to your own website (and not to Kimberlite Digital Marketing.com).

 

Policies that don’t fit into the other buckets

1. Survey Participation: We would encourage you to participate in any affiliate-specific NPS surveys, industry surveys, marketing surveys, etc. as we request.
2. Sharing Placements: When requested, you’ll share the places you’ve used your affiliate link. This includes, but is not limited to, links, screenshots, and email sends.
3. Purchasing Kimberlite Digital Marketing yourself: One of the benefits of the Affiliate Program is we don’t require you to purchase Kimberlite Digital Marketing products. Though if you decide to purchase, we require that you do not use your own affiliate link.
4. App Partner Program: When promoting Kimberlite Digital Marketing for the App Partner Program, you are not allowed to use an affiliate link.
5. Solutions Partner Program: If you’re also part of one of Kimberlite Digital Marketing’s other commission programs, you will only receive commission for either that program or the affiliate program depending on whether you registered the lead or the customer went through your affiliate link. When working with clients, you are not allowed to use your affiliate link. You must join the Solutions Partner Program to refer clients.
6. You must be FTC compliant and disclose in a clear way before the affiliate link that you will receive commission if someone clicks through and purchases.

PLEASE READ THIS MARKETING AFFILIATE PROGRAM AGREEMENT CAREFULLY.

This is a contract between you (the “Affiliate”) and us (“Kimberlite Digital Marketing”). It describes how we will work together and other aspects of our business relationship. It is a legal document so some of the language is necessarily “legalese” but we have tried to make it as readable as possible.

The Marketing Affiliate Program Agreement applies to your participation in our Marketing Affiliate Program (the “Affiliate Program”).  These terms are so important that we cannot have you participate in our Affiliate Program unless you agree to them.

We periodically update these terms. We might also choose to replace these terms in their entirety if, for example, the Affiliate Program changes, ends, or becomes part of an existing program, including our partner programs. If we update or replace the terms we or the Affiliate Tool will let you know via electronic means, which may include an in-app notification or by email. If you don’t agree to the update or replacement, you can choose to terminate as we describe below.

Definitions

“Kimberlite Digital Marketing Affiliate” means a company owned, operated or controlled by Kimberlite Digital Marketing.

“Marketing Affiliate Program” means our marketing affiliate program as described in this Agreement.

“Affiliate Lead” means a customer prospect who clicks on the Affiliate Link that we have made available to you via the Affiliate Tool.

“Affiliate Link” means the unique tracking link you place on your site or promote through other channels.

“Affiliate Policies” means the policies applicable to affiliates which we may make available to you from time to time.

“Affiliate Tool” means the tool that we make available to you upon your acceptance into the Affiliate Program and for you to use in order to participate in the Affiliate Program.

“Agreement” means this Marketing Affiliate Program Agreement and all materials referred or linked to in here.

“Commission” means an amount described in the Affiliate Tool (or if applicable, in the Program Policies) for each Customer Transaction.

“Customer” means the authorized actual user of the Kimberlite Digital Marketing Products who has purchased or signed up for the Kimberlite Digital Marketing products after being an Affiliate Lead.

“Customer Transactions” means those transactions by Affiliate Leads that are eligible for Commission pursuant to the ‘Customer Transactions’ section of this Agreement. Customer Transactions may include customer purchases or customer signups, as further described in the Affiliate Tool.

“Customer Data” means all information that Customer submits or collects via the Kimberlite Digital Marketing Products and all materials that Customer provides or posts, uploads, inputs or submits for public display through the Kimberlite Digital Marketing Products.

“Kimberlite Digital Marketing Content” means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into our services.

“Kimberlite Digital Marketing Products” means both the Subscription Service and Other Products.

“Program Policies Page” means the landing page: https://digitalkimberlite.com/partners/affiliates/program-policies  where we will provide all the up to date guidelines and policies for the Affiliate Program.

“Other Products” means those products and services that we offer, which are not included in the Subscription Service (as detailed below); and, for the purposes of this Agreement, Other Products include all of our marketing software, legacy sales and marketing products, and any implementation, customization, training, consulting, additional support or other professional services, or fees for third-party products or services.

“Subscription Service” means our web-based sales software that is subscribed to, and developed, operated, and maintained by us, accessible via https://digitalkimberlite.com or another designated URL, and add-on products to our sales software. For the purposes of this Agreement, the Subscription Service does not include our legacy sales products, any implementation, customization, training, consulting, additional support or other professional services, or fees for third-party products or services.

“We”, “us”, “our”, and “Kimberlite Digital Marketing” means Kimberlite Digital Marketing, Inc.

“You” and “Affiliate” means the party, other than Kimberlite Digital Marketing, entering into this Agreement and participating in the Affiliate Program.

Non-Exclusivity

This Agreement does not create an exclusive agreement between you and us. Both you and we will have the right to recommend similar products and services of third parties and to work with other parties in connection with the design, sale, installation, implementation and use of similar services and products of third parties.

Affiliate Acceptance

Once you complete an application to become an Affiliate, we will review your application and notify you whether you have been accepted to participate in the Affiliate Program, or not.  Before we accept an application, we may want to review your application with you, so we may reach out to you for more information. We may require that you complete certain requirements or certification(s) before we accept your application. If we do not notify you that you are accepted to participate in the Affiliate Program within thirty (30) days from your application, your application is considered to be rejected.

If you are accepted to participate in the Affiliate Program, then upon notification of acceptance, the terms and conditions of this Agreement shall apply in full force and effect, until terminated, pursuant to the terms set forth below.  Further, you will need to complete any enrollment criteria set out in the Program Policies Page, if applicable. Failure to complete any enrollment criteria within thirty (30) days of your acceptance will result in the immediate termination of this Agreement and you will no longer be able to participate in the Affiliate Program.

Your acceptance and participation in the Affiliate Program does not mean that you will be accepted into any of our Kimberlite Digital Marketing Partner Programs, including our Solutions Partner Program or our App Partner Program. In order to participate in these programs, you will need to apply in accordance with the relevant application procedure.

You will comply with the terms and conditions of this Agreement at all times, including any applicable Program Policies.

Customer Transactions

1. Affiliate Program Limits. Each accepted Affiliate Lead will expire according to the information provided in the Affiliate Tool (or if applicable, in the Program Policies) from the date the Affiliate Lead clicked on the Affiliate Link that was made available by you. We will pay you Commission as described in the Affiliate Tool (or if applicable, in the Program Policies) for each new Customer who completes an applicable Customer Transaction after clicking on an Affiliate Lead made available by you, provided that you remain eligible to receive Commission pursuant to the terms of this Agreement.  The start of the Customer’s subscription is determined by the date of the first purchase or sign up (as applicable) of the Subscription Service by the Customer and you will receive a Commission payment for that Customer Transaction only, regardless of any additional purchases made by that customer during their Subscription Service. For example, if the initial Customer Transaction is for one user of Sales Hub Professional, and there is a subsequent purchase by that same customer for an additional user of Sales Hub Professional for the same subscription, Affiliate will receive Commission for the initial user purchase only. The Affiliate will not be entitled to receive Commission on any additional purchases of Kimberlite Digital Marketing Products by that same Customer.
2. Eligibility. To be eligible for Commission (i) an Affiliate Lead must be accepted and valid in accordance with the ‘Acceptance and Validity’ section, (ii) a Customer Transaction must have occurred, (iii)  a Customer must remain a customer during the locking period in the Affiliate Tool (or if applicable, in the Program Policies). You are not eligible to receive Commission or any other compensation from us based on transactions for Other Products or if: (i) such compensation is disallowed or limited by federal, state or local law or regulation in the United States or the laws or regulations of your jurisdiction; (ii) the applicable Customer objects to or prohibits such compensation or excludes such compensation from its payments to us or Kimberlite Digital Marketing Affiliates; (iii) the Customer has paid or will pay such commissions, referral fees, or other compensation directly to you, (iv) the Commission payment has been obtained by fraudulent means, misuse of the Affiliate Link, in violation of any Affiliate Program Policies that we make available to you, misuse of the Affiliate Tool or by any other means that we deem to breach the spirit of the Marketing Affiliate Program, or (v) the Customer participates in any of our partner programs, including our Agency Partner Program, Sales Referral Partner Program or Sales Solutions Partner Program and is eligible to receive commission in relation to the Customer Transaction under any of these programs. If at any point you are eligible to receive a revenue share payment or commission under another Program at Kimberlite Digital Marketing, that payment amount  will not change based on your participation in the Affiliate Program. For example, you will not be able to receive the Commission set out in this Agreement on any Partner Transaction that was completed whilst participating as a partner in the Solutions Partner Program (as defined in the SolutionsPartner Program Agreement). In competitive situations with other affiliates, we may elect to provide the Commission to the affiliate that we deem to be the most eligible for Commission, at our discretion. We may discontinue Commission payments should any of the eligibility criteria set forth in this subsection fail to be met at any time.
3. Acceptance and Validity. You will only be eligible for a Commission payment for any Customer Transactions that derived from Affiliate Leads generated by the Affiliate Link that we make available to you and are accepted by Kimberlite Digital Marketing. An Affiliate Lead will be considered valid and accepted if, in our reasonable determination: (i) it is a new potential customer of ours, and (ii) is not, at the time of submission or sixty (60) days prior, one of our pre-existing customers, or involved in our active sales process. Notwithstanding the foregoing, we may choose not to accept an Affiliate Lead in our reasonable discretion. If an Affiliate Lead does not purchase the Subscription Service within the time period described on the Affiliate Tool (or if applicable, in the Program Policies) of their first click on the Affiliate Link, you will not be eligible for a Commission payment, even if the Affiliate Lead decides to purchase after the time period has expired.  An Affiliate Lead is not considered valid if it’s first click on the Affiliate Link is after this Agreement has expired or terminated. Engagement with Prospects.  Once we have received the Affiliate Lead information, we may elect to engage with the prospect directly, regardless of whether or not the Affiliate Lead is valid. If an Affiliate Lead is not valid then we may choose to maintain it in our database and we may choose to engage with such Affiliate Lead. Any engagement between Kimberlite Digital Marketing and an Affiliate Lead will be at Kimberlite Digital Marketing’s discretion.
4. Commission and Payment. In order to receive payment under this Agreement, you must have: (i) agreed to the terms of this Agreement (generally completed through the Affiliate Tool); (ii) completed all steps necessary to create your account in the Affiliate Tool in accordance with our directions, (iii) have a valid and up-to-date payment method in the  Affiliate Tool with such account (iv) completed any and all required tax documentation in order for the Affiliate Tool to process any payments that may be owed to you.
5. Requirements for Payment; Forfeiture. Notwithstanding the foregoing or anything to the contrary in this Agreement, if any of the requirements set forth in section 4(a)(i-iv) remain outstanding for six (6) months immediately following the close of a Customer Transaction, then your right to receive Commission arising from any and all Customer Transactions with the associated Customer will be forever forfeited (each, a “Forfeited Transaction”). We will have no obligation to pay you Commission associated with a Forfeited Transaction. Once you comply with all of the requirements in section 5(a)(i-iv), then you will be eligible to receive Commission on Customer Transactions, as long as these Customer Transactions do not involve the same Customer associated with a Forfeited Transaction.
6. Commission Payment. We or the Affiliate Tool will determine the currency in which we pay the Commission, as well as the applicable conversion rate. We will not pay more than one Commission payment or other similar referral fee on any given Customer Transaction (unless we choose to in our discretion).Taxes. You are responsible for payment of all taxes and fees (including bank fees) applicable to the Commission. All amounts payable by us to you are subject to offset by us against any amounts owed by you to us. Commission Amounts. We reserve the right to alter or change the Commission amount as per the Affiliate Tool.

Training and Support

We may make available to you, without charge, various webinars and other resources made available as part of our Affiliate Program. If we make such resources available to you, you will encourage your sales representatives and/or other relevant personnel to participate in training and/or other certifications as we recommend and may make available to you from time-to-time. We may change or discontinue any or all parts of the Affiliate Program benefits or offerings at any time without notice.

Trademarks

You grant to us a nonexclusive, nontransferable, royalty-free right to use and display your trademarks, service marks and logos (“Affiliate Marks”) in connection with the Affiliate Program and this Agreement.

During the term of this Agreement, in the event that we make our trademark available to you within the Affiliate Tool, you may use our trademark as long as you follow the usage requirements in this section.  You must: (i) only use the images of our trademark that we make available to you, without altering them in any way; (ii) only use our trademarks in connection with the Affiliate Program and this Agreement; (iii) comply with our style guide and Trademark Usage Guidelines; and (iv) immediately comply if we request that you discontinue use.  You must not: (i) use our trademark in a misleading or disparaging way; (ii) use our trademark in a way that implies we endorse, sponsor or approve of your services or products; or (iii) use our trademark in violation of applicable law or in connection with an obscene, indecent, or unlawful topic or material.

Proprietary Rights

1. Kimberlite Digital Marketing’s Proprietary Rights.  No license to any software is granted by this Agreement. The Kimberlite Digital Marketing Products are protected by intellectual property laws. The Kimberlite Digital Marketing Products belong to and are the property of us or our licensors (if any). We retain all ownership rights in the Kimberlite Digital Marketing Products. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the Kimberlite Digital Marketing Content, or the Kimberlite Digital Marketing Products in whole or in part, by any means, except as expressly authorized in writing by us. If you wish to use Kimberlite Digital Marketing Content, you must comply with our Content Usage Guidelines here. Kimberlite Digital Marketing, the Sprocket Design, the Kimberlite Digital Marketing logos, and other marks that we use from time to time are our trademarks and you may not use them without our prior written permission, except as otherwise set forth in this Agreement.
   We encourage all customers, affiliates and partners to comment on the Kimberlite Digital Marketing Products, provide suggestions for improving them, and vote on suggestions they like. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Kimberlite Digital Marketing Products, without payment to you.
2. Customer’s Proprietary Rights. As between you and Customer, Customer retains the right to access and use the Customer portal associated with the Kimberlite Digital Marketing Products. For the avoidance of doubt, Customer will own and retain all rights to the Customer Data.

Confidentiality 

As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), (i) whether orally or in writing, that is designated as confidential, and (ii) Kimberlite Digital Marketing customer and prospect information, whether or not otherwise designated as confidential. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party or (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party.  The Receiving Party shall: (i) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses with its own confidential information, but in no event less than reasonable care, (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information of the Disclosing Party to any third party, and (iv) limit access to Confidential Information of the Disclosing Party to its employees, contractors and agents. The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.

Opt Out and Unsubscribing

You will comply promptly with all opt out, unsubscribe, “do not call” and “do not send” requests.  For the duration of this Agreement, you will establish and maintain systems and procedures appropriate to effectuate all opt out, unsubscribe, “do not call” and “do not send” requests.

Term and Termination

1. Term. This Agreement will apply for as long as you participate in the Affiliate Program, until terminated.
2. Termination Without Cause.  Both you and we may terminate this Agreement on fifteen (15) days written notice to the other party.
3. Termination for Agreement Changes. If we update or replace the terms of this Agreement, you may terminate this Agreement on five (5) days written notice to us, provided that you send us written notice within ten (10) days after we send you notice of the change.
4. Termination for Cause.  We may terminate this Agreement: (i) upon thirty (30) days’ notice to you of a material breach if such breach remains uncured at the expiration of such period, (ii) upon fifteen (15) days notice to you of non-payment of any amount due to us if such amount remains unpaid at the expiration of such period, (iii) immediately, if you become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, (iv) immediately, if you breach the terms applicable to your subscription with us (if you have one), including if you default on your payment obligations to us or our affiliate, or (v) immediately, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
5. Effects of Expiration/Termination.  Expiration of this Agreement, and termination of this Agreement: (i) without cause by us,(ii) by you with cause, (iii) by you according to the ‘Termination for Agreement Changes’ section, shall not affect our obligation to pay you a Commission, so long as the related payment by the Customer Transaction is recognized by us within thirty (30) days after the date of such termination or expiration and provided that in no event shall you be entitled to payment of Commission under this Agreement if you are eligible to receive a revenue share payment under the Solutions Partner Program Agreement. We will not pay you fees on Customer Transactions recognized by us after thirty (30) days after the date of such termination or expiration set out above.  Provided however, in the event of termination without cause by you, or for cause by us, our obligation to pay and your right to receive any Commission will terminate upon the date of such termination, regardless of whether you would have otherwise been eligible to receive Commission prior to the date of termination. Except as expressly set forth in this section, you are not eligible to receive a Commission payment after expiration or termination of this Agreement. Upon termination or expiration, you will discontinue all use of and delete the Affiliate Tool that we make available to you for your participation in the Affiliate Program. Upon termination or expiration, an Affiliate Lead is not considered valid, and we may choose to maintain it in our database and engage with such a prospect.
   Upon termination or expiration, you will immediately discontinue all use of our trademark and references to this Affiliate Program from your website(s) and other collateral. For the avoidance of doubt, termination or expiration of this Agreement shall not cause a Customer’s subscription agreement to be terminated.

Affiliate Representations and Warranties

You represent and warrant that: (i) you have all sufficient rights and permissions to participate in the Affiliate Program and to provision Kimberlite Digital Marketing with Affiliate Lead’s for our use in sales and marketing efforts or as otherwise set forth in this Agreement, (ii) your participation in this Affiliate Program will not conflict with any of your existing agreements or arrangements; and (iii) you own or have sufficient rights to use and to grant to us our right to use the Affiliate Marks.

You further represent and warrant that: (i) you will ensure that you are compliant with any trade or regulatory requirements that may apply to your participation in the Affiliate Program (for example, by clearly stating you are a Kimberlite Digital Marketing Affiliate on any website(s) you own where you make an Affiliate Link available); (ii) you will accurately provide in the Affiliate Tool all websites and domains you own where you intend to use Affiliate Links to generate Affiliate Leads; (iii) you will not purchase ads that direct to your site(s) or through an Affiliate Link that could be considered as competing with Kimberlite Digital Marketing’s own advertising, including, but not limited to, our branded keywords; (iv) you will not participate in cookie stuffing or pop-ups, false or misleading links are strictly prohibited; (v) you will not attempt to mask the referring URL information; (vi) you will not use your own Affiliate Link to purchase Kimberlite Digital Marketing products for yourself; and (vii) you will not use any mechanisms to deliver leads other than through an intended consumer. This includes sourcing leads through compilations of personal data such as phonebooks, using fake redirects or other tools or automation devices to generate leads (including but not limited to robots, lframes, or hidden frames), or offering incentives to encourage purchases or signups.

Indemnification

You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (a) your participation in the Affiliate Program, (b) our use of the prospect data you provided us, (c) your noncompliance with or breach of this Agreement, (d) your use of the Affiliate Tool, or (e) our use of the Affiliate Marks. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.

Disclaimers; Limitations of Liability

1. Disclaimer of Warranties. WE AND OUR AFFILIATED COMPANIES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE KIMBERLITE DIGITAL MARKETING PRODUCTS, KIMBERLITE DIGITAL MARKETING CONTENT, THE AFFILIATE PROGRAM OR THE AFFILIATE TOOL FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) AND THE AFFILIATE TOOL MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE KIMBERLITE DIGITAL MARKETING PRODUCTS AND AFFILIATE TOOL ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE KIMBERLITE DIGITAL MARKETING PRODUCTS AND THE AFFILIATE TOOL INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
2. No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITIES.
3. Limitation of Liability. IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY, THE PARTIES AGREE THAT OUR AGGREGATE LIABILITY WILL BE LIMITED TO THE TOTAL COMMISSION AMOUNTS YOU HAVE ACTUALLY EARNED FOR THE RELATED CUSTOMER TRANSACTIONS IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM.
4. Affiliate Tool. WE DISCLAIM ALL LIABILITY WITH RESPECT TO THE AFFILIATE TOOL THAT YOU USE.  WE DO NOT PROMISE TO MAKE THE AFFILIATE TOOL AVAILABLE TO YOU, AND WE MAY CHOOSE TO DO SO, OR NOT TO DO SO, IN OUR DISCRETION.
5. Cookie Duration. COOKIES USED AS PART OF THE AFFILIATE TOOL HAVE A SET DURATION. IF A POTENTIAL CUSTOMER CLEARS THEIR COOKIES DURING THIS PERIOD, KIMBERLITE DIGITAL MARKETING SHALL NOT BE LIABLE FOR ANY COMMISSIONS THAT MAY HAVE BEEN OWED TO YOU.

General

1. Amendment; No Waiver. We may update and change any part or all of this Agreement, including by replacing it in its entirety. If we update or change this Agreement, the updated Agreement will be made available to you via the Affiliate Tool and/or by email. The updated Agreement will become effective and binding on the next business day after we or the Affiliate Tool have notified you. When we change this Agreement, the “Last Modified” date above will be updated to reflect the date of the most recent version at https://legal.Kimberlite Digital Marketing.com/marketing-affiliate-program-agreement. We encourage you to review this Agreement periodically.  If you don’t agree to the update, change or replacement, you can choose to terminate as we describe above. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
2. Applicable Law. This Agreement shall be governed by the laws of the State of Illinois, without regard to the conflict of laws provisions thereof. In the event either of us initiates an action in connection with this Agreement or any other dispute between the parties, the exclusive venue and jurisdiction of such action shall be in the state and federal courts in Cook County Illinois.
3. Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
4. Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
5. Relationship of the Parties. Both you and we agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of this Agreement.
6. Compliance with Applicable Laws.  You shall comply, and shall ensure that any third parties performing sales or referral activities on your behalf comply, with all applicable foreign and domestic laws (including without limitation export laws and laws applicable to sending of unsolicited email), governmental regulations, ordinances, and judicial administrative orders. You shall not engage in any deceptive, misleading, illegal or unethical marketing activities, or activities that otherwise may be detrimental to us, our customers, or to the public. Export laws and regulations of the United States and any other relevant local export laws and regulations may apply to the Kimberlite Digital Marketing Products. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the US Department of the Treasury.  You will not directly or indirectly export, re-export, or transfer the Kimberlite Digital Marketing Products to prohibited countries or individuals or permit use of the Kimberlite Digital Marketing Products by prohibited countries or individuals.
7. Severability. If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
8. Notices. Notice will be sent to the contact address set forth herein (as such may be changed by notice given to the other party), and will be deemed delivered as of the date of actual receipt.
   To Covalent Ventures, Inc dba Kimberlite Digital Marketing, PO Box 2562, Northbrook, IL 60065
   To you: your address as provided in our affiliate account information for you.
   We may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you.
9. Entire Agreement. This Agreement is the entire agreement between us for the Affiliate Program and supersedes all other proposals and agreements, whether electronic, oral or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance or website. Our obligations are not contingent on the delivery of any future functionality or features of the Kimberlite Digital Marketing Products or dependent on any oral or written public comments made by us regarding future functionality or features of the Kimberlite Digital Marketing Products. It is the express wish of both you and us that this Agreement and all related documents be drawn up in English. We might make versions of this Agreement available in languages other than English. If we do, the English version of this Agreement will govern our relationship and the translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.
10. Assignment. You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of its assets, change of control or operation of law, without our prior written consent. We may assign this Agreement to any affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.
11. No Third Party Beneficiaries.  Nothing in this Agreement, express or implied, is intended to or shall confer upon any person or entity (other than the parties hereto) any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
12. Program Policies Page. We may change the Program Policies from time to time. Your participation in the Affiliate Program is subject to the Program Policies, which are incorporated herein by reference
13. No Licenses. We grant to you only the rights and licenses expressly stated in this Agreement, and you receive no other rights or licenses with respect to us, the Kimberlite Digital Marketing Products, our trademarks, or any other property or right of ours.
14. Sales by Kimberlite Digital Marketing. This Agreement shall in no way limit our right to sell the Kimberlite Digital Marketing Products, directly or indirectly, to any current or prospective customers.
15. Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.
16. Survival. The following sections shall survive the expiration or termination of this Agreement: ‘Commission and Payment’, ‘Proprietary Rights’, ‘Confidentiality’, ‘Effects of Termination/Expiration’, ‘Indemnification’, ‘Disclaimers; Limitation of Liability’, ‘Non-Solicitation’ and ‘General’.

Exhibit A

Kimberlite Digital Marketing – GDPR Data Processing Addendum (Affiliates)

This Data Processing Addendum (“Addendum”) sets out the terms that apply as between Kimberlite Digital Marketing and Marketing Affiliate when processing EEA personal data in connection with the Marketing Affiliate Program.  This Addendum forms part of the Marketing Affiliate Program Agreement. Capitalized terms used in this Addendum shall have the meanings given to them in the Marketing Affiliate Program Agreement (the “Agreement”) unless otherwise defined in this Addendum.

1. Definitions: (a) “controller,” “processor,” “data subject,” and “processing” (and “process”) shall have the meanings given to them in Applicable Data Protection Law; (b) “Applicable Data Protection Law” means any and all applicable privacy and data protection laws and regulations applicable to the Personal Data in question, including, where applicable, EU Data Protection Law (in each case, as may be amended, superseded or replaced from time to time); (c) “EU Data Protection Law” means: (i) the EU General Data Protection Regulation (Regulation 2016/679) (“GDPR”); and (ii) the EU e-Privacy Directive (Directive 2002/58/EC); and (iii) any national data protection laws made under or pursuant to clause (i) or (ii); and (d) “Personal Data” means any information relating to an identified or identifiable natural person to the extent that such information is protected as personal data under Applicable Data Protection Law.
2. Purposes of processing.  The parties acknowledge that in connection with the Marketing Affiliate Program, each party may provide or make available to the other party Personal Data.  Each party shall process such data: (i) for the purposes described the Agreement; and/or (ii) as may otherwise be permitted under Applicable Data Protection Law.
3. Relationship of the parties. Each party will process the copy of the Personal Data in its possession or control as an independent controller (not as a joint controller with the other party). For the avoidance of doubt and without prejudice to the foregoing, Kimberlite Digital Marketing shall be an independent controller of any Personal Data that it receives or shares with Affiliate in connection with the Marketing Affiliate Program.
4. Compliance with law. Each party shall separately comply with its obligations under Applicable Data Protection Law and this Addendum when processing Personal Data.  Neither party shall be responsible for the other party’s compliance with Applicable Data Protection Law. In particular, each party shall be individually responsible for ensuring that its processing of the Personal Data is lawful, fair and transparent, and shall make available to data subjects a privacy statement that fulfils the requirements of Applicable Data Protection Law.
5. International transfers.  Where Applicable Data Protection Law in the European Economic Area (“EEA”), and/or its member states, United Kingdom and/or Switzerland (collectively for the purposes of this Addendum, the “EU’), applies to the Personal Data (“EU Personal Data”), neither party shall process any EU Personal Data (nor permit any EU Personal Data to be processed) in a territory outside of the EU  unless it has taken such measures as are necessary to ensure the transfer is in compliance with Applicable Data Protection Law. To the extent a Marketing Affiliate transfers EU Personal Data to Kimberlite Digital Marketing and Kimberlite Digital Marketing is located in a territory outside the EU that does not provide adequate protection for Personal Data (as determined by Applicable Data Protection Law), Kimberlite Digital Marketing agrees to abide by and process such EU Personal Data in accordance with the Standard Contractual Clauses for Controllers as approved by the European Commission and available at http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32004D0915(as amended, superseded or updated from time to time) (“Model Clauses”), which are incorporated by reference in, and form an integral part of, this Addendum. Kimberlite Digital Marketing agrees that it is a “data importer” and the Marketing Affiliate is the “data exporter” under the Model Clauses (notwithstanding that Kimberlite Digital Marketing may be an entity located outside of the EEA).
6. Security.  Each party shall implement and maintain all appropriate technical and organizational measures to protect any copies of the Personal Data in their possession or control from (i) accidental or unlawful destruction, and (ii) loss, alteration, or unauthorized disclosure or access (a “Security Incident”) and to preserve the security and confidentiality of such Personal Data. Each party shall notify the other party without undue delay on becoming aware of any breach of EU Data Protection Law/Applicable Data Protection Law.

Last updated: April 23, 2021

Please read these Terms of Use (“Terms”, “Terms of Use”) carefully before using the https://digitalkimberlite.com website (the “Service”) operated by Kimberlite Digital Marketing (“us”, “we”, or “our”).

Your access to and use of the Service is conditioned on your acceptance of and compliance with these Terms. These Terms apply to all visitors, users and others who access or use the Service.

By accessing or using the Service you agree to be bound by these Terms. If you disagree with any part of the terms then you may not access the Service.

Terms of Use and Conditions for Services Provided

 

These Terms of Use (“Terms” and/or “Agreement”) are a legally binding agreement between you and your Affiliates (together “Customer” “you” or “your”) and Covalent Ventures, Inc. d/b/a Kimberlite Digital Marketing, including all of its subsidiaries, Representatives and Affiliates, (together, “Kimberlite”, “Company”, “we” or “our”) (Customer and Kimberlite may be referred to collectively as the “Party” or “Parties”). The Terms set forth your rights and responsibilities when you use any of the tools, features, and services (collectively, the “Services”) provided through any Kimberlite website or mobile site, including, without limitation, Kimberlite Digital Marketing and Musslewhite Automotive Solutions, and any other site operated or licensed for your use by Kimberlite (together, “Sites”) and web-based and mobile applications (“Apps”) that reference or link to these Terms.

 

You agree to be bound by these Terms and our Privacy Policy (“Privacy Policy”) when you (i) access or use one or all of the Services and/or (ii) create an account (“Account”) with Kimberlite.

Please note that these Terms contain an arbitration clause and class action waiver. You agree to resolve all disputes through binding arbitration and you waive any right to have a judge or jury decide those disputes. You also waive your right to participate in class actions, class arbitrations, and representative actions.

1. Definitions. Capitalized terms used herein have the following meanings:

 

• “Affiliates” with respect to a party to these Terms, being Kimberlite or Customer, means any entity that, directly or indirectly, through one or more intermediaries, controls or is controlled by or is under common control with such Party. “Control” means the direct or indirect ownership of fifty percent (50%) or greater of the voting interest (stock or otherwise) of such entity or possession of the power to direct or cause the direction of the policies and management of the subject entity, whether through the ownership of voting securities, by contract or otherwise. Affiliates shall also have the meaning of any third-party referral partner working under a contract agreement with Kimberlite as an independent contractor earning income, by commission or otherwise, from Kimberlite but not under the direct employment of Kimberlite.

 

• “Information” means any and all (i) information, services, including third party services, and data disclosed by or on behalf of Kimberlite Digital Marketing or its Representatives to you or your Representatives, or learned or observed by Kimberlite or its Representatives in connection with Services provided, whether tangible or intangible and in whatever form or medium disclosed (whether written, electronic, video, oral or otherwise), and whether or not designated as “confidential,” in connection or associated with the Services, including analyses, interpretations, compilations, reports, data, diagrams, drawings, models, financial data, economic data, commercial data, contractual data and other information and data (including the existence of the discussions between the you and Kimberlite) relating to Services and (ii) notes, reports, analyses, compilations of data and information, studies, interpretations and other documents prepared by you or your Representatives which contain, reflect or are based upon, in whole or in part, information, Intellectual Property and data disclosed by or on behalf of Kimberlite or its Representatives. Information also includes data, if any, licensed from third parties (such third-party data being herein referred to collectively as “Third Party Data”).  The Third Party Data may be subject to licenses that may impose various restrictions and limitations on Kimberlite’s ability to show, display, divulge or otherwise disclose the Third Party Data to you; nothing herein requires Kimberlite to disclose any Third Party Data in any manner that would violate applicable restrictions or limitations.

 

• “Intellectual Property” means any and all of the following in any jurisdiction throughout the world:

 

1. Trademarks and service marks, including all applications and registrations, and the goodwill connected with the use of and symbolized by the foregoing, copyrights, including all applications and registrations related to the foregoing, trade secrets and confidential know-how, software and application integration methods, descriptions, recipes and algorithms, patents and patent applications, websites and internet domain name registrations, Modifications, other intellectual property and related proprietary rights, interests and protections (including all rights to sue and recover and retain damages, costs and attorneys’ fees for past, present, and future infringement, and any other rights relating to any of the foregoing).

 

• “Modifications” means any additions to, updates of, integrations with, improvements on, bug patches, new versions of, or other modifications to the licensed Intellectual Property, made by either party during this Agreement.

 

• “Representatives” means equity owners, directors, managers, officers, employees, lenders or potential lenders, financial advisors, tax advisors, consultants, attorneys, accountants, agents and other representatives of a party to these Terms and its Affiliates.

2. No Liability. By Execution of the Proposal to which these Terms and Conditions are attached, the Customer acknowledges and agrees that Kimberlite will have no liability to Customer and Customer hereby relieves Kimberlite for any liability whatsoever in connection with the following with respect to the Services or otherwise:
   1. Kimberlite has no control over the policies of search engines with respect to the type of sites and/or content that they accept now or in the future. The Customer’s website may be excluded from any directory or search engine at any time at the sole discretion of the search engine or directory.

1. 1. Due to the competitiveness of some keywords/phrases, ongoing changes in search engine ranking algorithms, and other competitive factors, Kimberlite does not guarantee #1 positions or consistent top 10 positions for any particular keyword, phrase, search term or other configuration.
   2. Google has been known to hinder the rankings of new websites (or pages) until they have proven their viability to exist for more than 6 months. This is referred to as the “Google Sandbox”. Kimberlite assumes no liability for ranking/traffic/indexing issues related to Google Sandbox or other penalties.
   3. Occasionally, search engines will drop listings for no apparent or predictable reason. Often, the listing will reappear without any additional SEO.
   4. Linking to “bad neighborhoods” or getting links from “link farms” can seriously damage all SEO efforts. Kimberlite does not assume liability for the Customer’s choice to link to or obtain a link from any particular website without prior consultation.
   5. Kimberlite is not responsible for changes made to the Customer’s website by other parties that adversely affect the search engine rankings of the Customer’s web site.
   6. Customer guarantees any elements of text, graphics, photos, designs, trademarks, or other artwork provided to Kimberlite for inclusion on the website above are owned by Customer, or that Customer has received permission from the rightful owner(s) to use each of the elements, and will hold harmless, protect, and defend Kimberlite and its subcontractors from any liability or suit and all costs related thereto including attorneys’ fees arising directly or indirectly from the use of such elements.
   7. Kimberlite is not responsible for the Customer overwriting SEO work to the Customer’s site. (e.g., Customer/webmaster uploading over work already provided/optimized).
   8. You are responsible for safeguarding the password that you use to access the Service and for any activities or actions under your password, whether your password is with our Service or a third-party service.
   9. Our Service may contain links to third-party web sites or services that are not owned or controlled by Kimberlite. Kimberlite has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third-party web sites or services. You further acknowledge and agree that Kimberlite shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such web sites or services. We strongly advise you to read the terms and conditions and privacy policies of any third-party web sites or services that you visit.

3. Intellectual Property.
4. Preexisting Intellectual Property. Except for rights expressly granted under these Terms, each party will retain exclusive, interest in, and ownership of, its Intellectual Property developed before this Agreement or developed outside the scope of this Agreement.

 

1. Independently Developed Intellectual Property. Any Intellectual Property developed solely by a party under this Agreement without the participation of the other party is and will remain the sole and exclusive property of the developing party.

 

• Jointly Developed Intellectual Property. In the event that the parties jointly develop Intellectual Property, the parties will engage in good faith negotiations to establish their respective rights. In the event the parties cannot reach an agreement with regard to such jointly developed property, each party will have equal ownership and rights in such intellectual property, without further obligation and without a duty to account to the other party.

 

1. Retention of Ownership of Licensed Intellectual Property. Kimberlite retains all interest in and ownership of the Licensed Intellectual Property, except for the rights granted to Customer under the License Grant section of this Agreement. Customer’s use of the Licensed Intellectual Property and any good will accrued is solely for Customer’s benefit.

 

1. Ownership of Modifications and New Intellectual Property. Kimberlite shall grant to Customer, a non-exclusive, royalty-free license for any Modifications Kimberlite makes or other Intellectual Property Kimberlite develops during the Term and in connection with this Agreement, for the remaining length of this Agreement and under the same terms of this Agreement.

 

1. Modifications and New Intellectual Property by Customer. Customer shall assign to Kimberlite all interest it has in any Modifications Customer makes or other Intellectual Property Customer develops during the Term and in connection with this Agreement. In no event shall Customer retain ownership any Modifications or Intellectual Property developed by Customer during the term of this Agreement through the use and analysis of software licensed to Customer by Kimberlite.

 

• Licensed Back to Customer. Kimberlite shall grant-back to Customer, a non-exclusive, royalty-free license to any Modifications and other Intellectual Property assigned to Kimberlite under these Terms, for the remaining Term and under the same terms of this Agreement.

4. License Grant. Only a license is granted for the licensed software, the licensed software is not sold. Kimberlite grants to you by these Terms, a revocable, non-transferable, non-exclusive license to use the licensed software in object code as installed in or upon installation of the software for the Services, provided you comply with all terms and conditions of these Terms.

1. Covenant Not to Compete.  Customer agrees that at no time during the term of this Agreement will Customer engage in any business activity which is substantially similar to the business model developed by Kimberlite and in direct competition with Kimberlite implementing information and knowledge acquired through access to Kimberlite Intellectual Property acquired by Customer by and through this Agreement.

Further, for a period of one (1) year immediately following the termination of this Agreement, Customer will not, for Customer or on behalf of any other person or business enterprise, engage in any business activity which competes with Kimberlite.

6. Not Work for Hire. Work performed by Kimberlite is not considered work made for hire or work for hire. Ownership, knowledge and intellectual property of the algorithms, methods, techniques and technology used to provide services and obtain desired results is solely owned by the provider, Kimberlite. None of the services performed by Kimberlite shall be deemed work product. All of the services performed are proprietary knowledge and skill of the provider. All products are licensed to the client and may not be reverse engineered or duplicated by client.  

 

7. Third Party Expenses. In connection with the Services, Kimberlite may incur third-party expenses on behalf of Customer for events, advertising or marketing (“Marketing Expenses”).  All such Marketing Expenses shall be submitted by Kimberlite in advance to Customer prior to authorizing or undertaking such expenditures.  Customer shall be solely responsible for payment of the Marketing Expenses, which shall be invoiced directly to Customer.

 

8. Customer Confidential Information. Kimberlite acknowledges that it may come into the possession of confidential information of Customer and/or its patients (“Confidential Information”) during the course of this engagement.  Kimberlite will maintain in strict confidence and not disclose to any party any disclosure of Customer’s Confidential Information.  Kimberlite’s obligations of confidentiality shall not, however, apply to information: a) which is, or becomes known to the public domain through no fault of Kimberlite; b) which was known by Kimberlite prior to Customer’s disclosure, as shown by written records; c) which is acquired or received by Kimberlite from a third party which has not derived such information from Customer; or d) which is specifically released in writing from confidential status by Customer.

 

9. Customer Contacts. From time to time, at Kimberlite’s request, Customer agrees to provide Kimberlite the names and contact information of current or former customers for the purpose of permitting Kimberlite to interview them about their experiences as customers.  Prior to supplying those names and contact information, Customer shall contact the persons and obtain their consent to be contacted by Kimberlite.  Customer shall not provide to Kimberlite, and Kimberlite shall not request from Customer, any confidential information protected by state and federal privacy laws.  Customer shall at all times be responsible for compliance with all applicable state and federal privacy laws.

 

10. Termination. Kimberlite may terminate or suspend access to its Service immediately, without prior notice or liability, for any reason whatsoever, including without limitation if you breach the Terms.

All provisions of the Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

We may terminate or suspend your account immediately, without prior notice or liability, for any reason whatsoever, including without limitation if you breach the Terms.

Upon termination, your right to use the Service will immediately cease. If you wish to terminate your account, you may simply discontinue using the Service.

11. Disclaimer. Your use of the Service is at your sole risk. The Service is provided on an “AS IS” and “AS AVAILABLE” basis. The Service is provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, non-infringement or course of performance.

 

To the extent permitted by law, in no event will Kimberlite or the Kimberlite Representatives be liable to you or to any third party for: (1) indirect, consequential, special, incidental, exemplary, or punitive damages, under any legal theory (including, without limitation, by tort, negligence, contract, or other), arising from or connected to the Services, Terms, Content, or Privacy Policy; (2) any costs of procuring any substitute goods, technology, or services; or (3) any damages whatsoever that in the aggregate exceed the greater of (a) the amount actually paid by you (if any) to Kimberlite for use of the applicable Services in the immediately previous twelve (12) month period or (b) US $100.00.

Some jurisdictions do not allow the exclusions or limitations set forth above, in which case, the full extent of the above exclusions and limitations may not apply.

12. Changes to Terms. Kimberlite reserves the right, at its sole discretion, to modify or replace these Terms at any time. If a revision is material we will try to provide at least 30 days notice prior to any new terms taking effect. What constitutes a material change will be determined at our sole discretion. By continuing to access or use our Service after those revisions become effective, you agree to be bound by the revised terms. If you do not agree to the new terms, please stop using the Service.

 

13. EXCEPT AS OTHERWISE EXPRESSLY AGREED TO IN WRITING BY THE PARTIES AS PART OF THIS AGREEMENT, KIMBERLITE MAKES NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES TO CUSTOMER OF ANY KIND, EITHER EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, OR OTHER WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE).  UNDER NO CIRCUMSTANCES WILL KIMBERLITE DIGITAL MARKETING BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES RELATING TO LOSS OF PROFIT, LOSS OF INCOME OR REVENUE, OR LOSS OF GOODWILL, WHETHER AS A RESULT OF ERRORS OR OMISSIONS.

IN NO EVENT SHALL KIMBERLITE BE LIABLE TO CUSTOMER FOR ANY DAMAGES IN EXCESS OF AMOUNTS PAID BY CUSTOMER FOR THE SERVICES REGARDLESS OF WHETHER THE CUSTOMER INCURS DAMAGES FOR BREACH OF CONTRACT OR ANY OTHER ERROR OR OMISSION WITH RESPECT TO THE SERVICES.  THE FOREGOING CONSTITUTES KIMBERLITE’S SOLE OBLIGATION AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH BY KIMBERLITE OF THIS AGREEMENT, INCLUDING ANY ERROR AND/OR ANY OMISSION, EITHER DIRECTLY OR THROUGH A FAILURE OF PERFORMANCE BY ANY VENDOR.

14. Entire Agreement. This Agreement and the Proposal to which it is attached constitute the entire agreement between the Customer and Kimberlite.  This is not an offer, and no additional or contradictory terms contained in a purchase order or confirmation will be accepted, except in a writing signed by an officer of Kimberlite.  This Agreement will be governed by and construed in accordance with the laws of the State of Illinois without regard to its conflicts of law principles.

 

15. Arbitation Agreement and Class Action Waiver. Kimberlite and Customer each agree to resolve any and all disputes and claims through binding individual arbitration, unless you expressly reject this arbitration provision in writing and within 30 days in accordance with subsection (J) below. “Disputes and claims” shall be broadly construed to include past, current, and/or future claims that relate in any way to these Terms, your use of the Services, and/or rights of privacy and/or publicity. However, to the extent you have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in any state or federal court in the State of Illinois.

 

You and Kimberlite each waive the right to a trial by jury or to participate in a class action. Any arbitration under this provision will take place on an individual basis — class arbitrations and class actions are not permitted. You also agree not to participate in claims against Kimberlite brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account. However, either party may bring an individual action in small claims court. If, however, you or we transfer or appeal the small claim to a different court, we reserve our right to elect arbitration.

 

Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery, and is subject to limited review by courts. Arbitrators can award the same damages and relief that a court can award, including attorneys’ fees where permitted by law.

 

The arbitration shall be administered by the American Arbitration Association in accordance with its Consumer Arbitration Rules.

 

Any arbitration hearing that you attend must take place at a location reasonably convenient to your residence.

 

You and Kimberlite will bear the administrator and arbitrator fees that each party is normally required to pay under the rules and law applicable to the proceeding. Each party will bear the expense of its own attorneys, experts, and witnesses, except where applicable law and/or the Agreement allows a party to recover attorney’s fees from the other party.

 

 

The Federal Arbitration Act (“FAA”) governs this arbitration agreement. The arbitrator shall apply applicable substantive law consistent with the FAA and applicable statutes of limitations and claims of privilege. The arbitrator shall not apply federal or state rules of civil procedure or evidence. The arbitrator will not have authority to award damages, remedies, or awards that conflict with these Terms, unless otherwise provided by applicable law. Either party may make a timely request for a brief written explanation of the basis for the arbitration award. Judgment on the arbitrator’s award may be entered in any court with jurisdiction. Otherwise, the award and the arbitration proceeding shall be kept confidential. The arbitrator’s decision is final and binding, except for any right of appeal provided by the FAA. Either party can appeal the award to a three-arbitrator panel administered by the administrator. The costs of such appeal will be borne by the appealing party, unless applicable law or the administrator’s rules provide otherwise.

 

This arbitration provision survives the termination of your relationship with Kimberlite and/or your use of the Services. In the event of a conflict between this arbitration provision and the applicable arbitration rules or other provisions of the Terms, or any other agreement between us, this arbitration provision will govern any Dispute or Claim between you and Kimberlite, as defined in these Terms. If a court or arbitrator deems any part of this arbitration provision invalid or unenforceable under any law or statute consistent with the FAA, the remaining parts of this arbitration provision shall be enforceable despite such invalidity; however, if the prohibition of class relief and proceedings in subsection (B) is found to be unenforceable or void in any proceeding, then this entire arbitration provision (except for this sentence) shall be null and void with respect to such proceeding, subject to the right to appeal such limitation or voiding.

 

In order to reject this provision, Kimberlite must receive a signed writing (“Rejection Notice”) from you within 30 days of the date that you first accept these Terms (unless a longer period is required by applicable law). The Rejection Notice must include your (i) name, (ii) account number or username, (iii) mailing address, and (iv) a statement that you do not wish to resolve disputes with Kimberlite through arbitration, and must be mailed to Kimberlite via certified mail, return receipt requested. Rejecting the arbitration provision will not affect any other aspect of the Terms, nor will it affect any other existing or future arbitration agreement between you and Kimberlite.

 

 

Contact Us. If you have any questions about these Terms, please contact us at ___________.

 

 

 

Last updated: February 22, 2020

Kimberlite Digital Marketing (“us”, “we”, or “our”) operates the Kimberlite Digital Marketing website (the “Service”).

This page informs you of our policies regarding the collection, use and disclosure of Personal Information when you use our Service.

We will not use or share your information with anyone except as described in this Privacy Policy.

We use your Personal Information for providing and improving the Service. By using the Service, you agree to the collection and use of information in accordance with this policy. Unless otherwise defined in this Privacy Policy, terms used in this Privacy Policy have the same meanings as in our Terms and Conditions, accessible at https://digitalkimberlite.com

Information Collection And Use

While using our Service, we may ask you to provide us with certain personally identifiable information that can be used to contact or identify you. Personally identifiable information (“Personal Information”) may include, but is not limited to:

• Name
• Email address
• Telephone number
• Address

Log Data

We collect information that your browser sends whenever you visit our Service (“Log Data”). This Log Data may include information such as your computer’s Internet Protocol (“IP”) address, browser type, browser version, the pages of our Service that you visit, the time and date of your visit, the time spent on those pages and other statistics.

Cookies

Cookies are files with small amount of data, which may include an anonymous unique identifier. Cookies are sent to your browser from a web site and stored on your computer’s hard drive.

We use “cookies” to collect information. You can instruct your browser to refuse all cookies or to indicate when a cookie is being sent. However, if you do not accept cookies, you may not be able to use some portions of our Service.

Service Providers

We may employ third party companies and individuals to facilitate our Service, to provide the Service on our behalf, to perform Service-related services or to assist us in analyzing how our Service is used.

These third parties have access to your Personal Information only to perform these tasks on our behalf and are obligated not to disclose or use it for any other purpose.

Security

The security of your Personal Information is important to us, but remember that no method of transmission over the Internet, or method of electronic storage is 100% secure. While we strive to use commercially acceptable means to protect your Personal Information, we cannot guarantee its absolute security.

Links To Other Sites

Our Service may contain links to other sites that are not operated by us. If you click on a third party link, you will be directed to that third party’s site. We strongly advise you to review the Privacy Policy of every site you visit.

We have no control over, and assume no responsibility for the content, privacy policies or practices of any third party sites or services.

Children’s Privacy

Our Service does not address anyone under the age of 18 (“Children”).

We do not knowingly collect personally identifiable information from children under 18. If you are a parent or guardian and you are aware that your child has provided us with Personal Information, please contact us. If we discover that a child under 18 has provided us with Personal Information, we will delete such information from our servers immediately.

Compliance With Laws

We will disclose your Personal Information where required to do so by law or subpoena.

Changes To This Privacy Policy

We may update our Privacy Policy from time to time. We will notify you of any changes by posting the new Privacy Policy on this page.

You are advised to review this Privacy Policy periodically for any changes. Changes to this Privacy Policy are effective when they are posted on this page.

Contact Us

If you have any questions about this Privacy Policy, please contact us.