Terms of Service

Introduction

These Terms of Service ("Terms") govern your access to and use of the OnNiche® Marketing App at http://app.onniche.com/, the website at https://onniche.com/, and related tools and services (together, the "Platform"), and the marketing and creative services we provide (the "Services"), all provided by Kaleido Inc. dba OnNiche® and OnNiche® by Kaleido ("Company," "we," "us," or "our").

These Terms are incorporated into and form part of your Service Agreement. By signing an order form, quote, or services agreement with us that references these Terms (your "Service Agreement"), or by continuing to use the Platform or Services, you agree to these Terms.

Relationship to your Service Agreement. Your Service Agreement governs the commercial terms of your engagement, such as price, dates, renewal, and cancellation. These Terms govern everything else. The two are read together.

How these Terms are organized. Part 1 covers general obligations. Part 2 covers the Platform, your data, and AI. Part 3 covers marketing and creative services. Part 4 covers legal provisions. All four apply to you.

Order of precedence. Where documents conflict, the following order controls, from highest to lowest: (a) your Service Agreement; (b) Part 3 of these Terms; (c) Part 2 of these Terms; (d) Parts 1 and 4 of these Terms; (e) our Privacy Policy at https://onniche.com/privacy-policy, which is also incorporated by reference.

1. Definitions

In these Terms:

"Agreement" means these Terms together with your Service Agreement, read together as provided in the Introduction.

"Client" and "you" mean the person or organization that has signed a Service Agreement with us.

"User" means an individual authorized by you to access the Platform under your Client account.

"Platform" means the OnNiche® Marketing App, our websites, and any other tool or assessment we make available.

"Services" means the marketing and creative services described in Section 17.

"Service Agreement" has the meaning given in the Introduction.

"Content" has the meaning given in Section 20.

"Client Data" has the meaning given in Section 12.

"Sensitive Information" has the meaning given in Section 3.

"AI Features" has the meaning given in Section 13.

"AI Tools" has the meaning given in Section 13.

Part 1: General Obligations

2. Acceptable Use

You agree not to, and not to permit any User or third party to: (a) use the Platform in violation of any law or regulation; (b) access or attempt to access any account, data, or system you are not authorized to access, or defeat any security or authentication measure; (c) reverse engineer, decompile, disassemble, or attempt to derive the source code or structure of the Platform, except as applicable law expressly permits; (d) scrape or collect content or other users' information by automated means; (e) introduce malware or interfere with, disrupt, or place an unreasonable load on the Platform; (f) resell, sublicense, rent, lease, or make the Platform available to third parties as a service, or use it to build a competing product; (g) register for more than one account or impersonate any person or entity; or (h) upload or transmit content that is unlawful, infringing, or that you do not have the right to submit. Company may suspend or terminate access for any User who violates these Terms.

3. Prohibited Data: No Sensitive Information

The Platform, including the Marketing App, is intended for marketing planning and content development only. It is not designed, offered, or authorized to receive, store, or process Sensitive Information, and you must not rely on it to do so. You shall not, and shall not permit any User or other person to, upload, enter, transmit, or otherwise make available any Sensitive Information to or through the Platform, whether that information relates to you, your personnel, or your own clients, prospects, or contacts. You represent and warrant, each time you submit information, that it contains no Sensitive Information.

"Sensitive Information" means: (a) Social Security, driver's license, state identification, passport, or other government-issued identification numbers; (b) financial account numbers, credit or debit card numbers, or any security code, access code, password, or credentials that would permit access to a financial account; (c) precise geolocation; (d) racial or ethnic origin, religious or philosophical beliefs, or trade union membership; (e) the contents of a person's mail, email, or text messages to which Company is not a party; (f) genetic or biometric information; (g) information concerning a person's health, sex life, or sexual orientation; and (h) any other information classified as "sensitive," "special category," or similarly protected under applicable privacy laws, or the unauthorized disclosure of which would trigger a notification obligation under any data-breach law.

You are solely responsible for any Sensitive Information you or your Users submit in violation of these Terms, and your indemnification obligations in Section 28 extend to it. Company has no obligation to monitor for Sensitive Information, but may, at its discretion and without liability to you, remove it, refuse to process it, or suspend or terminate access upon becoming aware that it has been submitted.

4. Confidential Information and Trade Secrets

Client acknowledges that particular content in the materials prepared for Client by Company is based on templates developed by Company that may not be unique to Client or Client's business. Client further acknowledges that Company shall retain the rights to such templated content, to be used in Company's business at Company's discretion. Subject to the foregoing, Company will hold in strict confidence and not disclose to any third parties, other than those who have a need to know in order to perform work under this Agreement, all personal or proprietary information, strategy, Client lists, and data belonging to Client and not available to the general public ("Confidential Information"), without Client's prior written consent. Information already known to Company or later conveyed independently to Company by a third party, who has not breached a confidentiality agreement with Client, shall not be considered Confidential Information.

Client shall not input Company's proprietary methodologies, frameworks, templates, scorecards, or other confidential or proprietary information of Company into any third-party AI tool for the purpose of training, fine-tuning, replicating, or extracting derivative methodologies, without Company's prior written consent.

5. Legal Compliance

Client shall ensure that all Content that it directs Company to print, upload, publish, or distribute is accurate and complies with applicable federal and state laws, regulations, and regulatory requirements (including those of the Securities and Exchange Commission, Federal Trade Commission, and Financial Industry Regulatory Authority), particularly but not limited to those pertaining to advertising, marketing, professional practice, and performance claims. Client shall retain written substantiation for any claims or representations that it may make.

6. Accessibility Compliance

Services do not include, and shall not be construed to include, ensuring that the Client's website or other marketing materials developed are compliant with the Americans with Disabilities Act (ADA) or any other similar laws, rules, or regulations relating to accessibility (collectively, "Accessibility Laws"). The Client acknowledges that it is solely responsible for ensuring that its marketing is compliant with Accessibility Laws, and shall engage a qualified third party, at its sole expense, to perform any necessary audits, assessments, or other services to ensure compliance with Accessibility Laws. Company shall have no liability or responsibility for any claims, damages, liabilities, or expenses arising out of or relating to the Client's non-compliance with Accessibility Laws, and the Client agrees to indemnify, defend, and hold Company harmless from any such claims, damages, liabilities, or expenses.

7. No Guarantees

Company shall use commercially reasonable efforts to satisfy Client's objectives and desired outcomes and will use its expertise in presenting options and proposals to Client. Client understands that various factors influence the outcome of any marketing campaign, however, and that it may be necessary to try different approaches before finding one or more that work. Therefore, Company makes no guarantees, warranties, or representations regarding the outcome of its work and efforts under this Agreement. Client agrees that all final decisions regarding strategy, materials, or any of Company's services must be made by Client.

8. Independent Contractor and Nonexclusive Agreement

Company is an independent contractor, and no partnership, joint venture, or fiduciary or employment relationship is intended or created by reason of this Agreement. Neither party is the legal representative or agent of the other party. Client acknowledges that Company is in the business of providing services to professional services firms including financial advisors and agrees that this Agreement is nonexclusive and shall not bar Company from representing other clients in the same industry or geographic region as Client.

9. Contractors

Nothing shall preclude Company from utilizing subcontractors, outside contractors, vendors, or other persons ("Contractors") to provide various components of the Services. Company will require any Contractor with access to Client's Confidential Information or Client Data to be bound by confidentiality obligations no less protective than those in Section 4, and Company remains responsible for its Contractors' performance of the Services.

Part 2: Platform, Data, and AI

10. Eligibility and Accounts

The Platform is intended for business use by professionals and firms. All Users must be at least 18 years old. You are responsible for the acts and omissions of your Users, for all activity under your account, and for ensuring that each of your Users complies with these Terms. You agree to provide accurate registration information and to keep login credentials confidential. Access is provided on a per-user basis as set out in your Service Agreement or applicable quote; you may not share access beyond the seats you have purchased. Notify us promptly of any unauthorized use of your account.

11. License to Use the Platform

Subject to these Terms and payment of any applicable Fees, Company grants you a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to access and use the Platform for your internal business purposes. Company reserves all rights not expressly granted.

12. Client Data and Data Retention

"Client Data" means the information, files, text, and images you or your Users submit to or create within the Platform. As between you and Company, you own your Client Data, and Company's confidentiality obligations in Section 4 apply to it. You grant Company a non-exclusive, worldwide, royalty-free license to host, store, process, display, and use Client Data as needed to provide, secure, and improve the Platform and Services, and as otherwise permitted in your Service Agreement or the Privacy Policy. Company will not sell Client Data or use it to train publicly available AI models.

Company retains Client Data during the term of your subscription or engagement and may continue to retain it afterward. You may request deletion of Client Data at any time, and Company will delete or de-identify it within 45 days of a verified request, except where retention is required by applicable law or agreed otherwise in writing. Company may retain backup copies until they expire in the ordinary course of its backup cycle, and may retain aggregated or de-identified information that does not identify you, your firm, or your clients. You may export your Client Data at any time while your account is active, and during the Data Export Period described in Section 16.

Where you enter information about your own clients, prospects, or contacts into the Platform, you are the controller of that information and Company acts as your processor or service provider, processing it only to provide the Platform and on your instructions. You are responsible for having the right to provide that information and for giving any notices your own obligations require, including under Regulation S-P if you are a registered investment adviser. If your firm requires a data processing agreement, contact privacy@onniche.com. Any data processing agreement the parties execute supplements these Terms and controls over this Section to the extent of any conflict.

Company will notify Client without undue delay, and in any event within 72 hours, after becoming aware of a security incident that has compromised Client Data, and will provide the information then reasonably available to Company to assist Client in meeting its own notification obligations. 

13. AI Features and AI Tools

The Platform includes features that use artificial intelligence to help generate marketing outputs such as personas, topics, or draft content ("AI Features," offered in the Marketing App as "Studio"). Information you provide to an AI Feature, together with Client Data stored in other areas of the Platform that an AI Feature accesses to complete your request (collectively, "inputs"), is processed to produce outputs for you, by Company or by third-party AI providers acting on its behalf. Company does not review AI Feature outputs before you receive them and does not check them for accuracy, completeness, or compliance with any law or regulation, including the rules governing investment adviser advertising and marketing. Deliverables Company produces under a Service Agreement are handled differently and are addressed in Section 17. Company does not use your inputs to train publicly available AI models, and Company's third-party AI providers are contractually prohibited from using your inputs to train their models. AI outputs are suggestions only, may be inaccurate or incomplete, and are not legal, financial, investment, tax, or compliance advice; you are responsible for reviewing and approving them before use. You represent that you have the rights needed to submit your inputs, and you must not submit Sensitive Information to an AI Feature. Company's handling of information you provide to AI Features is described in the Privacy Policy.

Certain AI Features research a topic on the internet to complete a request. When they do, Company transmits the topic and any notes you supply to third-party search providers through its AI provider. Company does not transmit your account credentials, billing information, or other Client Data for this purpose. Because the notes you supply are transmitted, you must not include information identifying your own clients, prospects, or contacts in a topic or note submitted to an AI Feature that performs research.

The Platform also includes an AI support agent. Support conversations may be handled by that agent or by Company's team, and are processed by Company's support provider and the third-party AI models it uses. 

Client acknowledges and consents that Company may also use AI tools operated by Company or by third-party AI providers ("AI Tools") in the performance of Services, including for research, drafting, ideation, analysis, and the production of deliverables, and Client Data may be processed through those tools. Company applies human review and editorial judgment to AI-assisted output prior to delivery to Client, subject to the limits described in Section 17, and will use AI Tools only under commercial terms that prohibit the provider from using submitted information to train its models and provide reasonable data protection. Client further acknowledges that AI Tools may produce inaccurate, incomplete, or fabricated output, and that final review and approval of all deliverables under Sections 7 and 21 remains Client's responsibility. Where Services involve content subject to regulatory review (including but not limited to requirements of the Securities and Exchange Commission, the Financial Industry Regulatory Authority, or state regulatory authorities), Client is responsible for ensuring that AI-assisted content meets all applicable compliance, disclosure, and recordkeeping obligations, including any obligations specific to the use of AI in marketing or client communications.

14. Our Platform Intellectual Property

As between the parties, Company (or its licensors) owns the Platform, including its software, design, and all associated intellectual property, and all related trademarks, including "OnNiche®." Except for the limited license in Section 11 and the rights granted in Sections 23 and 24, no rights in the Platform are transferred to you. This Section does not limit your ownership of Content or Client Data.

15. Service Availability

Company may add, change, suspend, or discontinue any part of the Platform at any time. Company does not warrant that the Platform will be uninterrupted, timely, secure, or error-free, and is not liable for any modification, suspension, or discontinuation except as expressly stated in a Service Agreement.

16. Suspension and Termination of Platform Access

Company may suspend or terminate your access to the Platform at any time if it reasonably believes you have violated these Terms, if your account is past due, or to protect the Platform or other users. You may stop using the Platform at any time; cancellation of paid services is governed by your Service Agreement. Termination of Platform access does not by itself terminate a signed Service Agreement. Company recommends exporting your Client Data before your subscription ends. Following termination or expiration of your subscription or engagement, you will have 30 days (the "Data Export Period") to request an export of your Client Data in a standard format (such as PDF, Word, or CSV). If Company discontinues the Platform or ceases to provide the Services, Company will give Client at least 60 days' notice where reasonably practicable and will make Client Data available for export throughout that period. Retention and deletion of Client Data after termination are otherwise governed by Section 12.

Part 3: Marketing and Creative Services

17. Services

Company agrees to provide marketing and creative services ("Services") as set forth in this Agreement, which may be amended or supplemented from time to time through quotes or scope-of-work documents. The terms of this Agreement shall apply to all Services unless specifically stated otherwise.

Deliverables Company produces under a Service Agreement are reviewed by a member of Company's team before delivery. That review is not a compliance review, a legal opinion, or a substitute for Client's own supervisory and approval procedures. Company is not a compliance professional and does not verify or certify that any deliverable complies with applicable law or regulation. Client's obligations under Section 5 (Legal Compliance) and Section 21 (Client Approval of Content) apply to every deliverable, whether produced by Company under a Service Agreement or generated by an AI Feature. 

18. Fees

In consideration of the performance of the Services by Company, Client shall pay the fees set forth in this Agreement or any future quote ("Fees"). Fees are non-refundable except as required by applicable law.

19. Term

This Agreement is effective upon execution of your Service Agreement and remains in effect during any period in which Company is providing Services or any Service Agreement, proposal, or scope-of-work document is in effect, and continues thereafter until terminated as provided in the applicable Service Agreement.

20. Content

Client shall be responsible for the accuracy, quality, and integrity of all information, data, text, photographs, copy, images, graphics, messages, statements, representations, and all other materials ("Content") that it transmits or makes available to Company, and Company shall not be liable for the use of the Content or errors and omissions contained in the Content that it receives from Client or a third party.

21. Client Approval of Content

Client shall provide prior written approval of all Content prior to Company's initiation of its printing, uploading, publication, or distribution. Client shall be responsible for any unbudgeted costs resulting from revisions that Client may direct Company to make to materials Client previously approved.

22. Copyright and Trademark Standards, Ownership of Materials

Company will adhere to each of Client's name and trademark standards and policies that Client furnishes to Company, and ensure that Client has reviewed all advertising for proper name and trademark use. Company shall claim no ownership in the Content owned by Client or a third party provided to Company for inclusion in the Services.

23. License of Rights and Copyright

Subject to the provisions of Section 4 and Company's portfolio rights below, Company grants to the Client the non-exclusive, perpetual, and worldwide rights to reproduce, display, distribute, and create derivative works based on the selected final designs in all media. All preliminary, unused, and in-progress artwork remains the property of the Company, and no rights to use such preliminary works are granted hereunder. Under U.S. copyright law, Company retains all copyright in and to the preliminary works and the final design unless specifically stated otherwise. Client acknowledges that deliverables may incorporate elements generated or assisted by AI Tools, and that the copyrightability and registrability of such elements under U.S. law is evolving and uncertain. Company makes no representation or warranty regarding the copyright status of AI-generated components of deliverables.

24. Portfolio Rights

Company retains the nonexclusive, perpetual, and worldwide rights to display, reproduce, and distribute the designs in Company's portfolio and website, and third-party trade publications or exhibits, solely for the purpose of promoting or exemplifying Company's work, and the right to be credited with copyright ownership and authorship of the designs in connection with such use.

25. Licenses, Releases and Authorizations

Company shall obtain all releases, licenses, or authorizations, or any other permissions to use property or rights belonging to third parties, for the use of photographs, copyrighted materials, or artwork, if any, that Company separately obtains for use in performing Services for Client and that are not part of the Content provided by Client. Client understands that ownership of artwork, illustrations, lettering, or other material copyrighted or otherwise owned by third parties may not be transferred between the owner and Client or the Company and Client. Designs and images from Canva.com are provided for the exclusive use of the Client and may not be altered or reused.

Part 4: Legal Provisions

26. Disclaimer of Warranties

In addition to Section 7 (No Guarantees), the Platform, the Services, and all deliverables are provided "as is" and "as available," without warranties of any kind, whether express, implied, or statutory, including implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement, and any warranty arising from a course of dealing or usage of trade. Nothing on the Platform or in any deliverable is legal, financial, investment, tax, or regulatory-compliance advice.

27. Limitation of Liability

To the fullest extent permitted by law, Company and its officers, employees, contractors, and agents will not be liable for any indirect, incidental, special, consequential, exemplary, or punitive damages, or for lost profits, revenue, data, or goodwill, arising out of or relating to this Agreement, the Platform, or the Services, even if advised of the possibility. Except for liability arising from (a) Company's gross negligence or willful misconduct, or (b) Company's breach of its confidentiality obligations under Section 4, Company's total aggregate liability arising out of or relating to this Agreement, the Platform, or the Services, whether in contract, tort, or otherwise, will not exceed the greater of (i) the Fees you paid in the 12 months before the event giving rise to the claim, or (ii) US$100. Some jurisdictions do not allow certain limitations, so some of the above may not apply to you.

28. Indemnification and Defense

Client shall indemnify and hold harmless Company to the fullest extent permitted by law from and against any and all claims, suits, actions, loss, costs, damage, liability, culpability, responsibility, or other expenses (including attorneys' fees, dispute resolution, and court costs) (collectively, "Liabilities") based upon, relating to, or arising out of Company's performance of Services, except such Liabilities resulting from Company's gross negligence or willful misconduct. Client shall, at Company's option, defend Company against any such claims with counsel reasonably acceptable to Company, or reimburse Company for the costs of defending such claims.

29. Assignment

This Agreement is personal to Client and is not assignable by Client without prior written consent of Company. Company is permitted, at its sole discretion, to assign the Agreement or any rights hereunder to any corporation, company, or other entity that directly or indirectly controls, is controlled by, or is under common control with Company without giving prior notice.

30. Governing Law, Dispute Resolution and Jurisdiction

This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of California. The parties agree to meet and confer in good faith to resolve any disputes arising out of this Agreement. If such disputes are irresolvable, the parties shall enter into private mediation prior to initiating any arbitration. Any controversy, dispute, or claim arising out of or related to this Agreement or breach of this Agreement that is irresolvable by private mediation shall be settled solely by binding arbitration conducted in the City of San Diego, California. Such arbitration shall be governed by the JAMS Comprehensive Arbitration Rules & Procedures in effect as of the time of the filing of any arbitration proceeding. The parties waive any jurisdictional claims or any claims that the venue is inconvenient. Each of the parties hereto shall bear its own costs and expenses incurred in connection with this Agreement.

This Section may not be amended by Company under Section 33. It may be changed only by a written agreement signed by both parties.

31. Force Majeure

Any delay in or failure of performance by either party under this Agreement will not be considered a breach of this Agreement and will be excused to the extent caused by any occurrence beyond the reasonable control of such party and without its fault or negligence, including but not limited to acts of God, pandemics or public health emergencies, war or acts of terrorism, power outages, internet or telecommunications failures, cyber attacks, labor disputes, supplier or subcontractor failures, and governmental restrictions.

32. Notices

Notices to Company must be in writing and sent to:

Kaleido Inc. dba OnNiche® 501 W Broadway, Suite 800 San Diego, CA 92101

with a copy by email to info@onniche.com.

Notices to you may be sent to the email address associated with your account or, where you have signed a Service Agreement, to the address stated in it. You are responsible for keeping your account email address current. Notices are effective when delivered by hand or by commercial overnight courier, when sent electronically with confirmation of receipt, or three business days after being sent by registered or certified mail, return receipt requested.

33. Changes to These Terms

How we make changes. Company may update these Terms from time to time. We will revise the effective date above and post the updated version on our website.

Material changes. For changes that materially reduce your rights or materially increase your obligations, we will give you at least 30 days' notice by email to your account email address before the change takes effect.

Changes apply going forward only. A change never applies to a dispute or claim that arose before the change took effect.

When a material change takes effect for you. A material change takes effect on your first billing date falling at least 30 days after we send notice. Until then, the version of these Terms in effect before the change continues to govern you. If you do not wish to accept the change, you may cancel in accordance with your Service Agreement before that billing date. Where you have signed a Service Agreement with a term longer than one billing period, the version in effect when that term began continues to govern until the term ends.

Exceptions. Changes required by law, by a regulator, or by a court, and changes reasonably necessary to protect the security or integrity of the Platform or its users, take effect on the date stated in our notice, including during a paid term in progress.

New features. If we introduce a new feature governed by additional or different terms, your use of that feature constitutes acceptance of those terms for that feature.

Dispute resolution is excluded. Section 30 may not be changed by this Section.

34. Survival

The following Sections survive termination or expiration, whatever the cause: 1 (Definitions), 3 (Prohibited Data), 4 (Confidential Information), 5 (Legal Compliance), 6 (Accessibility Compliance), 7 (No Guarantees), 12 (Client Data and Data Retention), 13 (AI Features), 14 (Our Platform Intellectual Property), 16 (Suspension and Termination of Platform Access, as to the Data Export Period), 18 (Fees), 20 (Content), 22 (Copyright and Trademark Standards), 23 (License of Rights and Copyright), 24 (Portfolio Rights), 25 (Licenses, Releases and Authorizations), 26 (Disclaimer of Warranties), 27 (Limitation of Liability), 28 (Indemnification and Defense), 30 (Governing Law, Dispute Resolution and Jurisdiction), 32 (Notices), and this Section 34, together with any other provision that by its nature is intended to survive termination or expiration.

35. Miscellaneous

These Terms, together with your Service Agreement and our Privacy Policy, constitute the entire understanding between the parties with respect to the subject matter hereof and supersede all prior written or oral proposals, understandings, agreements, and representations on that subject matter, except that these Terms do not supersede or modify any Service Agreement signed by both parties, which remains in force according to its own terms and is read together with these Terms as provided in the Introduction.

If any provision of this Agreement is determined to be unenforceable, the remainder of the provision and this Agreement shall remain in full force and effect as if the invalid or void provision had never been part of this Agreement.

Notices are governed by Section 32.