Terms of Service
THIS SERVICES SUBSCRIPTION AGREEMENT (the "Agreement") is made and entered into by and between KelvinData (“Kelvin Data”) and Customer (as defined in the applicable Services Agreement or customer account). This Agreement describes the terms under which Kelvin Data will make its services available to Customer.
Kelvin Data reserves the right to change the Services Subscription Agreement from time to time. You should review the Services Subscription Agreement regularly. They can be found at https://www.kelvindata.com/terms. The changes will become effective fifteen (15) days after they are posted, except if the changes apply to new functionality, in which case they will be effective immediately. If you do not agree to the modified terms for the Service, You may stop using the service at any time. If you continue to use the Service, You will be deemed to have accepted the modifications.
The parties agree as follows:
1. ORDERING AND SUBSCRIPTION PERIOD
1.1 Ordering. By executing one or more Services Agreements under this Agreement or by signing up for a Kelvin Data account, Customer may obtain access to the content, data, application program interface (“API”) and other features offered through Kelvin Data’ proprietary platform of servers, software and technology (the “Services”). The specific Services available to Customer are identified in the Services Agreement or in Customer’s Kelvin Data account. All use of the Services by Customer is subject to the terms and conditions of this Agreement.
1.2 Subscription Period. The period of access to the Services will be specified in the applicable Services Agreement (“Subscription Period”) and if no Services Agreement is executed, or no period is specified, the Subscription Period will be one (1) months. A Services Agreement is not cancelable by Customer during a Subscription Period. At the end of the initial Subscription Period, the Subscription Period will automatically renew for successive one (1) month terms, unless Customer notifies Kelvin Data in writing 7 days prior to the termination of the current Subscription Period, or as otherwise specified in a Services Agreement. For Services Agreement that contain a Subscription Period of more than one year that renew for a successive year at the end of the Subscription Period, the price of the successive year will be at the same price paid in the final year of the initial Subscription Period.
1.3 API Call Purchase. The purchase of credits ("API Calls") to use the Services will be specified in the applicable Services Agreement, and the purchase of API Calls is not cancelable by Customer. API Calls expire twelve (12) months after purchase, upon which the Subscription Period will automatically renew for successive one (1) month terms, unless Customer notifies Kelvin Data in writing 7 days prior to the termination of the current Subscription Period, or as otherwise specified in a Services Agreement.
Should Customer's usage exceed 95% of the API Calls it has purchased, Customer will automatically be granted a subsequent allotment of API Calls equal to the number of API Calls previously purchased ("Rollover Purchase"), which will expire twelve (12) months from the Rollover Purchase date (“New Subscription Period”). Upon the New Subscription Period expiring, the Subscription Period will automatically renew for successive one (1) month terms, unless Customer notifies Kelvin Data in writing 7 days prior to the termination of the current Subscription Period, or as otherwise specified in a Services Agreement.
Customer agrees to pay the same purchase price for each Rollover Purchase API Calls as for the initial allotment of API Calls, unless otherwise agreed in a Services Agreement. Customer may be granted an unlimited number of Rollover Purchases.
2. PLATFORM USE AND RESTRICTIONS
2.1 Services License. Kelvin Data hereby grants to Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable right and license to access the Services specified in the Services Agreement or in Customer’s account during the Subscription Period for its internal business purposes. Should the Subscription Period end, or should Customer decline to renew their Services Agreement, then Customer's license to the Services specified in the Services Agreement will be revoked.
2.2 Data License. Kelvin Data hereby grants to Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable right to license to access and use the data provided to Customer during the Subscription Period for its internal business purposes, to display Kelvin Data-supplied data to Customer’s own customers (“End Users”) on Customer’s platform or within Customer’s product and to maintain Kelvin Data-supplied data in Customer’s database for the purpose of performing calculations and mapping Kelvin Data data against Customer’s own data. Should the Subscription Period end, or should the Customer decline to renew their Services Agreement, then Customer's license to the data specified in the Services Agreement will be revoked.
2.3 Account. To use the API, you will be asked to create a Kelvin Data account. As part of the account creation process, you’ll be asked to provide your name, e-mail address, and create a password. Until you register for a Kelvin Data account, your access to the Services will be limited to what is available to the general public. When registering for a Kelvin Data account, you must provide true, accurate, current and complete information about yourself as requested during the account creation process. You must keep that information true, accurate, current.
You are solely responsible for all use (whether or not authorized) of the Services under your Kelvin Data account, including the quality and integrity of your Customer Data and eech Customer Application (as defined below). You are not permitted to share your account login or API Key with any other individuals or companies, or to enable any other individuals or companies to use the Kelvin Data Services. You are also solely responsible for all acts and omissions of anyone who has access to or otherwise uses any Customer Application. You agree to take all reasonable precautions to prevent unauthorized access to or use of the Services and will notify us promptly of any unauthorized access or use. We will not be liable for any loss or damage arising from unauthorized use of your Kelvin Data account. You will be solely responsible, at your own expense, for acquiring, installing and maintaining all hardware, software and other equipment as may be necessary for you and each End User to connect to, access, and use the Services.
2.4 Account Password and Security. Customer’s account with Kelvin Data will provide Customer with access to the Services and the API and other functionality that Kelvin Data may provide from time to time. Customer shall protect its passwords and take full responsibility for Customer's own as well as any third party use of the Customer account. Customer is solely responsible for any and all activities that occur under its accounts, except for any activities performed by Kelvin Data as set forth herein. Customer agrees to notify Kelvin Data immediately upon learning of any unauthorized use of its account or any other breach of security. From time to time, Kelvin Data' support staff may log in to the Services under Customer’s password in order to maintain or improve the Services, including for the purpose of providing Customer assistance with technical or billing issues. Customer hereby acknowledges and consents to such access.
2.5 Services Modifications. Kelvin Data is constantly innovating in order to provide the best possible experience for its customers. Customer acknowledges and agrees that the form and nature of the Services that Kelvin Data provides may be improved from time to time without prior notice to you, including without limitation security patches, added functionality, and other enhancements. Changes to the form and nature of the Services will be immediately effective with respect to all versions of the Services.
2.6.1 Restrictions. Customer shall comply with, Customer shall not, and shall not permit its clients to: (i) resell, sublicense, distribute or otherwise provide access to the Services, or data or information contained in or derived from the Services, to any third party or use the Services outside the scope of the license granted herein; (ii) copy, modify, adapt, translate, prepare derivative works from, reverse engineer, disassemble, or decompile the Services or otherwise attempt to discover any source code or trade secrets related to the Services; or (iii) use the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with the Services for any purpose without the express written consent of Kelvin Data.
2.6.2 Acceptable Data Use Policy. Customer shall comply with the Kelvin Data Acceptable Data Use Policy (“ADUP”), covered in this section, at all times. Violations of the Kelvin Data ADUP will constitute a material breach of the Agreement.
you agree not to use, and not to encourage or allow any Client or End User to use, the Kelvin Data Services in the following prohibited ways:
Using the Kelvin Data Services to encourage any illegal, fraudulent, abusive, or other activities.
Using the Kelvin Data Services in connection with credit granting, credit monitoring, account review, collection, insurance underwriting, employment or for any other purpose covered by the Fair Credit Reporting Act (15 U.S.C. Sec. 1681 et seq ("FCRA")), Federal Trade Commission interpretations of the FCRA, and similar federal and state statutes.
Using the Kelvin Data Services for any form of debt collection.
Using the Kelvin Data Services to engage in, or in connection with fraudulent activity.
Using the Kelvin Data Services directly as the sole source of data for hard background check purposes.
Using the Kelvin Data Services for a government license or benefit.
Using the Kelvin Data Services for any purpose prohibited by applicable data privacy and security laws, including the General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”).
2.7 Training and Support.
2.7.1 Additional Training and Support. In consideration of Customer's payment of training and support fees indicated in a Services Agreement, Kelvin Data will provide the training and support services set forth in the Services Agreement. Training sessions will be conducted at Kelvin Data' facility and/or at Customer's location. Customer will reimburse Kelvin Data' reasonable travel costs and living expenses incurred by Kelvin Data' employees and subcontractors for travel from Kelvin Data' offices in connection with the performance of training services.
2.7.2 Customer Support.
Kelvin Data will make Services documentation available through its website. In addition, Kelvin Data will provide online support at email@example.com during the hours of 8am to 8pm PT.
3. TERM OF THE AGREEMENT
The term of this Agreement commences on the Effective Date and continues until all Subscription Periods, including any renewals thereof, have been terminated.
4. CHARGES, PAYMENT AND TAXES
4.1 Fees. For API accounts who sign up on our website, you agree to pay in accordance with the rates listed at firstname.lastname@example.org, unless otherwise set forth in a Services Agreement between the parties.
4.2 Credit Card Payment Terms. For API accounts who sign up on our website, Kelvin Data will charge the credit card Customer has placed on file at the end of each month for that month’s usage, unless specified otherwise.
4.3 Services Agreement Payment Terms. Should Customer enter into a Services Agreement, then Customer will be billed for use of the Services in accordance with the applicable Services Agreement. The pricing specified in a Services Agreement will be firm for the initial term of the Services Agreement. Kelvin Data may provide notice of an increase in pricing in advance of Subscription Period renewal.
4.4 Payment. Invoices will be due and payable thirty (30) days from date of invoice and will be paid in immediately available U.S. funds by wire transfer or other method as mutually agreed to by the parties. Any invoiced amount not paid by the due date will bear a late payment charge at the rate of one and a half percent (1.5%) per month (or such lower amount as may be required by law) until paid.
4.5 Taxes. Fees do not include and Customer shall pay, indemnify and hold Kelvin Data harmless from all applicable sales/use, gross receipts, value-added, GST or other tax on the transactions contemplated herein, other than taxes based on the net income or profits of Kelvin Data.
“Confidential Information” means, subject to the use license granted in Section 10.2, any non-public information relating to or disclosed in the course of this Agreement, including the Services and data or information contained in or derived from the Services. The receiving party will not share Confidential Information with third parties (except as otherwise provided in this Agreement, including Section 2), will use the same care to protect Confidential Information as it uses for its own similar information, but in no event less than reasonable care, and will use Confidential Information only as permitted in this Agreement and for fulfilling its obligations under this Agreement. Confidential Information does not include information that: (a) is or becomes part of the public domain through no fault of the receiving party; (b) was already in possession of the receiving party without restriction; (c) is independently developed by the receiving party without violation of this Section; or (d) is received from a third party without restriction. The receiving party may disclose Confidential Information if it is required to do so by law, so long as the receiving party provides the disclosing party with prompt notice and complies with any protective order imposed on such disclosure. At the request of the disclosing party, the receiving party will return all of the other party’s Confidential Information that is reduced to writing(s), drawing(s), schematic(s), or any other form of documentation, or destroy all such material, and permanently delete if in electronic form, and to certify the destruction to the disclosing party, provided however, if the Agreement is not terminated for cause, the Customer may retain copies of the reports or information printed or obtained through the Services subject at all times to the license restrictions specified in Section 2.4 and the non-disclosure requirements of this Section 5.
6.1 For Cause. Either party may terminate this Agreement and all Services Agreements, immediately upon written notice to the other party, if the other party: (a) commits a material breach of this Agreement, which is capable of remedy, and fails to remedy the breach within thirty (30) days after written notice; (b) commits a material breach of this Agreement which cannot be remedied; or (c) is repeatedly in breach of this Agreement. Abuse or excessive usage of the Services API beyond the scope permitted under a Services Agreement will be deemed a material breach justifying Kelvin Data termination or suspension of a Customer’s account.
6.2 Effect of Termination. Upon termination of this Agreement, all license rights hereunder will immediately terminate and Customer will: (i) cease use of the Services, including all data or information contained in or derived from the Services; (ii) destroy or (if requested by Kelvin Data) return to Kelvin Data all copies or other embodiments of the any and all data or information contained in or derived from the Services, and all other Kelvin Data Confidential Information; and (iii) pay to Kelvin Data all amounts due and owing under this Agreement.
DISCLAIMER AND LIMITATION OF LIABILITY
7.1 DISCLAIMER. THE SERVICES AND ALL DATA AND INFORMATION OBTAINED VIA THE SERVICES ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT UNDER APPLICABLE LAW, Kelvin Data MAKES NO WARRANTY OR GUARANTEE, EXPRESS OR IMPLIED, RELATING TO THE SERVICES OR CUSTOMER’S USE OF THE SERVICES, OR ANY DATA OR INFORMATION OBTAINED VIA THE SERVICES OR PROVIDED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT, AND/OR FITNESS FOR A PARTICULAR PURPOSE.
7.2 LIMITATION OF LIABILITY.
7.3 EXCEPT FOR A BREACH OF SECTION 2.4 OR SECTION 5, OR WITH RESPECT TO A PARTY’S INDEMNIFICATION OBLIGATIONS, EACH PARTY’S ENTIRE AGGREGATE LIABILITY TO THE OTHER PARTY FOR ANY AND ALL CLAIMS OF WHATEVER NATURE ARISING OUT OF THE PROVISION AND USE OF THE SERVICES OR OTHERWISE ARISING IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE TO Kelvin Data DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE MAKING OF THE CLAIM PURSUANT TO THE SERVICES AGREEMENT UNDER WHICH THE CLAIM AROSE.
7.4 EXCEPT FOR A BREACH OF SECTION 2.4 OR SECTION 5, OR WITH RESPECT TO A PARTY’S INDEMNIFICATION OBLIGATIONS, A PARTY SHALL NOT BE LIABLE TO THE OTHER PARTY OR ANY THIRD-PARTY CLAIMANT FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE, OR SPECIAL LOSS OR DAMAGES OF ANY KIND INCLUDING BUT NOT LIMITED TO LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, OR LOST PROFITS, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF THE PARTY AND/OR ITS SUBSIDIARIES AND AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. FORCE MAJEURE
Neither party shall be liable for any default or delay in the performance of its obligations hereunder (except for failure to pay amounts due) if and to the extent that such default or delay arises out of causes beyond its reasonable control, including without limitation acts of God, acts of war, acts of terrorism, earthquakes, fires, cable cuts, power outages, catastrophic network element failures, floods, terrorism, riots, civil disorders, rebellions, strikes, lockouts and labor disputes (individually, each such event a “Force Majeure Event”).
9.1 Compliance with Laws. Each party shall comply with all laws, statutes, ordinances, codes, regulations and other pronouncements having the effect of law of any government authority with respect to the Services and any data or information contained in or derived from the Services.
9.3 Indemnity. Each party shall indemnify, defend and hold harmless the other party against any damages, losses, claims or judgments arising out of any violation of this Section 9.
10. INTELLECTUAL PROPERTY AND CUSTOMER DATA
10.1 Customer agrees that, as between the parties, Kelvin Data owns all intellectual property rights and all other proprietary interests that are embodied in or practiced by the Services and all data or information contained in or derived from the Services (other than Customer Data as defined below). Kelvin Data grants no rights other than the rights expressly granted to Customer under this Agreement.
10.2 Kelvin Data agrees that, as between the parties, Customer owns all data directly provided by Customer to Kelvin Data for use with the Services ("Customer Data"). Notwithstanding anything to the contrary in this Agreement, including Section 5 (confidentiality), Customer hereby grants to Kelvin Data a perpetual license to use such Customer Data, without attributing Customer Data to Customer, for enhancing the Services, Kelvin Data' methodologies, and Kelvin Data' products and services. This license includes the right to use Customer Data in the aggregate and with other data and to create derivative datasets for use in Kelvin Data' products and services.
11. REGULATORY REQUIREMENT
If a regulatory body, or a court of competent jurisdiction, issues a rule, regulation, law or order that has the effect of materially increasing the cost to provide use of the Services or canceling, changing, or superseding any material term or provision of this Agreement (collectively “Regulatory Requirement”), this Agreement shall be deemed modified in such a way as the parties mutually agree is consistent with the form, intent and purpose of this Agreement and is necessary to comply with such Regulatory Requirement. Should the parties not be able to agree on modifications necessary to comply with a Regulatory Requirement within thirty (30) days after the Regulatory Requirement is effective, then, upon written notice, either party may, to the extent practicable, terminate that portion of the Agreement impacted by the Regulatory Requirement.
12.1 Independent Contractors. Kelvin Data and Customer are, and shall be deemed to be, independent contractors with respect to the subject matter of this Agreement. Nothing contained herein shall constitute this arrangement to be a joint venture or a partnership between Kelvin Data and Customer. Neither party has any authority to enter into agreements of any kind on behalf of the other party. Each party shall be solely responsible for and shall hold the other harmless from any and all claims for taxes, fees, or costs, including but not limited to withholding, income tax and workers’ compensation.
12.2 Waiver. No term or provision of this Agreement shall be deemed waived and no breach or default shall be deemed excused unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. No consent by any party to, or waiver of, a breach or default by the other party, whether express or implied, shall constitute consent to, waiver of, or excuse for any different or subsequent breach or default or shall be construed as a continuing waiver of such right or a waiver of any other provision hereunder.
12.3 Partial Invalidity. In the event that any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement, and both parties shall negotiate in good faith to substitute for such invalid, illegal, or unenforceable provision a mutually acceptable provision that is consistent with the original intent of the parties.
12.4 Amendment. Except as otherwise provided in this Agreement, this Agreement may be amended by the parties hereto at any time only by execution of an instrument in writing signed on behalf of each of the parties hereto. Any extension or waiver by any party of any provision hereto shall be valid only if set forth in an instrument in writing signed on behalf of such party.
12.5 Binding Effect. If any provision of this Agreement is held to be invalid or unenforceable, the remainder of the Agreement will remain in full force and effect, and such provision will be deemed to be amended to the minimum extent necessary to render it enforceable.
12.6 Survival. Termination of this Agreement shall not affect either party's accrued rights or obligations under this Agreement as they exist at the time of termination, or any rights or obligations that either expressly or by implication continue after this Agreement has ended, including Sections 2.2, 4, 5, 6.2, 7, 9, 10 and 12.
12.7 Assignment. Except for assignment to affiliates, Customer may not assign or otherwise transfer this Agreement or any rights or obligations hereunder without the prior written consent of Kelvin Data. Kelvin Data may assign this Agreement to an affiliate or other entity without the written consent of Customer. Subject to the foregoing, this Agreement will be binding upon, enforceable by and inure to the benefit of the parties and their respective successors and assigns.
12.8 Marketing Materials and Communications. Customer agrees that Kelvin Data may utilize Customer’s trademark and/or trade name solely to identify it as a Kelvin Data' Customer and to explain the use case Customer on the Kelvin Data website, in client lists and other marketing materials. Any other uses of Customer’s name and/or logo (other than as included in the Customer content and/or other items furnished to Kelvin Data by Customer) shall require Customer’s prior written consent.
12.9 Notices. Unless otherwise specified, any notice or other communication required or permitted to be given hereunder shall be given in writing and delivered in person, sent by certified mail with the required pre-paid postage and return receipt requested, or delivered by a recognized courier service, shipment charges pre-paid, properly addressed to the individual signing this Agreement on behalf of the applicable party at its address specified in the opening paragraph of the Agreement and shall be deemed effective upon receipt.
12.10 Headings. The headings and other captions in this Agreement are for convenience and reference only and shall not be used in interpreting, construing or enforcing any of the provisions of this Agreement.
12.11 No Third Party Beneficiaries. Except as specifically stated in this Agreement, this Agreement is not intended to be for the benefit of any third party, is not enforceable by any third party, and will not confer on any third party any remedy, claim, right of action or other right.
12.12 Governing Law. This Agreement shall be governed by the laws of the State of California (irrespective of its choice of law principles). Each party consents to the exclusive jurisdiction of the state and federal courts sitting in San Francisco, California in any action, suit or proceeding hereunder.
12.13 Counterparts; Electronic Signature. This Agreement may be signed in any number of counterparts with the same effect as if the signature on each such counterpart were upon the same instrument, and a facsimile transmission or electronic delivery of a manual signature (e.g., .pdf) shall be deemed to be an original signature.
12.14 Entire Agreement. This Agreement, together with any Services Agreements, schedules and exhibits attached hereto, all of which are incorporated by reference, sets forth the entire understanding of the parties hereto with respect to the transactions contemplated hereby. Any and all previous agreements and understandings between or among the parties regarding the subject matter hereof, whether written or oral, are superseded by this Agreement.
Updated: August 1, 2021