If you would like to see past versions of the KMP Consultants User Agreement, please contact us at firstname.lastname@example.org and we would be happy to provide you with a copy of any prior version.
1. APPLICABILITY OF THIS CUSTOMER AGREEMENT.
KMP Consulting LLC ("KMP Consultants") provides certain professional services, such as training, implementation, and custom workshop services (collectively, the "Professional Services"). If you have any questions about this document or what legal terms apply to your use of the Professional Services, please contact KMP Consultants at email@example.com .
2. ACCEPTANCE AND MODIFICATION OF THIS CUSTOMER AGREEMENT.
NOTICE REGARDING DISPUTE RESOLUTION:
This Customer Agreement contains provisions that govern the resolution of claims between you and KMP Consultants. It also includes an agreement to arbitrate, which will, with limited exception, require you to submit claims you have against us to binding and final arbitration. Unless you opt-out, you will only be able to pursue claims against KMP Consultants on an individual basis, not as part of any class or representative action or proceeding, and you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
4. YOUR WARRANTIES AND OTHER OBLIGATIONS.
4.1. Service Eligibility.
To be eligible to use the Professional Services, the Customer represents and warrants that Customer: (1) is not a competitor of KMP Consultants or using the Professional Services for reasons that are in competition with KMP Consultants; (2) has full power and authority to enter into this Agreement and it's doing so will not violate any other agreement to which Customer is a party; and (3) will not violate any rights of KMP Consultants, including intellectual property rights such as copyright or trademark rights.
Customer agrees to defend, indemnify, and hold harmless KMP Consultants for, from, and against all damages, losses, claims, liabilities, expenses, and costs (including, but not limited to, reasonable attorneys’ fees and costs) related to all third-party claims, actions, suits, demands, proceedings, charges, and investigations, arising from or related to (1) Customer's or its Users' failure to comply with this Agreement.
5. FEES & PAYMENT TERMS.
Customer shall pay to KMP Consultants the use fees as set forth on the Proposal(s), as well as any professional service fees set forth on any Schedules. All fees, unless expressly stated otherwise on the applicable Proposal, shall be in United States dollars.
All fees are due when invoiced, irrevocable, and non-refundable (except as expressly set forth otherwise in this Agreement). The customer agrees to provide KMP Consultants with complete and accurate billing and contact information.
Any fees not paid when due shall, unless otherwise specified in the applicable Proposal or SOW, begin to accrue interest 15 days after the due date at the rate of 2% (two percent) per month, but not to exceed the maximum amount as allowed by law. In addition to all late fees and other charges, you agree to pay all court costs and collection expenses (whether or not awarded court costs), and reasonable attorney fees incurred by KMP Consultants to enforce this Agreement, to the extent permitted by law.
Fees and other charges described in this Agreement do not include federal, state, or local sales, foreign withholding, use, property, excise, service, or similar transaction taxes (“Tax(es)”) now or hereafter levied, all of which shall be for Customer's account. Any applicable direct pay permits or valid tax-exempt certificates must be provided to KMP Consultants prior to the execution of this Agreement. If KMP Consultants is required to pay Taxes, the Customer shall reimburse KMP Consultants for such amounts. Customer hereby agrees to indemnify KMP Consultants for any Taxes and related costs, interest and penalties paid or payable by KMP Consultants.
7. WARRANTIES & OBLIGATIONS.
7.1 Professional Services.
KMP Consultants warrants for a period of 30 days following their delivery that all Professional Services provided hereunder will be performed in a workmanlike manner, in conformity with the applicable specifications, if any, provided by KMP Consultants in writing in the applicable Proposal. Upon delivery of Professional Services, the Customer shall have an acceptance period of thirty (30) calendar days during which the Customer will have the opportunity to verify that the Professional Services comply in all material respects with the applicable specifications. If the Customer concludes that the Professional Services are unacceptable, it shall notify KMP Consultants in writing by the Acceptance Deadline, including in such written notification a reasonably detailed explanation of the basis for the rejection of the Professional Services. If the Customer does not provide such written notice by the Acceptance Deadline, the Customer shall be deemed to have accepted the Professional Services. For any breach of this warranty timely reported by Customer, Customer’s sole and exclusive remedy shall be the re-performance of the deficient Professional Services, and if KMP Consultants is unable to re-perform the deficient Professional Services as warranted, Customer shall be entitled to recover the portion of the fees paid to KMP Consultants for such deficient Professional Services, and such refund shall be KMP Consultants entire liability.
THE PROFESSIONAL SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND KMP Consultants EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY.
Each party (“Disclosing Party”) may disclose “Confidential Information” to the other party (“Receiving Party”) in connection with the Professional Services, which is anything that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure including all Proposals, as well as non-public business, product, technology, and marketing information. Confidential Information of Customer includes Customer Data. If something is labeled “Confidential,” that’s a clear indicator to the Receiving Party that the material is confidential. Notwithstanding the above, Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party: (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party.
8.2. Use of Confidential Information.
Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any reproduction of any Confidential Information of the other shall remain the property of the disclosing party and shall contain any and all confidential or proprietary notices or legends which appear on the original.
With respect to the Confidential Information of the other, each party: (a) shall take commercially reasonable steps to keep all Confidential Information strictly confidential; and (b) shall not disclose any Confidential Information of the other to any person other than its bona fide individuals whose access is necessary to enable it to exercise its rights hereunder. Confidential Information of either party disclosed prior to execution of this Agreement shall be subject to the protections afforded hereunder.
8.3. Confidential Terms and Conditions; Publicity.
Customer shall not disclose pricing to any third party unless restricted from conforming to non-disclosure by governmental statute and/or ordinance. KMP Consultants may identify Customer on its customer lists and list Customer as a customer in its marketing and advertising materials, and reproduce Customer's company name, logo, trademark, trade name, service mark, or other commercial designations, solely in connection therewith.
9. LIMITATION OF LIABILITY.
Neither KMP Consultants nor any of our affiliated companies, employees, agents, consultants, contractors, members, or managers ('KMP Consultants Affiliates') shall be cumulatively liable for (a) any damages in excess of the actual amount paid by or received by KMP Consultants for Customer’s purchases within the 5-month period preceding the event which gave rise to the claim, or US $100, whichever amount is greater, or (b) any special, incidental, indirect, punitive or consequential damages or loss of use, profit, revenue or data to you or any third person arising from your use of the Professional Services, or any of the content or other materials on, accessed through or downloaded from KMP Consultants. This limitation of liability is part of the basis of the bargain between the parties and without it the terms and prices charged would be different. This limitation of liability shall:
- Apply regardless of whether (1) you base your claim on contract, tort, statute or any other legal theory, (2) we knew or should have known about the possibility of such damages, or (3) the limited remedies provided in this section fail of their essential purpose; and
- Not apply to any damage that KMP Consultants may cause you intentionally in violation of this Agreement or applicable law, or as otherwise mandated by applicable law that cannot be disclaimed from in this Agreement.
10. TERM AND TERMINATION.
10.1. Mutual rights of termination.
In the event of any breach of this Agreement by either party, the non-breaching party shall have the right to terminate the Agreement (or the relevant Proposal) for cause if such breach has not been cured within 30 days of written notice from the non-breaching party specifying the breach in detail. Termination of your KMP Consultants account includes disabling your access to KMP Consultants Platform and Website.
10.2. Customer Actions upon Termination.
Upon termination, Customer must return or destroy all KMP Consultants property in Customer’s possession. Customer, upon KMP Consultants' request, will confirm in writing that it has complied with this requirement.
11. DISPUTE RESOLUTION.
- Any claim that qualifies as a small claim in a court of limited subject matter jurisdiction must be brought in such court; and
- Any claim for injunctive relief may be brought in a court of competent jurisdiction to enjoin intellectual property infringement or misuse.
You may begin an arbitration proceeding by following the American Arbitration Association’s (AAA’s) filing requirements and mailing a request for arbitration and a description of your claim to us at 4960 S. Gilbert Rd., Ste 1-183, Chandler, AZ 85249. The AAA’s Rules of Commercial Arbitration will apply (available at www.adr.org or by calling 1-800- 778-7879). The arbitrator will have the power to rule on any challenge to its own jurisdiction or to the validity or enforceability of any portion of
this agreement to arbitrate. Notwithstanding any of the foregoing, THE ARBITRATOR WILL NOT BE EMPOWERED AND DOES NOT HAVE THE AUTHORITY TO HEAR OR DECIDE ANY CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, TO AWARD PUNITIVE OR EXEMPLARY DAMAGES OR TO AWARD ATTORNEYS’ FEES TO THE PREVAILING PARTY.
Any cause of action or claim you may have arising out of or relating to the Customer Agreement or the KMP Consultants Platform must be commenced within one (1) year after the cause of action accrues, otherwise, such cause of action or claim is permanently barred.
12. GENERAL TERMS.
In the event that any provision of this Customer Agreement is unenforceable or invalid under any applicable law, such unenforceability or invalidity shall not affect the other provisions of this Customer Agreement and this Customer Agreement shall be construed as if such unenforceable or invalid provision had never been contained herein.
12.2. Notices and Service of Process.
Notices to KMP Consultants shall be sent to 4960 S. Gilbert Rd, Ste 1-183, Chandler, AZ 85249.
Except as expressly provided for otherwise in this Customer Agreement, KMP Consultants shall provide all notices to Customer under this Customer Agreement by email, although we may instead choose to provide notice to Customer through your then-current postal address on file with KMP Consultants. You also agree that KMP Consultants may communicate with you through other means including email, mobile number, telephone, or delivery services including the postal service, about your KMP Consultants services associated with KMP Consultants. You acknowledge and agree that we shall have no liability associated with or arising from your failure to maintain accurate contact or other information, including, but not limited to, your failure to receive critical information.
12.3. Entire Agreement.
12.4. No informal waivers, agreements, or representations.
Our failure to act with respect to a breach of this Customer Agreement by you or others does not waive our right to act with respect to that breach or subsequent similar or other breaches. Except as expressly and specifically contemplated by the Customer Agreement, no representations, statements, consents, waivers or other acts or omissions by any KMP Consultants Affiliate shall be deemed legally binding on any KMP Consultants Affiliate, unless documented in a physical writing hand signed by a duly appointed officer of KMP Consultants.
12.5. Assignment and Delegation.
You may not assign or delegate any rights or obligations under the Agreement. Any purported assignment and delegation shall be ineffective. We may freely assign or delegate all rights and obligations under the Agreement, fully or partially without notice to you. We may also substitute, effective upon notice to you, KMP Consultants for any third party that assumes our rights and obligations under this Agreement.
12.6. Force Majeure