This Agreement (this "Agreement") binds the Customer and Service Provider (both as defined below) upon signature by the Customer and acceptance by Service Provider on Service Provider’s order form immediately upon such purchase and acceptance (the "Effective Date"). The “Service Provider” in this Agreement is Kristin Mark Digital LTD, a United Kingdom Limited Company [Company Number: 07418628, VAT: GB101965825] The “Customer” shall be the customer who is the undersigned on Product & Service Provider’s order form.
WHEREAS Service Provider has the capability and capacity to provide certain products, services, including but not limited to themes, online training, coaching, developing, consulting, marketing and otherwise assisting Customers’ needs with their business, and;
WHEREAS Customer desires to retain Service Provider to provide said services, and Service Provider is willing to perform such services under the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other goods and valuable consideration, the purchase receipt and sufficiency of which are hereby acknowledged, Service Provider and Customer agree as follows:
AMENDMENTS, Kristin Mark Digital LTD may update these Terms and our product feature and functionality at any time, without notification to you, and you should review these Terms and products specifications from time to time by accessing this webpage. Your continued use of a Products and Service will be deemed irrevocable acceptance of any such revisions.
1. Theme Purchases
All themes are licensed to use for a single store or domain only, whether the themes are published or not.
If you purchase a Product, Kristin Mark Digital Ltd. grants you (the “Customer”), a non-exclusive worldwide license to use such Product to create a single End Product, not for re-use by any agencies (purchases post 21st of June, 2022).
Each Product license permits the installation of the Product once, on one domain. If you wish to switch your theme license between designs by downloading another 1 of our 9 designs which you entitled to, just let us know via our support ticket system and we will help you do so.
Licenses are transferable from one theme pre-set design to another. If proof is not provided that the theme license has been removed from one domain to place on another, then an additional license or licenses will need to be purchased.
You will be entitled to ongoing theme updates of the theme you purchased so long as an active annual support agreement is in place and active.
The Customer is not entitled to distribute, duplicate and make available to anyone, resell in its original form, or modify for the purposes of reselling, the Product.
Promotional offers and discounts are permitted for single use only, which means you may not purchase multiple licenses at a discounted rate. Downloading multiple themes from our private theme store is strictly forbidden. Additional licenses can be purchased at full price.
All themes are accessed from our Private Theme Store where you will be able to access and download your theme. Additional licenses of the theme can be purchased for use on multiple stores at the standard price of the theme. You may not copy, share, resell, trade or give away any code in whole or part, with or without modification to any store other than the one it was originally licensed to. If unauthorized distribution or use of its intellectual property, then the original license will be voided without refund and all stores using the original code or unauthorized copies must cease using them immediately.
We reserve the right to revoke any license and its use at our sole discretion if we believe any of our terms have been breached without refund and we reserve the right to change the price of a theme license at any time.
2. Support Policy
We care deeply about the quality of our themes, digital products and training materials that we provide to you the customer. If you feel your product has a bug or technical glitch that needs fixing, please let us know immediately through our Help Center which will be provided to you upon purchase.
As a result, we provide detailed online theme support documentation for installing, backing-up and editing your theme which can be accessed from your Private Membership Area immediately after your purchase.
Each theme comes with 6-months free support after which point you will be offered an annual support package to continue with email support at a cost of just $197 for the year which includes on-going theme version updates. You can read full Support Policy. Your 6-months free support starts from the moment you purchase your theme.
3. Refund Policy
As our themes, support, information, training products, and coaching are non-tangible irrevocable digital goods and services, all purchases are final and are non-refundable unless otherwise stated. Masterclass Training refunds are at the discretion of the Company if the Client is deemed to not have accessed more than 15% of the training materials and membership area and is within 14 days from purchase.
If your theme or digital product is damaged or faulty, we will provide you with a replacement or fix the issue as soon as possible in accordance with our Support Policy process and procedures outlined in Section 2 above. In the event a Customer issues a chargeback or dispute with whichever payment provider, bank or financial institution against Kristin Mark Digital Ltd, the theme license or digital information access is immediately revoked and the customer must delete any and all copies of the theme, whether in development, design or production status.
If the result of a chargeback or dispute from any financial organization is found to be in favour of Kristin Mark Digital, the Service Provider reserves the right to charge the Customer all bank, financial institution and legal fees incurred by the Service Provider. We will defend and prosecute all fraudulent and inaccurate disputes or chargebacks. All requests for refunds must be made via our support ticket system and requests must come from a registered and authorised user.
4. Intellectual Property.
All intellectual property rights, including code, copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, "Intellectual Property Rights") in and to all themes, documents, work product and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of the Service Provider in the course of performing the Services, except for any Confidential Information of Customer or customer materials shall be owned by Service Provider. Service Provider hereby grants Customer a license to use all Intellectual Property Rights free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free and perpetual basis to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Product and or Services. Under no circumstances shall Service Provider’s providing of Services to Customer constitute conveying any ownership rights of any kind to Customer.
5. Limited Warranty and Limitation of Liability.
5.1 Service Provider warrants that it shall deliver the product and perform the Services:
(a) In accordance with the terms and subject to the conditions set out in the respective Products or Service Deliverables and this Agreement.
(b) Using personnel of commercially reasonable skill, experience, and qualifications.
(c) In a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services.
5.2 Service Provider's sole and exclusive liability and Customer's sole and exclusive remedy for breach of this warranty shall be as follows:
(a) Service Provider shall use reasonable commercial efforts to promptly cure any such breach; provided, that if Service Provider cannot cure such breach within a reasonable time (but no more than 30 days) after Customer's written notice of such breach, Customer may, at its option, terminate the Agreement by serving written notice of termination in accordance with 10.2.
(b) In the event the Agreement is terminated pursuant to 5.2 (a) above, Service Provider shall within 30 days after the effective date of termination, refund to Customer any fees paid by the Customer as of the date of termination for the Product, Service or Deliverables (as defined in section 4 above), less a deduction equal to the fees for receipt or use of such Product, Deliverables or Service up to and including the date of termination on a pro-rated basis.
(c) The foregoing remedy shall not be available unless Customer provides written notice of such breach within 15 days after delivery of such Products, Service or Deliverable to Customer.
5.3 SERVICE PROVIDER MAKES NO WARRANTIES EXCEPT FOR THAT PROVIDED IN 5.1, ABOVE. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED.
From time to time during the Term of this Agreement, either Party (as the "Disclosing Party") may disclose or make available to the other Party (as the "Receiving Party"), non-public, proprietary, and confidential information of Disclosing Party that, if disclosed in writing or other tangible form is clearly labelled as "confidential," or if disclosed orally, is identified as confidential when disclosed and within 14 days thereafter, is summarized in writing and confirmed as confidential ("Confidential Information"); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party's breach of this Section 7; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party's possession prior to Disclosing Party's disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party's Group who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.
If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party's sole cost and expense, a protective order or other remedy. For purposes of this Section 7 only, Receiving Party's Group shall mean the Receiving Party's affiliates and its or their employees, officers, directors, shareholders, partners, members, managers, agents, independent contractors, service providers, sublicensees, subcontractors, attorneys, accountants, and financial advisors.
7. Non-solicitation of Service Provider’s employees, contractors or other staff.
Customer hereby agrees that during the term of this Agreement and for a period of two (2) years following the termination of this Agreement, whether the termination shall be voluntary or involuntary, with or without cause, or whether the termination is solely due to the expiration of this Agreement, Customer will not hire or attempt to hire any employee of Service Provider or otherwise encourage or attempt to encourage any employee or independent contractor of Service Provider to leave Service Provider.
8. Non-Disparagement of Service Provider.
Customer hereby agrees that during the term of this Agreement and following the termination of this Agreement, whether the termination shall be voluntary or involuntary, with or without cause, or whether the termination is solely due to the expiration of the term of this Agreement, that Customer will not disparage, denigrate, or comment negatively upon Service Provider or any of Service Provider directors, management team, officers, or clients, either orally, in writing, electronically, by the use of social media, or in any other manner whatsoever, to any person or entity.
9. Term, Termination, and Survival.
9.1 This Agreement shall commence as of the Effective Date and shall continue thereafter until the completion of the Services under all Statements of Work unless sooner terminated pursuant to Section 9.2 or Section 9.3.
9.2 Either Party may terminate this Agreement, effective upon written notice to the other Party (the "Defaulting Party") if the Defaulting Party:
(a) Breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within 30 days after receipt of written notice of such breach.
(b) Becomes insolvent or admits its inability to pay its debts generally as they become due.
(c) Becomes subject, voluntarily, or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven business days or is not dismissed or vacated within 30 business days after filing.
(d) Is dissolved or liquidated or takes any corporate action for such purpose.
(e) Makes a general assignment for the benefit of creditors.
(f) Has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
9.3 Notwithstanding anything to the contrary in 9.2(a), Service Provider may immediately terminate this Agreement before the expiration date of the Term on written notice if Customer breaches any provision or term under this Agreement or the SOW, or fails to pay any amount when due hereunder: (a) and such failure continues for 10 days after Customer's receipt of written notice of nonpayment; or (b) more than 2 times in any 2 month period. In addition to the foregoing, if Service Provider's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation or Client breaches any other provision of this Agreement (“Client Default”):
(a) Service Provider shall without limiting its other rights or remedies have the right to suspend performance of the Services, and remove access or otherwise prohibit use of the deliverables resulting from the Services, until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays Service Provider's performance of any of its obligations;
(b) Service Provider shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from Service Provider's failure or delay to perform any of its obligations as set out in this clause 9.3; and
(c) The Client shall reimburse Service Provider on written demand for any costs or losses sustained or incurred by Service Provider arising directly or indirectly from the Client Default.
(d) Service Provider shall have the right to, at its sole discretion, as well as any other available remedies in law or this agreement, to discontinue and remove placement of Client’s website and any advertisements, and take any other action necessary to stop performance of the Services, and such actions shall not constitute a breach of this Agreement by Service Provider.
9.4 The rights and obligations of the Parties set forth in this 9.4, and any right or obligation of the Parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
10. Limitation of Liability.
IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT SHALL SERVICE PROVIDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SERVICE PROVIDER PURSUANT TO THE APPLICABLE STATEMENT OF WORK OR IN ANY EVENT THOSE AMOUNTS IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, WHICHEVER IS LESS.
11.0 Entire Agreement.
This Agreement, including and together with any related features, functionality, statements of work, service deliverables, exhibits, schedules, attachments and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter. The parties acknowledge and agree that if there is any conflict between the terms and conditions of this Agreement and the terms and conditions of any Statement of Work or Service Deliverables, the terms and conditions of this Agreement shall supersede and control.
All notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a "Notice", and with the correlative meaning "Notify") must be in writing and addressed to the other Party at its address set forth below (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving Party; and (b) if the Party giving the Notice has complied with the requirements of this 12.
Notice to Customer: Email provided by Customer.
Notice to Service Provider: 2 Clifton Moor Business Village, James Nicolson Link, York, YO30 4XG with VAT number 101965825
Attention: Kristin Mark Atkinson, CEO
If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction; provided, however, that if any fundamental term or provision of this Agreement, is invalid, illegal or unenforceable, the remainder of this Agreement shall be unenforceable. Upon a determination that any term or provision is invalid, illegal or unenforceable, the court may modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Customer shall not assign, transfer, delegate its license any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Service Provider. Any purported assignment or delegation in violation of this section 15 shall be null and void. No assignment or delegation shall relieve the Customer of any of its obligations under this Agreement. Service Provider may assign any of its rights or delegate any of its obligations to any affiliate or to any person acquiring all or substantially all of Service Provider's assets without Customer's consent.
19. Successors and Assigns.
This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
20. Relationship of the Parties.
The relationship between the Parties is that of independent contractors. The details of the method and manner for performance of the Services by Service Provider shall be under its own control, Customer being interested only in the results thereof. The Service Provider shall be solely responsible for supervising, controlling and directing the details and manner of the completion of the Services.
Nothing in this Agreement shall give the Customer the right to instruct, supervise, control, or direct the details and manner of the delivery of the product or completion of the Services. The Services must meet the Customer's final approval and shall be subject to the Customer's general right of inspection throughout the performance of the Services and to secure satisfactory final completion. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
21. No Third-Party Beneficiaries.
This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
22. Choice of Law.
For all Customers located within the United States: This Agreement and all related documents including all exhibits attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, Florida law, (including its statutes of limitations), without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of Florida law.
For all Customers located outside of the United States: This Agreement and all related documents including all exhibits attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, English law, (including its statutes of limitations), without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of English law.
23. Choice of Forum.
For all Customers located outside of the United States: Any dispute arising out of or in connection with this Agreement, including any question regarding interpretation, violation, validity or termination, shall be referred to and finally resolved by arbitration under the London Court of International Arbitration (“LCIA Rules”), which LCIA Rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be one, chosen by the LCIA. The seat, or legal place, of arbitration shall be London, England. The language to be used in the arbitral proceedings shall be English. The governing law of the contract shall be the substantive law of England.
For all Customers located within the United States: Any legal suit, action, or proceeding arising out of or relating to this Agreement, or the transactions contemplated hereby shall be instituted in any United States federal court or state court located in the state of Florida in the County of Broward, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by certified mail to such party's address shall be effective service of process for any suit, action, or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action, or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action, or proceeding brought in any such court has been brought in an inconvenient forum.
24. Attorneys' Fees.
In the event that any party institutes any legal suit, action, or proceeding, including arbitration, against the other party arising out of or relating to this Agreement, the prevailing party in the suit, action, or proceeding shall be entitled to receive, in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action, or proceeding, including reasonable attorneys' fees and expenses and court costs.
25. WAIVER OF JURY TRIAL.
EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Notwithstanding anything to the contrary in 12, a signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
26. Force Majeure.
No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of the Customer to make payments to Service Provider hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party's ("Impacted Party") reasonable control, including, without limitation, the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) any uncontrollable third party actions which affect Service Provider’s ability to perform the Services; (f) embargoes or blockades in effect on or after the date of this Agreement; and (g) national or regional emergency; and (h) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (i) shortage of adequate power or transportation facilities; and (j) other similar events beyond the reasonable control of the Impacted Party.
THE IMPACTED PARTY SHALL GIVE NOTICE WITHIN 7 DAYS OF THE FORCE MAJEURE EVENT TO THE OTHER PARTY, STATING THE PERIOD OF TIME THE OCCURRENCE IS EXPECTED TO CONTINUE. THE IMPACTED PARTY SHALL USE DILIGENT EFFORTS TO END THE FAILURE OR DELAY AND ENSURE THE EFFECTS OF SUCH FORCE MAJEURE EVENT ARE MINIMIZED. THE IMPACTED PARTY SHALL RESUME THE PERFORMANCE OF ITS OBLIGATIONS AS SOON AS REASONABLY PRACTICABLE AFTER THE REMOVAL OF THE CAUSE. IN THE EVENT THAT THE IMPACTED PARTY'S FAILURE OR DELAY REMAINS UNCURED FOR A PERIOD OF 30 DAYS FOLLOWING WRITTEN NOTICE GIVEN BY IT UNDER THIS SECTION 26, THE OTHER PARTY MAY THEREAFTER TERMINATE THIS AGREEMENT UPON 7 DAYS' WRITTEN NOTICE.
Kristin Mark Digital® is a website design and marketing company that helps ecommerce businesses sell their products and services online. We make no claims or representation that by using RankHigherTheme® and its training products that you will earn money or make your money back. Testimonials and case studies shown are real experiences from paying users of RankHigherTheme® and Kristin Mark Digital®. Their business’s results are not typical, and your business’s experience will vary based upon the effort and education of your business’s employees and management, the business model that is implemented, and market forces beyond anyone’s control.