Terms & Conditions
Last updated: June 5, 2023
These Kaleidoscope Subscription Terms and Conditions (“Terms and Conditions”) govern the access, execution and use of Kaleidoscope Group, PBC, a Delaware public benefit corporation (“Kaleidoscope”) hosted software platform (“Product”) and professional services (“Services”) delivered or made accessible to the customer set forth in an applicable order form (“Customer”) that references these Terms and Conditions. These Terms and Conditions are incorporated into the Order Form (“Order Form”) entered into by Kaleidoscope and Customer that further identify the Products and Services, the amounts to be paid for such Products and Services, and other information applicable to the agreement.
These Terms and Conditions, together with the Order Form, constitute the “Agreement.” In the case of any ambiguity or conflict between these Terms and Conditions and the Order Form, these Terms and Conditions shall control, except to the extent that these Terms and Conditions defer to the Order Form or any particular provision of the Order Form that expressly states with reference to the section number of these Terms and Conditions that is intended to supersede, in which case such provision of such Order Form shall control for the purposes of such Order Form only.
BY CLICKING TO ACCEPT THESE TERMS AND CONDITIONS DURING THE ORDERING PROCESS, OR ISSUING A PAYMENT TO KALEIDOSCOPE UNDER AN INVOICE THAT REFERENCES THESE TERMS AND CONDITIONS, CUSTOMER (A) ACCEPTS THESE TERMS AND AGREES THAT CUSTOMER IS LEGALLY BOUND BY THEM; AND (B) REPRESENTS AND WARRANTS THAT THE PERSON ACCEPTING THE TERMS AND CONDITIONS ON BEHALF OF CUSTOMER HAS THE RIGHT, POWER, AND AUTHORITY TO AGREE TO THESE TERMS ON BEHALF OF CUSTOMER AND BIND CUSTOMER TO THESE TERMS AND CONDITIONS.
Capitalized terms not otherwise defined in the Agreement have the following meanings:
- “Applicant Data” means any general information submitted to or through the Kaleidoscope Product by or on behalf of Applicants and is maintained by Kaleidoscope on the Applicant’s behalf for the purposes of submitting applications to various Awards.
- “Award” means a scholarship, grant, or similar fund or program (e.g., mentorship program, sweepstakes, fellowships, etc.) that is sponsored by Customer and made available for Applicant submissions via the Product.
- “Confidential Information” means information supplied in confidence by one Party (“Disclosing Party”) to the other Party (“Receiving Party”), which may be disclosed to the Receiving Party or otherwise acquired by the Receiving Party in its performance under the Agreement. Confidential Information includes all information which a reasonable person would consider confidential under the context of disclosure or due to the nature of the information itself, and includes without limitation fee schedules, pricing methods, salary data, procedural/tactical approaches to areas of the business, strategic business decisions, technical and non-technical information, proprietary rights, trade secrets, know-how, designs, techniques, work in process, future development, marketing, business plans or financial or personnel matters relating to either Party or its present or future products, sales, suppliers, customers, employees, investors or affiliates. Confidential Information will not include information to the extent that: (a) such information is or becomes publicly available other than through any act or omission of the Receiving Party in breach of the Agreement; (b) such information was provided to the Receiving Party by a third party who was not under an obligation to the Disclosing Party with respect to such information; or (c) such information was in the possession of the Receiving Party at the time of the disclosure, or was independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information. The burden of proof that Confidential Information falls into any one of the above exclusions will be borne by the Party claiming such exemption(s).
- “Customer Application Data” means any information submitted to or through the Product by or on behalf of an Applicant in response to a Customer Award opportunity posted to the Product, but excludes Applicant Data.
- “Customer Material” means electronic files, content, data and other information uploaded by Customer to or through the Product or provided directly to Kaleidoscope Personnel.
- “Data Protection Laws” means all laws and regulations applicable to the privacy or security of Personal Information Processed by either Party in connection with or pursuant to this Agreement, such as the California Consumer Privacy Act, as amended (including, without limitation, by the California Privacy Rights Act) and together with any implementing regulations (the “CCPA”).
- “Fees” means the subscription fees, use fees, overage fees and any other fees identified in an Order Form to be paid by Customer for access to the Product and Services.
- “Kaleidoscope IP” means the Product, Services, any related documentation made available by Kaleidoscope to customers generally, and any and all intellectual property provided to Customer or any Customer User in connection with the foregoing. For the avoidance of doubt, Kaleidoscope IP includes Statistical Data and any information, data, or other content derived from Kaleidoscope’s monitoring of access to or use of the Product and Services, but does not include Customer Materials.
- “Kaleidoscope Personnel” means Kaleidoscope, and its officers, directors, employees, agents and subcontractors of any kind.
- “Parties” means Customer and Kaleidoscope collectively.
- “Party” means either Customer or Kaleidoscope.
- “Personal Information” means information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual or household, and includes “Personal Data,” “Personal Information,” or “Personally Identifiable Information,” as defined by any applicable Data Protection Laws. Personal Information does not include Statistical Data or data that has been Processed in such a manner that no longer identifies, relates to, describes, or is capable of being associated or linked with a particular individual.
- “Process,” “Processes,” or “Processing” means any operation or set of operations which is performed upon Personal Information, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
- “Statistical Data” means data and information related to Customer’s use of the Services that is used by Kaleidoscope in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Product and Services.
2. PRODUCT AND SERVICES
2.1 Access and Use. Subject to any obligations or limitations stated in the applicable Order Form, Kaleidoscope grants to Customer a limited, non-exclusive, non-transferrable, non-sublicensable right during the Subscription Term to access and use the Product (including any updates or changes made by Kaleidoscope during the Term) listed in the Order Form for Customer’s internal business purposes.
2.2 Account Registration. Kaleidoscope will require Customer to create an administrator’s user account including a username and password. Customer may authorize only its employees and agents (each, a “Customer User”) to use the Product in accordance with the terms of this Agreement. Customer and Customer Users are responsible for maintaining the confidentiality and security of the Customer User login credentials. Customer is responsible for all activity under a Customer User account.
2.3 User Restrictions. Customer shall not use the Product or Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Customer Users to: (i) copy, modify, or create derivative works of the Product or Services, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Product or Services; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Product or Services, in whole or in part; (iv) remove any proprietary notices from the Product or Services; or (v) use the Product or Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
2.4 Suspension. Notwithstanding anything to the contrary in this Agreement, Kaleidoscope may temporarily suspend Customer’s and any Customer User’s access to any portion or all of the Product if: Kaleidoscope reasonably determines that there is a threat or attack on any of the Kaleidoscope IP; Customer or any Customer User’s use of the Kaleidoscope IP disrupts or poses a security risk to the Kaleidoscope IP or to any other customer or vendor of Kaleidoscope; or Customer, or any Customer User, is using the Kaleidoscope IP for fraudulent or illegal activities (each, a “Product Suspension”). Provider shall use commercially reasonable efforts to provide written notice of any Product Suspension to Customer and to provide updates regarding resumption of access following any Product Suspension. Kaleidoscope will use commercially reasonable efforts to resume providing access to the Product as soon as reasonably possible after the event giving rise to the Product Suspension is cured. Kaleidoscope will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Customer User may incur as a result of a Product Suspension.
2.5 Implementation and Support Services. Kaleidoscope will provide the level of implementation and support services identified in an applicable Order Form. The Parties will set forth an estimated timeline for the provision of any implementation Services in the Order Form.
2.6 Ad Hoc Professional Services. To the extent that Customer requires specific deliverables that are tailored to Customer’s specifications that the Parties intend to be owned by Customer (“Deliverables”), the Parties will document the same as Deliverables in an Order Form, along with the anticipated timeline for completion (“Schedule”) and any mutually agreed specifications or acceptance criteria (“Criteria”). For clarity, the Kaleidoscope Product and any updates made by Kaleidoscope during the Term of the Agreement will not be considered Deliverables Customer will provide Kaleidoscope written notice of any material non-conformity of the Deliverables as compared to the mutually agreed specifications or acceptance criteria. Kaleidoscope will use commercially reasonable efforts to bring any non-conforming Deliverable into material conformance with the mutually agreed specifications or acceptance criteria within a reasonable timeframe.
2.7 Customer Cooperation. Customer acknowledges that Customer’s timely provision of, and Kaleidoscope’s access to, Customer’s assistance, cooperation, and complete and accurate information and data from Customer’s officers, employees, and agents (“Cooperation”) may be essential to the performance of implementation or other Services. Cooperation includes designating a project manager to coordinate with Kaleidoscope during the performance of the implementation Services and allocating and engaging additional resources as may reasonably be required to assist Kaleidoscope in performing Services. Kaleidoscope shall not be liable for any deficiency or delay in delivery of Product or deviation from a Schedule arising from Customer’s failure to provide reasonable and timely Cooperation.
3. PRICING AND PAYMENT
3.1 Invoices. Kaleidoscope will invoice Customer electronically for Fees in accordance with all invoicing procedures set forth in the Order Form. Unless otherwise agreed in an Order Form, Kaleidoscope will send Customer an invoice for subscription renewals, including any proposed increase in Fees applicable for the next Renewal Term at least sixty (60) days in advance of the end of the then-current Term. In the event that Customer increases its consumption or moves to a higher tier of Product or Services during a committed Term, Kaleidoscope will invoice the Customer on a pro-rata basis for the increased usage for the remainder of the then-current Term.
3.2 Payment. Customer will pay all amounts not subject to a good faith dispute (“Undisputed Amounts”) set forth in an invoice within thirty (30) days of the date of such invoice. If Customer fails to make any Undisputed Amount when due, without limiting Kaleidoscope’s other rights and remedies: (i) Kaleidoscope may charge interest on the past due amount at the rate of 1.5% per month, or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Kaleidoscope for all reasonable costs incurred by Kaleidoscope in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for ten (10) days or more, Kaleidoscope may suspend Customer’s and its Customer Users’ access to any portion or all of the Product and suspend the performance of Services until such amounts are paid in full. Customer may withhold from payment any Fees that Customer disputes in good faith, pending resolution of such dispute, provided that Customer: (i) timely renders all Undisputed Amounts; (ii) notifies Kaleidoscope of the dispute prior to the due date for payment, specifying in such notice the amount in dispute and the reason for the dispute; (iii) works with Kaleidoscope in good faith to promptly resolve the dispute; and (iv) promptly pays any amount determined to be payable by resolution of the dispute.
3.3 Professional Service Rates. Rates for professional Services will be set forth in the applicable Order Form or SOW.
3.4 Taxes. Fees and other prices set forth in the Order Form are exclusive of any taxes, including any sales, use, value added, or excise tax or any other levy or governmental charge that may be assessed by any jurisdiction, whether based on gross revenue, delivery, possession or use of Services and any deliverables. Customer shall pay all taxes, levies or similar governmental charges.
4. TERMS AND TERMINATION
4.1 Term. The initial term of this Agreement begins on the date on which the Order Form is signed by Customer and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect until one (1) year from such date (the “Initial Term”). Unless earlier terminated, this Agreement will automatically renew for successive one (1) year terms unless either Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”).
4.2 Termination. In addition to any other express termination right set forth in this Agreement:
(i) Kaleidoscope may terminate this Agreement or an applicable Order Form, effective on written notice to Customer, if Customer: (A) fails to pay any Undisputed Amount when due hereunder, and such failure continues more than ten (10) days after Kaleidoscope’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 2.3;
(ii) either Party may terminate this Agreement or any Order Form or SOW, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or
(iii) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed 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.
4.3 Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Kaleidoscope IP. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund except as explicitly stated herein or otherwise agreed in writing by Kaleidoscope. Any provision that by its nature is intended to survive the expiration or termination of this Agreement shall survive.
5.1 Mutual Obligations. Confidential Information of the Disclosing Party will be maintained in confidence by the Receiving Party. The Receiving Party will safeguard the Confidential Information of the Disclosing Party using the same degree of care as it uses to safeguard its own Confidential Information of a like kind, but in no case less than a reasonable degree of care. The Receiving Party will ensure (a) access to the Disclosing Party’s Confidential Information is limited to those of its employees, officers, subcontractors and agents with a need to know such Confidential Information for the performance of its obligations under the Master Services Agreement, and (b) use of the Disclosing Party’s Confidential Information for any purpose other than to fulfill its obligations under the Master Services Agreement is strictly prohibited. Unless agreed to the contrary in a SOW, the Confidential Information of the Disclosing Party is and will remain the sole and exclusive property of the Disclosing Party and the Receiving Party will have no right in or to the Disclosing Party’s Confidential Information. Notwithstanding the forgoing, Customer agrees Kaleidoscope may display Customer’s logo on the page of its corporate Web site displaying Kaleidoscope client logos.
5.2 Exclusions. Confidential Information will not include information to the extent that: (a) such information is or becomes publicly available other than through any act or omission of the Receiving Party in breach of the Master Services Agreement; (b) such information was provided to the Receiving Party by a third party who was not under an obligation to the Disclosing Party with respect to such information; or (c) such information was in the possession of the Receiving Party at the time of the disclosure, or was independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information. The burden of proof that Confidential Information falls into any one of the above exclusions will be borne by the Party claiming such exemption(s).
5.3 Compelled Disclosure. In the event judicial or other legal process is served upon the Receiving Party (e.g., a subpoena) that legally compels disclosure of the Disclosing Party’s Confidential Information, the Receiving Party may comply with such judicial process, provided that the Receiving Party promptly notifies the Disclosing Party of such legal process (unless such notice is prohibited by applicable law), and will reasonably cooperate with the Disclosing Party, at the Disclosing Party’s expense, in any lawful effort to contest the validity or scope of such judicial process.
6. INTELLECTUAL PROPERTY OWNERSHIP
6.1 Ownership of Customer Material. As between the Parties, Customer is the owner of the Customer Materials, including Customer Application Data, and all intellectual property rights therein. Nothing in this Agreement will operate to give Kaleidoscope ownership in any Customer Materials or Customer Application Data.
6.2 License to Customer Materials. Customer hereby grants to Kaleidoscope a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Materials and Customer Application Data and perform all acts with respect to the Customer Materials as may be necessary for Kaleidoscope to provide the Product and Services to Customer.
6.3 Ownership of Deliverables. To the extent that an Order Form identifies Deliverables that the Parties intend to be owned by Customer, Kaleidoscope agrees to assign to Customer, upon payment in full of any Fees for such Deliverables, all Kaleidoscope’s right, title, and interest in and to such Deliverables (other than to the extent of any Kaleidoscope IP incorporated therein). To the extent any Deliverable incorporates Kaleidoscope IP, Kaleidoscope hereby grants to Customer a non-exclusive license to such Kaleidoscope IP to the extent necessary for Customer to use the Deliverable for its internal business purposes.
6.4 Applicant Data. As between the Parties, Kaleidoscope is the owner of Applicant Data. Kaleidoscope hereby grants Customer a limited, non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Applicant Data as may be necessary for Customer to evaluate Applicant’s application to the Award and otherwise process the Award.
6.5 Ownership of Kaleidoscope IP. As between the parties, Kaleidoscope is the owner of the Kaleidoscope IP and all intellectual property rights therein. Kaleidoscope reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Kaleidoscope IP.
7. DATA PROCESSING
7.2 Customer Application Data. With respect to any Personal Information included in Customer Application Data, the Parties acknowledge and agree that Kaleidoscope is acting as a party Processing such Personal Information on behalf of Customer (i.e., Customer is the “controller” and Kaleidoscope is the “service provider” or “processor” under applicable Data Protection Laws). As such, Kaleidoscope represents and warrants as follows: (a) Kaleidoscope will not retain, use, or disclose any Personal Information included in the Customer Application Data for any purpose other than for the purposes of providing the Services or as required or permitted by applicable laws; (b) Kaleidoscope shall not sell or process for the purposes of cross-context behavioral advertising such Personal Information; (c) Kaleidoscope shall not retain, use, or disclose such Personal Information outside of the direct business relationship between Kaleidoscope and Customer (except as required or permitted by applicable law); and (d) Kaleidoscope shall not combine such Personal Information with other Personal Information in violation of any Data Protection Laws. Customer may request information from Kaleidoscope regarding Kaleidoscope’s compliance with this section. Customer may, upon notice, take those reasonable and appropriate steps set forth in this Agreement to stop and remediate any unauthorized use of Personal Information included in the Customer Application Data by Kaleidoscope. Kaleidoscope will notify Customer of any consumer requests regarding any Customer Application Data. If Kaleidoscope subcontracts with another person in providing Services to Customer, Kaleidoscope will have a contract with such subcontractor that complies with Data Protection Laws. Upon termination or expiration of the Agreement for any reason, Kaleidoscope will destroy any Personal Information included in the Customer Application Data (including copies) in its possession or control at Customer’s request and choice in accordance with the Agreement. Notwithstanding, this requirement shall not apply to the extent Kaleidoscope is required by applicable law to retain some or all of such Personal Information.
7.3 Applicant Data. With respect to any Personal Information included in Applicant Data, the Parties acknowledge and agree that Kaleidoscope controls the purposes and the means of the Processing of such data. For the purposes of the California Consumer Privacy Act, Kaleidoscope would be considered the “business” and Customer would be a “third party.” Kaleidoscope is providing Customer such Personal Information for the limited purposes of processing an Award and information submitted by Applicants in connection with such Award, and Customer acknowledges and agrees that it may only use such data for such purposes. Customer is responsible for its secure use of the Services, including securing its account authentication credentials, protecting the security of Applicant Data when in transit to and from the Services and taking any appropriate steps to securely encrypt or backup any Applicant Data provided to it via the Services, and as otherwise may be required by Data Protection Laws. Kaleidoscope may take reasonable and appropriate steps to ensure that Customer uses the Personal Information in a manner consistent with Kaleidoscope’s obligations under Data Protection Laws. Kaleidoscope may, upon notice, take those reasonable and appropriate steps set forth in this Agreement to stop and remediate any unauthorized use of Personal Information included in Applicant Data by Customer. Customer will notify Kaleidoscope of any consumer requests regarding any Applicant Data.
7.4 Security Incidents. In the event that a Party becomes aware of any unauthorized or unlawful breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or unauthorized access to Personal Information in its possession or control in connection with this Agreement, such Party will notify the other Party without undue delay and shall provide timely information relating to the incident as it becomes known or as is reasonably requested by the other Party, unless otherwise prohibited by law or otherwise instructed by a law enforcement or supervisory authority. The Party experiencing the incident will take reasonable steps to mitigate the effects of the incident and provide reasonable assistance and cooperation regarding any notifications that the other Party is legally required to send to affected individuals and regulators. Kaleidoscope’s liability for a a security incident to Customer and any third party is subject to the following conditions: (a) the incident is caused by Kaleidoscope’s violation of Data Protection Laws; and (b) excluding liability caused by acts or omissions of Customer, or any person acting on behalf of or jointly with Customer.
8.1 Kaleidoscope Indemnity. Kaleidoscope shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Product, Services, or Deliverables, or Customer’s use thereof in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights, provided that Customer promptly notifies Kaleidoscope in writing of such Third-Party Claim, cooperates with Kaleidoscope, and allows Kaleidoscope sole authority to control the defense and settlement of such Third-Party Claim.
8.2 Mitigation. If a Third Party-Claim is made or appears possible, Customer agrees to permit Kaleidoscope, at Kaleidoscope’s sole discretion, to (a) modify or replace the Product, Services, or Deliverable or component or part thereof, to make it non-infringing, or (b) obtain the right for Customer to continue use. If Kaleidoscope determines that neither alternative is reasonably available, Kaleidoscope may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer, and provide a pro-rata refund of any prepaid subscription fees applicable to periods after the date of Kaleidoscope’s notice of termination. Sections 8.1 and 8.2 will not apply to the extent that the alleged infringement arises from: (x) use of the Product, Services, or Deliverable in combination with data, software, hardware, equipment, or technology not provided by Kaleidoscope or authorized by Kaleidoscope in writing; (y) modifications to the Product, Services, or Deliverable not made by or on behalf of Kaleidoscope; or (z) Customer Materials.
8.3 Customer Indemnity. To the fullest extent permitted by applicable law, Customer shall indemnify, defend, and hold harmless Kaleidoscope from and against any Losses resulting from any Third-Party Claim that the Customer Materials, or any use of the Customer Materials in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights.Sole Remedy. THIS SECTION 8 SETS FORTH CUSTOMER’S SOLE REMEDIES AND KALEIDOSCOPE’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE PRODUCT, SERVICES, OR DELIVERABLES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
8.4 Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW AND REGARDLESS OF DAMAGES THEORY, IN NO EVENT (A) WILL KALEIDOSCOPE BE LIABLE TO CUSTOMER FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR DATA), EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (B) WILL KALEIDOSCOPE’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT CUSTOMER ACTUALLY PAYS KALEIDOSCOPE UNDER THIS AGREEMENT FOR THE PRODUCT, SERVICES, OR DELIVERABLE THAT GAVE RISE TO THE CLAIM DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.
THE PARTIES ACKNOWLEDGE AND AGREE THAT THE PURPOSE OF THIS PARAGRAPH IS TO PROVIDE FOR THE ALLOCATION OF RISK AND LIMIT POTENTIAL LIABILITY GIVEN THE FEES PAID, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF KALEIDOSCOPE WERE TO ASSUME ANY FURTHER LIABILITY THAN PROVIDED FOR HEREIN.
9. REPRESENTATION, WARRANTIES AND DISCLAIMERS
9.1 Representations and Warranties. Each Party represents to the other Party that (a) it has the full power and authority to enter into the Agreement and to grant the licenses herein to the other Party and (b) it will comply with all laws and regulations applicable to its provision, or use, of the Products and Services as applicable.
9.2 Product Performance. Kaleidoscope warrants that the Product will materially conform to any then-current description of features and functionality provided by Kaleidoscope to its customers from time to time. Customer’s sole and exclusive remedy and Kaleidoscope’s entire liability for any breach of this performance warranty shall be for Kaleidoscope to make commercially reasonable efforts to deliver an update or workaround within a reasonable timeframe, given the nature of the non-conformity. The foregoing warranty does not apply to any access to Product provided free of charge or on an evaluation or trial basis, all of which are, unless otherwise expressly agreed by Kaleidoscope, provided as-is and without warranty of any kind.
9.3 Professional Services. Kaleidoscope represents and warrants that (A) it will provide competent Kaleidoscope Personnel with sufficient skill, knowledge and training, (B) and Kaleidoscope Personnel will provide Services in a diligent and professional manner.
9.4 Deliverable Performance. Kaleidoscope warrants that any Deliverables will materially conform to any mutually agreed upon Criteria for ninety (90) days following delivery to Customer. Customer’s sole and exclusive remedy and Kaleidoscope’s entire liability for any breach of this Deliverable performance warranty shall be for Kaleidoscope to make commercially reasonable efforts to re-perform Services to bring the Deliverable into material conformity within thirty (30) days of Customer’s notice of the non-conformity.
9.5 Disclaimers. EXCEPT EXPLICITLY SET FORTH IN THIS AGREEMENT, THE PRODUCT AND SERVICES ARE PROVIDED “AS IS” WITH NO ADDITIONAL REPRESENTATIONS OR WARRANTIES AND KALEIDOSCOPE SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.
Kaleidoscope, at its sole cost and expense, will maintain, secure and keep in force during the term of the Agreement, adequate insurance coverages with respect to the Kaleidoscope’s potential liability, with limits as set forth below.
Commercial general liability or umbrella liability, with limits not less than $1,000,000 per occurrence and $1,000,000 in the aggregate, including bodily injury and property damage and products and completed operation and advertising liability, and contractual liability;
Workers’ compensation with limits no less than the greater of $500,000 or the minimum amount required by applicable law; and
Errors and Omissions coverage with limits no less than $1,000,000 per occurrence and $1,000,000 in the aggregate.
Technology Errors and Omissions coverage with limits no less than $10,000 per occurrence and $2,000,000 in the aggregate.
Either party hereto may assign this Agreement to a successor-in-interest pursuant to an acquisition of such party (whether by merger, stock or equity sale, or asset sale) without the other party’s consent, provided however that Customer may not assign this agreement to any competitor of Kaleidoscope without Kaleidoscope’s express written consent. No rights or obligations under this Agreement may be assigned or delegated except as provided in this section without the prior written consent of the other party, and any assignment or delegation in violation of this section shall be void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
Unless otherwise agreed in an Order Form, upon execution of this Agreement, the Parties agree to make a public announcement of the fact Customer and Kaleidoscope have entered into a business relationship.
Any notice required to be sent or served under this Agreement may be delivered by hand, confirmed electronic mail, confirmed fax transmission, or mail, postage prepaid, certified, return receipt requested to the Parties’ current mailing address. Notices sent via electronic mail will be deemed sufficient and delivered if provided it is confirmed as received by the other Party.
14. EQUITABLE RELIEF
Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 5, or, in the case of Customer, Section 2.3, could cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
15. INDEPENDENT CONTRACTORS
Kaleidoscope is an independent contractor and Kaleidoscope Personnel assigned to provide Services under the Agreement will not be, nor be deemed to be for any purpose, employees or agents of Customer. Kaleidoscope is solely responsible, at its own expense, for complying with all applicable laws, and the requirements of any governmental authority having jurisdiction relating to Kaleidoscope’s engagement of Kaleidoscope Personnel. Kaleidoscope may subcontract any part or all of the Services to any third party as Kaleidoscope determines in its sole discretion; provided that Kaleidoscope shall remain liable for the acts and omissions of its subcontractors.
16. 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 to make payments to the other Party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the affected Party’s reasonable control, including, without limitation: acts of God; flood, fire or explosion; war, invasion, riot or other civil unrest; actions, embargoes or blockades in effect on or after the date of this Agreement; national or regional emergency; any other event which is beyond the reasonable control of such Party (each of the foregoing, a “Force Majeure Event”). A Party whose performance is affected by a Force Majeure Event shall give notice to the other Party, stating the period of time the occurrence is expected to continue and shall use diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
17. ENTIRE AGREEMENT
This Agreement contains the entire agreement between the Parties and supersedes any and all prior agreements, discussions or understandings, written or oral, between the Parties with respect to the Product and Services. In the event of any conflict between the terms and conditions of this Agreement and any terms and conditions that may be set forth on any invoice, purchase order, and/or verbal agreements, the terms of this Agreement will govern. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement shall remain in full force and effect. This Agreement may not be modified, changed, or terminated orally, so any change, modification, addition, or amendment shall only be valid if in writing and acknowledged by both Parties.