Kaleidoscope Standard Terms & Conditions
Last updated: May 6, 2021
Table of Contents:
- Agreement to Terms
- General Terms
b. Acceptance & Limited Warranty
c. Limitation of Liability
d. Intellectual Property Rights
g. Term and Termination
h. Refund Policy
i. Dispute Resolution
- Product Specific Terms
1. AGREEMENT TO TERMS
2. GENERAL TERMS
Upfront payments for The Products are due immediately after you sign the purchase agreement. Unless agreed otherwise, we will send you a link to a secure payment page generated from our credit card processor where you will provide your credit card information.
Monthly payments for The Products begin 30 days after you sign the purchase agreement, except for website hosting & maintenance (for new website customers) which begins when your new site goes live. Monthly payments shall continue until this agreement is terminated in accordance with Section G below.
B. Acceptance & Limited Warranty
Client shall be deemed to have accepted The Products unless Client has provided written notice of non-acceptance within thirty (30) days of receipt. Kaleidoscope warrants that it will not disclose to any third party any confidential or proprietary information of Client obtained by Kaleidoscope in fulfilling its obligations under this Agreement. Kaleidoscope further warrants that it will take all reasonable actions necessary to protect Client’s proprietary and confidential information provided to Kaleidoscope by Client, including, without limitation, security for financial transactions. (Notwithstanding the foregoing, in order to improve our customer’s experience, Kaleidoscope welcomes and encourages comments, suggestions and ideas (“feedback”) from its users. It is understood and agreed that such feedback from customers is not confidential or proprietary, and that such feedback, including related content, may be used by Kaleidoscope for any purpose, including without limitation, in its software, operations and marketing, without compensation or attribution). Any and all warranties pertaining to the computer/equipment are provided solely by the manufacturer.
This warranty shall be void in the event of any modification of the Kaleidoscope software/application by Client, use of the application from a location outside the U.S. or Canada, or interference with the software/application as a result of content provided by Client.
THIS LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
C. Limitation of Liability
Total Liability. NEITHER PARTY HERETO SHALL NOT BE LIABLE TO THE OTHER PARTY FOR ANY LOST DATA, LOST PROFITS OR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR OTHER INDIRECT DAMAGES OF ANY KIND FOR ANY REASON WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES BASED UPON NEGLIGENCE, BREACH OF WARRANTY, STRICT LIABILITY, OR ANY OTHER THEORY. Kaleidoscope’s liability hereunder for damages, regardless of the form of action, shall not exceed 100% of the total amount paid for The Products.
D. Intellectual Property Rights
Unless otherwise indicated, The Products are our proprietary property and all source code, databases, functionality, software, website designs, audio, video, text, photographs, graphics, and all Kaleidoscope Materials (as defined below) used in The Products (collectively, the “Content”) and the trademarks, service marks, and logos contained therein (the “Marks”) are owned or controlled by us or licensed to us, and are protected by copyright and trademark laws and various other intellectual property rights and unfair competition laws of the United States, international copyright laws, and international conventions.
The above notwithstanding, any images, videos, audio files, text, or other media that have been created by The Client, are your intellectual property (“Client Materials”). You hereby grant us the right to use Client Materials to fulfill our obligations under this Agreement.
“Kaleidoscope Materials” means all discoveries, concepts and ideas, whether or not registrable under patent, copyright or similar statutes, including, without limitation, patents, copyright, trademarks, trade secrets, processes, methods, formulae, techniques, tools, solutions, programs, data and documentation, as well as modifications and improvements thereof and know-how related thereto, which Kaleidoscope, alone, or jointly with others, its agents or employees, conceives, makes, develops, acquires or obtains knowledge of at any time before, after or during the term hereof without breach of Kaleidoscope’s confidentiality duty to Client.
Residual Rights. Kaleidoscope and its personnel shall be free to use and employ its and their general skills, know-how, and expertise, and to use, disclose, and employ any generalized ideas, concepts, know-how, methods, techniques, or skills gained or learned during the course hereof so long as it or they acquire and apply such information without any unauthorized use or disclosure of any confidential or proprietary information of The Client.
Kaleidoscope offers sufficient initial operational support and answers to general questions for no additional fees. Operational support includes diagnosing and correcting problems with the The Products. Client will assign their own personnel who will act as a contact point for operational support. For additional individual support with The Products, which may be subject to additional fees, you should contact Kaleidoscope during normal business hours or through the Kaleidoscope website.
Kaleidoscope shall indemnify and hold Client and Client’s officers and directors, affiliates, subsidiaries, agents, and employees harmless from any loss or damage arising out of a third party claim or action against such parties for injuries or damage to person or property caused by the negligent acts or omissions of Kaleidoscope’s personnel while performing services (“The Services”) related to delivery of The Products. Client agrees to indemnify and hold Kaleidoscope and Kaleidoscope’s officers, directors, affiliates, subsidiaries, agents, and employees harmless from any third party claim for loss or damage to person or property caused by the negligent acts or omissions of Client’s personnel while Kaleidoscope’s personnel are performing The Services for Client hereunder. Notwithstanding any provision herein to the contrary, neither Party shall have a duty hereunder to indemnify and/or hold the other Party and its officers and directors, affiliates, subsidiaries, agents, and employees harmless from or against any claim or action for injuries or damage to person or property or any other damage or loss which was caused or is claimed to have been caused or contributed to in whole or in part by the act or failure to act of the other Party and its officers and directors, affiliates, subsidiaries, agents, and employees.
Client Materials. Client shall be liable for any third party claims asserted against Kaleidoscope alleging that any Client Materials infringe a patent, trademark, copyright, trade secret, or any other intellectual property right of a third party and shall indemnify and hold harmless Kaleidoscope from and against all third party claims asserted against Kaleidoscope alleging that any Client Materials infringe a patent, trademark, copyright, trade secret, or any other intellectual property right of a third party. Client further represents and warrants that Client’s content shall not contain any material which is false, misleading, infringes on any existing proprietary rights, is in violation of the Health Insurance and Portability Act (“HIPAA”), or is illegal or offensive or is likely to cause injury or damage to Kaleidoscope’s reputation.
Conditions. Any responsibility on the part of a Party hereunder to indemnify and hold harmless the other shall be specifically conditioned upon:
(a) Indemnifying Party shall receive from indemnified Party written notice of any claim or action for which such Party seeks indemnity hereunder within 15 days of the indemnified Party’s learning, whether by written notice or otherwise, of such claim or action; timely receipt of such notice by the indemnifying Party shall be of the essence hereof;
(b) Indemnifying Party shall in its sole discretion have the right, but not the duty, to assume the defense of indemnified Party against any claim or action upon which third party indemnity is sought; and
(c) Indemnifying Party shall have no liability to indemnify or hold indemnified Party harmless for any payment made by indemnified Party in settlement or compromise of any claim or action against indemnified Party unless indemnifying Party receives notice in writing 15 days in advance of such settlement or compromise and approves the same in writing before payment thereof by indemnified Party.
Kaleidoscope agrees to indemnify and hold harmless Client against all liability to third parties (other than liability solely the fault of the indemnified party) arising from or in connection with performance under this Agreement. Client specifically warrants: that it has ownership of, or consent to use, any Client Materials; that any Client Materials do not infringe upon an existing copyright, trade name or service mark and agrees to defend, indemnify and hold Kaleidoscope harmless, from any liability arising out of the use of such content.
G. Term and Termination
Term. This Agreement shall become effective on the date first shown above (“Effective Date”) and shall continue in effect until terminated.
Termination without Cause. After six months following the Effective Date, except as stated in any Agreement to the contrary, either Party may terminate this Agreement or any of The Products upon 30 days’ advance written notice. For purposes of clarification, after six months following the Effective Date, Client may cancel any particular offering of Kaleidoscope while remaining as a Client under this Agreement.
Termination for Cause. If either Party (a) fails to perform its obligations hereunder or under any SOW and such failure continues for a period of 15 days after written notice thereof, (b) ceases to carry on its business substantially as such business is conducted on the date hereof, (c) institutes or suffers the institution against such Party of bankruptcy, reorganization, liquidation receivership or similar proceedings, or (d) generally becomes unable to pay its debts as they become due, then, without prejudice to any other rights or remedies available to it, the other Party shall have the right to terminate this Agreement immediately.
Payment Default. Kaleidoscope may terminate this Agreement immediately upon written notice if Client fails to pay Kaleidoscope in accordance with the terms herein and Kaleidoscope may disable the functionality of any of The Products until payment is received in full.
Survival. In the event of any termination hereof, the parties’ obligations under sections C (Limitation of Liability), D (Intellectual Property), and F (Indemnification) hereof shall survive and continue in full force and effect.
H. Refund Policy
Certain of The Products have specific refund policies as outlined in the Product-Specific Terms herein. For all other of The Products, unless otherwise agreed in writing, there shall be no refund of upfront or monthly payments. The above notwithstanding, if Client prepays monthly payments and wishes a refund after the initial six month period, Kaleidoscope will refund 80% of the remaining unused monthly payments. For purposes of illustration, if the Client has prepaid for two years and gives 30 days written notice after 11 months, Kaleidoscope will refund 80% of 12 months prorated payments (which would be equal to 40% of the total amount paid).
I. Dispute Resolution
The Parties agree that any arbitration shall be limited to the Dispute between the Parties individually. To the full extent permitted by law, (a) no arbitration shall be joined with any other proceeding; (b) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
Exceptions to Informal Negotiations and Arbitration
The Parties agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (a) any Disputes seeking to enforce or protect, or concerning the validity of, any of the intellectual property rights of a Party; (b) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use; and (c) any claim for injunctive relief. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.
Statutes of Limitation
Any dispute or other action arising out hereof must be brought within one year of the date the cause of action accrued, except that an action for nonpayment may be brought within one year of the date of last payment.
3. Product Specific Terms:
A. If you have contracted for the Kaleidoscope Content Management Platform and any other Kaleidoscope software:
License and Permitted Use. Kaleidoscope owns all proprietary rights, including copyright, trademark, pending patents, and other proprietary rights in and to the Kaleidoscope software and web-based application (“the “Software”). Kaleidoscope grants to Client under the Terms and Conditions of this Agreement, for the term specified a nonexclusive, nontransferable license to use the Software purchased, subject to continuation of the monthly license payments. Client shall not sell, license, transfer, or permit the use of the Products to or by a subsidiary, affiliated entity or a third party. Client shall use the Products only for its own business.
Licenses granted for the Kaleidoscope Content Management Platform are for use at a single office location. If Client is using Kaleidoscope’s multi-office content distribution capabilities, Client must have a license to use the Content Management System at each location. For purposes of clarification, if Client has five office locations, then Client must have five licenses.
Kaleidoscope reserves the right, without notice, to change or modify the appearance of the proprietary material. Client shall have the right to incorporate within the software application Client’s own images and content (including, without limitation, pictures, videos, text and streaming content from sources such as Facebook®, Twitter®, weather and news). With respect to content provided by Client, including, without limitation, images, content and trademark logo or image designs, Client shall own all proprietary rights.
Client guarantees and warrants that any elements of text, graphics, photos, videos, designs, trademarks, or other content provided for inclusion in the Kaleidoscope software/display are owned by Client, or that Client has received permission from the rightful owner(s) to use each of the elements, and will hold harmless and defend and indemnify Kaleidoscope and its agents from any claim, liability or suit arising from the use of such elements.
Client specifically warrants, without limiting the foregoing warranty by Client, that Client shall not use content displaying a specific technology not used or offered by Client. Client understands that content accessed by Client from third party sites (such as Facebook, Twitter, and RSS Feeds), contain content over which Kaleidoscope has no control and Kaleidoscope has no responsibility for such use by Client. Client understands that it is solely responsible for its use and protection of usernames and passwords for the software/computer and for any activity in the use of, and access to, the computer/software, and shall not disclose or share such password to any unauthorized third parties or use it for unauthorized purposes.
Client acknowledges and agrees that Kaleidoscope will rely upon any action that is purportedly taken by you by any person who gains access to Client’s password or computer system or transmitting facilities, and that this acknowledgment and agreement is commercially reasonable. Client shall advise and train its employees in the appropriate use of the software in accordance with this Agreement. Client shall not copy, reverse engineer, decompile or modify the software or content contained on their computer, in the web-based Kaleidoscope application, Kaleidoscope website, and/or any other Kaleidoscope software.
Client agrees that each of the terms of this License is material and that failure to comply with these Terms and Conditions shall be sufficient cause to terminate this Agreement.
B. If you have contracted for a Website:
Supply of Materials. You must supply all materials and information required by us to complete the work in accordance with any agreed specification. Such materials may include, but are not limited to, photographs, custom written copy, logos, video, and other printed material. Where there is any delay in supplying these materials to us which leads to a delay in the completion of work, we reserve the sole right to extend any previously agreed deadlines by a reasonable amount. Where you fail to supply materials, and that prevents the progress of the work, we have the right to stop work and invoice you for any balance on the contract.
Variations. We are pleased to offer you the opportunity to make revisions to the design. However, we have the right to limit the number of design rounds to three and may charge an additional fee if you make a change to the original design specification once approved. You may request as many changes to each of the three design rounds as you want based on your initial specifications. However, they must be received in one email to facilitate the process and avoid confusion. Each separate email request would be considered one of your three round changes. Our website development phase is flexible and allows certain variations to the original specification once approved. However any major deviation from the specification will be charged at the rate of $150 per hour.
Project Delays and Client Liability. Any time frames or estimates that we provide are contingent upon the full cooperation of the Client. During website development there is a certain amount of feedback required in order to progress to subsequent phases. It is required that a single point of contact be appointed from the Client side and be made available on a continuing basis in order to expedite the feedback process.
We will not be responsible if the web design project remains largely unfinished or is delayed, due to Client inaction, unresponsiveness, failure to request design changes in a timely manner or failure to approve the design or written content.
After the initial 90 calendar days, if the project is still unfinished, we reserve the right to charge $75/hour for any further change requests.
Approval of Work. On completion of the first round of the design you will be sent a live site to review the design aspects. All written content will be presented as Latin placeholder text to allow the Client to focus on the visual elements. Client must notify us by email of any unsatisfactory points or changes in the design within 14 days of such notification. Any of the work which has not been reported in writing to us as unsatisfactory within the 14-day review period will be deemed to have been approved. Once approved, or deemed approved, we will move forward to the next step of the process.
Rejected Work. If you reject any of our work within the 14-day review period and not approve subsequent work performed by us to remedy any points recorded as being unsatisfactory, and we, acting reasonably, consider that you have been unreasonable in any rejection of the work, we can elect to treat this contract as complete and take measures to recover payment for the contracted work.
Monthly Website Maintenance. Once the website is live, a Monthly Maintenance fee as stipulated in the Pricing Section of this Agreement will begin immediately, and be automatically debited to your credit card or bank account thereafter. Since the Internet and its requirements are ever changing, Maintenance fees are subject to change. You will be notified of any changes in the fee prior to the next billing cycle, should they occur.
Copyrights & Trademarks. You must obtain all necessary permissions and authorities in respect of the use of all copy, graphic images, registered company logos, names and trademarks, or any other material that you supply to us to include in your website or web applications. You must indemnify us and hold us harmless from any claims or legal actions related to the content of your website.
Search Engines. All websites we design are search engine friendly based on the current industry standards. However we do not guarantee any specific position in search engine results for the Client’s website. We perform ongoing search engine optimization, if needed, according to current best practices at an additional monthly fee. All additional monthly SEO services must be agreed upon in writing by the parties.
C. If you have contracted for Digital Signage:
Broadcaster Unit/Computer. All purchases of a Broadcaster Computer are final and no refund will be made on computer/equipment. For the Kaleidoscope digital sign to work properly, the computer you receive from us MUST not be used for any other purposes and it MUST be displayed on a 1080p or better HD television with an HDMI cord (HDMI cord and television purchased separately and are not sold by Kaleidoscope). HDMI cords only up to 30ft should be purchased to ensure the quality of the display. HDMI Splitter, warranty/technical support are provided directly by manufacturer, C2G (800-506-9606 or www.c2g.com).
Kaleidoscope is not responsible for any issues related to hardware connections when troubleshooting shows that the Kaleidoscope software and computer function properly when directly connected to the Client’s TV screen with an HDMI cord. HDMI cords and televisions are purchased separately. HDMI cords only up to 30ft should be purchased to ensure the quality of the display. Client is responsible for ongoing maintenance, support and updating of Client’s hardware and software related to its use of Kaleidoscope. For technical support involving the TruLink® HDMI Splitter, please reference the technical guidebook that accompanies that equipment or contact the manufacturer, C2G directly, if problems persist (800-506-9606 or www.c2g.com). Support is not guaranteed, and the support agreement may void if the Kaleidoscope application is used from a location outside of the U.S. or Canada. Client acknowledges all Internet browsers and computer operating systems used to operate Kaleidoscope must be up to date for the system to operate fully, and any Kaleidoscope technical support to be rendered.