Last updated: April 23, 2021
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.
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.
- 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:
- 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.
- 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:
- 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.
- 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.
- 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.
- Occasionally, search engines will drop listings for no apparent or predictable reason. Often, the listing will reappear without any additional SEO.
- 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.
- 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.
- 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.
- 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).
- 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.
- 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.
- Intellectual Property.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
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.
- 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.
- 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.
- 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.
- 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 ___________.