These are Kelvin’s standard subscription and license terms. The specific commercial terms for any engagement · pricing, scope, subscription term, and asset limits · are set out in the Order Form executed between Kelvin and each Customer.
This Master Subscription and License Agreement (the “Agreement”) is entered into between KELVIN INC., a Delaware corporation (“Kelvin”), and the customer that executes an Order Form referencing these terms (“Customer”).
Kelvin provides proprietary platform-as-a-service technology and services that are designed for operational efficiency and monitoring intelligent control applications in the industrial automation sector.
The parties wish to integrate Kelvin's autonomous operations platform into Customer's production environment, pursuant to the terms and conditions of this agreement.
Kelvin and Customer therefore agree as follows:
Article 1 · Order Process
1.1 Order Forms. From time to time during the Term, Customer may wish to obtain (and Kelvin may wish to provide) access to components of the System for Customer's business purposes. In such event, the parties will mutually agree upon a written document, in substantially the form attached hereto as Exhibit A, that details the components of the System that Customer will access and use; the applicable permitted purpose, Territory, and usage parameters and restrictions; pricing and payment terms; and any other relevant details that the parties may see fit to include. Such document will be deemed to be an "Order Form" within the meaning of this Agreement when both parties execute such document, whereupon it will be appended as an exhibit to this Agreement. The first Order Form under this Agreement (the "Initial Order Form") is attached hereto as Exhibit A-1.
1.2 Subscription Terms. Each Order Form will specify an "Initial Subscription Term", which generally shall begin immediately on the "Order Effective Date" and, unless earlier terminated as expressly permitted under section 11.2, continue for a fixed period of time. Unless otherwise expressly set forth to the contrary in the Order Form, at the end of the Initial Subscription Term, this Agreement will automatically renew for successive renewal terms of one (1) year each (each, a "Renewal Subscription Term"), unless either party provides written notice of non-renewal at least sixty (60) days before the expiration of the Initial Subscription Term or then-current Renewal Subscription Term. Together, the Initial Subscription Term and all Renewal Subscription Terms (if any) constitute the "Subscription Term". Customer agrees that any purchase orders or internal procurement processes of Customer will not alter the renewal terms stated herein.
1.3 Agreement Structure. The "Agreement" consists of the following: (a) the main body of this Master Subscription and License Agreement, including all exhibits hereto; (b) all mutually agreed upon Order Forms that are executed by both parties in accordance with section 1.1 above, including the Initial Order Form; and (c) any mutually agreed SOWs that are executed by both parties in accordance with section 12.3.
Article 2 · Use of the System
2.1 Authorized Access to Cloud Components of the System. Subject to the terms and conditions of this Agreement, Kelvin grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, non-assignable (except as may be permitted under section 13.4), revocable right to access and use the Cloud Components indicated in the applicable Order Form, solely as necessary for the Purpose, during the Subscription Term, in the Territory.
2.2 License to On-Premise Components of the System. Subject to the terms and conditions of this Agreement, Kelvin grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, non-assignable (except as may be permitted under section 13.4) license, solely during the applicable Subscription Term in the Territory, to download and deploy the On-Premise Components, in machine-executable form only, solely as a component of the System, in strict compliance with the terms set forth in the applicable Order Form, solely as necessary for the Purpose. Such Purpose does not include use by any third party other than Customer's Affiliates as specifically authorized in this Agreement, and Customer shall not permit any such use. Kelvin grants the license in this section 2.2 under copyright (and, solely to the extent necessary for Customer to exercise such license, under any other applicable intellectual property rights of Kelvin).
2.3 Documentation. Customer may reproduce and use the Documentation solely as necessary to support Users' use of the System.
2.4 System Modifications, Updates, and Future Offerings. Kelvin reserves the right to modify the System at any time and will have no liability for any such modification, provided that no such modification materially diminishes any material feature or functionality offered in the System as of the date of the applicable Order Form. Except to the extent expressly set forth to the contrary in the applicable Order Form, subscriptions do not include any Updates or Future Offerings. However, Kelvin may, in its sole discretion, transition Customer's subscription to a Future Offering that renames or replaces the System that was the subject of the Order Form, upon written notice to Customer.
2.5 Third Party Materials. Customer acknowledges that use, reproduction and distribution of certain third-party materials included in the System may be subject to other terms and conditions found in separate third-party license agreements or “READ ME” files included with the applicable third-party materials. Some of these additional third-party materials may include open source components licensed under an open source software license. All such third-party materials, including open source components, are governed solely by the terms of the applicable third party license and not this Agreement. Nothing in this Agreement is intended to restrict or prevent Customer from obtaining such open source components under the applicable third-party licenses or to limit Customer’s use of such open source components thereunder.
2.6 Third Party Generative AI Services. The Cloud Components may contain links or connections to or from, or otherwise integrate with, third party artificial intelligence technology, services or tools that are capable of producing AI Outputs (as defined below) based on user-supplied prompts, including without limitation OpenAI (collectively, “Third Party Generative AI Services”). When Customer accesses or uses Third Party Generative AI Services, or AI Outputs provided thereby, Customer accepts that there are risks in doing so, and that Kelvin is not responsible for such risks, or the reliability or accuracy thereof. Kelvin has no control over, and assumes no responsibility for, the AI Outputs, the information, accuracy, privacy policies, services, or practices of or opinions expressed in or by any Third Party Generative AI Services. Customer represents and warrants that it will comply with the terms of use or other applicable terms or policies of such Third Party Generative AI Services that are utilized by Customer in connection with the Cloud Components. Customer will not, and will ensure that its Users will not, use the Third Party Generative AI Services or any AI Outputs therefrom: (a) in a way that infringes, misappropriates, or violates any person’s rights or any applicable laws; or (b) to reverse assemble, reverse compile, decompile, translate, or otherwise attempt to discover the source code or underlying components of models, algorithms, and systems of the Third Party Generative AI Services (except to the extent such restrictions are contrary to applicable law). Additionally, Customer will not, and will ensure its Users will not: (c) represent that an AI Output from the Third Party Generative AI Services was human-generated when it is not or otherwise violate the applicable usage policies of any Third Party Generative AI Services; or (d) use an AI Output from the Third Party Generative AI Services to develop models that compete with the applicable provider(s) of the Third Party Generative AI Services. "AI Output" means any content, result, or response generated by a Third Party Generative AI Service based on user-supplied prompts through the Cloud Components.
Article 3 · Fees and Payment
3.1 Fees. In consideration for Customer’s access to applicable components of the System, Customer shall pay Kelvin the subscription fees set forth in the Order Form for each Subscription Term (the “Fees”). Kelvin may increase the subscription fees for any Renewal Subscription Term by providing notice to Customer at least sixty (60) days in advance of such renewal; however, such increase may not be larger than a five percent (5%) increase per Subscription Term. Customer shall pay Kelvin the Fees in accordance with the payment terms set forth in this Agreement and the Order Form. Except as otherwise specified in the Order Form: (a) Fees are quoted and payable in U.S. dollars; (b) payments are non-cancelable; and (c) any Fees paid are non-refundable and non-recoupable, including Fees for prepaid unused packages.
3.2 Invoicing and Payment. Unless otherwise stated in the Order Form, Kelvin will invoice all Fees in advance and Fees are due thirty (30) days from the invoice date. Customer must provide complete and accurate billing and contact information to Kelvin and notify Kelvin of any changes.
3.3 Invoice Disputes. If Customer disputes any portion of an invoice in good faith, Customer must provide written notice to Kelvin within thirty (30) days of the invoice date identifying the specific amount disputed and the basis for the dispute in reasonable detail. Upon receipt of a valid dispute notice, Kelvin shall review the dispute in good faith and notify Customer in writing whether Kelvin accepts or rejects the dispute, in whole or in part. Any undisputed portion of the invoice shall be paid by the applicable due date. The parties shall use commercially reasonable efforts to resolve any remaining disputed amounts promptly. Failure by Customer to comply with this section shall render the full invoice amount due and payable.
3.4 Late Payments. If any undisputed Fees (or disputed Fees that have been determined to be payable under section 3.3) are not received by Kelvin within ten (10) business days after written notice to Customer that such Fees are overdue, then without limiting Kelvin’s rights or remedies: (a) those charges may accrue a late charge at the rate of one and one-half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower; and (b) Kelvin may, in its sole discretion, suspend Customer’s access to the System until all overdue amounts are paid in full. Without limiting the generality of the foregoing, if Customer is more than thirty (30) days late in paying any undisputed Fees payable to Kelvin under this Agreement, Kelvin's support obligations under section 12.1 will be suspended until all such Fees are paid in full.
3.5 Taxes. Fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including value-added, sales and use, or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases under this Agreement. If Kelvin has the legal obligation to pay or collect Taxes for which Customer is responsible under this Agreement, Customer will pay that amount when invoiced by Kelvin unless Customer provides Kelvin with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Customer is solely responsible for taxes assessable against it based on its income, property, and employees.
3.6 Audit Rights. Upon ten (10) days’ written notice, but no more frequently than once per year, Customer will provide Kelvin or a Kelvin-designated third party auditor with reasonable access to Customer’s business premises and any environments on which any component of the System is installed during normal business hours of 8:00 am to 5:00 pm local time, Monday through Friday, to conduct an audit of Customer’s records and systems to verify compliance with this Agreement, including the Use Limitations and any underpayment of fees. Customer will provide full cooperation to the auditors during any such audit. If any such audit should disclose any underpayment of fees, Customer will promptly pay Kelvin such underpaid fees and will enter into a new or amended Order Form to purchase such additional licenses necessary to cover Customer's overuse. Kelvin will bear the costs of any such audit, except that if Customer is found to have violated the terms and conditions of this Agreement and/or the amount of Customer’s underpayment of fees exceeds five percent (5%), Customer shall reimburse Kelvin for all expenses incurred in connection with the audit in addition to any remedies available to Kelvin in law or equity.
Article 4 · Customer Data
4.1 Use of Customer Data.
(a) Permitted Use by Kelvin. Kelvin shall not: (1) access, process, or otherwise use Customer Data other than as necessary to provide, operate, secure, and maintain the System under this Agreement; or (2) disclose Customer Data to any third party, except Kelvin's subcontractors that have a need for such access to facilitate the System and are subject to written contractual obligations governing the use and security of Customer Data that are no less protective than those in this Agreement.
(b) Compliance. Kelvin: (1) shall exercise reasonable efforts to prevent unauthorized disclosure or exposure of Customer Data; and (2) shall comply with all Privacy/Security Laws that are applicable to Kelvin as a data processor in the jurisdictions in which Kelvin does business and operates physical facilities.
(c) Monitoring. Kelvin reserves the right to monitor Customer Data transmitted or received through the System for operational, security, and compliance purposes. Such monitoring does not expand Kelvin's permitted uses of Customer Data beyond those set forth in section 4.1(a), and Kelvin assumes no responsibility or liability for the content of Customer Data, or for any loss or damage arising from such monitoring.
(d) Compelled Disclosure. Kelvin may disclose Customer Data as required by applicable law or by order of a court or governmental authority of competent jurisdiction. Kelvin shall give Customer prompt written notice of any such legal or governmental demand to the extent permitted by law, and shall reasonably cooperate with Customer in any effort to seek a protective order or otherwise contest such required disclosure, at Customer’s expense.
(e) Data Erasure. Kelvin may permanently erase Customer Data if Customer’s account has been delinquent, suspended, or terminated for ninety (90) consecutive days or more, without limiting Kelvin's other rights or remedies under this Agreement.
4.2 Additional Fees. Customer recognizes and agrees that Kelvin may charge additional fees for activities required by Privacy/Security Laws applicable to Kelvin, or for activities Customer specifically requests to assist Customer in complying with laws applicable to Customer.
4.3 License to Customer Data. Customer retains ownership of Customer’s copyright and other proprietary rights in the Customer Data. Customer hereby grants Kelvin a worldwide, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, reproduce, and modify for the purpose of formatting for display or interoperability, the Customer Data, in whole or in part, in each case solely as necessary to provide, operate, and maintain the System under this Agreement. Kelvin expressly disclaims all liability in connection with the Customer Data. Customer is solely responsible for the Customer Data and the consequences of uploading, transferring, and providing Customer Data to the System.
4.4 License to De-Identified Data. Additionally, Customer hereby grants Kelvin a worldwide, non-exclusive, irrevocable, perpetual, royalty-free, fully paid license (with the right to sublicense) to use the De-Identified Data for any lawful business purpose, including supporting, developing, improving, and maintaining the System and Kelvin's other products and services. Kelvin will not attempt to re-identify De-Identified Data and will not knowingly permit any third party to attempt to re-identify De-Identified Data. Kelvin will not identify Customer as a source of any De-Identified Data in any external publication or marketing materials without Customer’s prior written consent.
4.5 Customer Data Warranties. Customer represents and warrants that: (a) Customer owns the Customer Data, or has obtained all licenses, rights, consents, and permissions necessary to authorize Kelvin to use the Customer Data as contemplated by sections 4.3 and 4.4; (b) the Customer Data, and the use of the Customer Data as contemplated by this Agreement, does not and will not (1) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, privacy right, right of publicity, or any other intellectual property or proprietary right, or (2) slander, defame, libel, or invade the right of privacy, publicity, or other property rights of any other person; and (c) the Customer Data is not fraudulent, misleading, unlawful, inappropriate, or obscene, and does not violate any applicable law or regulation, or constitute false advertising or any other unfair business practice.
4.6 Risk of Exposure and Loss.
(a) Disclaimer. Customer acknowledges that hosting data online involves inherent risks of unauthorized disclosure or exposure and that, in accessing and using the System, Customer assumes such risks. Kelvin offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties. Kelvin shall have no responsibility or liability for the accuracy of data uploaded to the System by Customer, its Affiliates, or its Users.
(b) Customer Responsibilities. Customer is solely responsible for maintaining backups of the Customer Data outside the System, and Kelvin will have no liability whatsoever to Customer for any loss, compromise, or corruption of Customer Data, except to the extent arising directly from Kelvin's breach of its express obligations under this Agreement. Kelvin is under no obligation to edit or control Customer Data and may, at any time and without prior notice, screen, remove, edit, or block any Customer Data: (1) that exceeds applicable storage capacity limits; (2) that Kelvin reasonably suspects violates this Agreement; or (3) in response to a credible claim of infringement. Kelvin does not permit copyright-infringing activities on the System. Kelvin will terminate the accounts of Users that Kelvin determines are repeat infringers.
Article 5 · Customer's Responsibilities and Restrictions
5.1 Customer's Restrictions.
(a) Prohibited Activities. Customer acknowledges that the System contains and constitutes the valuable property and trade secrets of Kelvin and Customer will not, and will ensure its Users will not, directly or indirectly, do or attempt to do any of the following: (1) share Customer’s or its Users’ account credentials or make any of the System available to any third party without Kelvin’s prior written consent; (2) distribute, publicly perform, publicly display, license, sell, resell, share, rent, lease, sublease, sublicense, assign, transfer, or otherwise make available any part of the System to any third party without Kelvin’s prior written consent; (3) reproduce, modify, translate, or create derivative works of any part of the System, except as expressly permitted under this Agreement; (4) decompile, reverse engineer, or reverse assemble any portion of the System, or attempt to discover any source code or underlying ideas, structure, organizations, or algorithms of any portion of the System; provided that the foregoing shall not apply to the limited extent that applicable law expressly requires Kelvin to permit such activity to render the System interoperable with other software, and provided further that in such case Customer must first submit a written request to Kelvin, and Kelvin may in its sole discretion either provide such source code or permit Customer to derive it, subject to reasonable conditions on its use; (5) access or use the System to build a competitive product or service, or copy any features, functions, or graphics of the System; (6) use the System or any Application to store or transmit material in violation of third-party privacy rights, applicable privacy laws, or intellectual property or proprietary rights of any third party; (7) remove, tamper with, or alter any trademark, logo, copyright, or other proprietary notices or legends associated with the System; (8) use the System or any Application for any unlawful purpose, in violation of any applicable law or regulation, or in a manner that could give rise to civil liability; (9) design any Custom Application to alter or interfere with the normal operation, behavior, functionality, or performance of the System, transmit malicious code to the System, or disrupt the integrity of third party data contained in the System or any other hardware or asset that interacts with the System; (10) interfere with or circumvent any feature of the System, including any security or access control mechanism; (11) interfere with or disrupt any network, equipment, or server connected to or used by the Cloud Components or Registry; (12) upload or disseminate any virus, adware, spyware, worm, or other malicious code; (13) perform any fraudulent activity, including impersonating any person or entity, claiming a false affiliation, or accessing any account on the System without permission; (14) use the System on behalf of, or to perform services for, any third party, or make the System available to third parties on a service bureau, rental, lease, software-as-a-service, or application service provider basis; (15) incorporate any part of the System into products or services provided by Customer to any third party; (16) attempt to probe, scan, or test the vulnerability of the System without Kelvin's prior written consent; (17) use the Kelvin Development Tools to build or test applications intended for deployment outside the Kelvin System; or (18) deploy, run, execute, or host any Application, in whole or in part, outside of the System or in any non-Kelvin environment, runtime, or infrastructure, except as expressly authorized in the applicable Order Form. For the avoidance of doubt, the restriction in 4.1(a)(18) does not apply to On-Premise Components that are expressly licensed for deployment on Customer-controlled infrastructure under section 2.2, nor to any Customer Data or Outputs processed or stored outside the System by Customer in the ordinary course of business.
(b) Enforcement. Kelvin has the right, but not the obligation, to monitor Customer’s and its Users’ use of the System (including the SDK, APIs, and all Applications) to determine compliance with this Agreement, including compliance with Use Limitations, security requirements, and licensing restrictions. Customer shall not block, disable, or interfere with telemetry collection or other monitoring conducted for these purposes. Kelvin reserves the right, without limiting any other right or remedy, to immediately terminate this Agreement or suspend the license and subscription rights granted under this Agreement, or any User credentials, if Kelvin in good faith suspects that Customer or its Users may be engaging or have engaged in any of the prohibited activities set forth in section 5.1(a).
5.2 Customer's Responsibilities.
(a) Export Controls and Anti-Corruption. Customer shall comply with all applicable laws and regulations in performing under this Agreement.
(1) Export Controls. The System may be subject to U.S. export controls administered by the Department of Commerce, the Department of the Treasury's Office of Foreign Assets Control, and other U.S. agencies. Customer shall not use the System in, or transfer or export the System or any underlying technology to, any country subject to a U.S. embargo ("Embargoed Country"), or to or by any national or resident thereof, or to any person or entity on the U.S. Treasury's List of Specially Designated Nationals or the Commerce Department's Denied Persons List (collectively, "Designated Nationals"). Customer represents and warrants that it is not located in, under the control of, or a national or resident of any Embargoed Country, and is not a Designated National. The System is deemed to be "commercial computer software" and "commercial computer software documentation" pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable, and any U.S. Government use is governed solely by this Agreement.
(2) Anti-Corruption. Customer and its employees and agents shall not, in connection with this Agreement or Customer's use of the System, directly or indirectly offer, pay, promise, or authorize any payment or gift of anything of value to any government official for the purpose of improperly influencing any governmental act or decision, obtaining or retaining any improper advantage, or otherwise violating applicable anti-bribery laws. Customer represents that it has not made and will not make any such payments or offers.
(b) User Compliance and Security. Customer will ensure that all Users comply with this Agreement and any applicable Customer policies, and is responsible for protecting and maintaining the Cluster Hardware and the information residing on it. Any breach of this Agreement by a User will be deemed to be a breach of this Agreement by Customer. Customer is solely responsible for: (1) maintaining the secrecy of passwords that provide access to the System; and (2) properly managing access to and security of any On-Premise Components installed by Customer or its Users. If Customer becomes aware of any unauthorized access to or use of the System obtained through Customer or its Users, Customer will immediately notify Kelvin and take all steps reasonably necessary to terminate such unauthorized access, and will remain liable for all acts and omissions under its Users' accounts. Customer will cooperate with Kelvin to prevent, terminate, and remediate any such unauthorized access or use.
(c) No Unauthorized Distribution. Customer's use of the System is subject to Customer maintaining an active subscription and timely payment of all applicable Fees. This Agreement does not grant Customer any right to distribute or make available to any third party any Application, and any such distribution is prohibited unless Customer has entered into a separate distribution agreement with Kelvin permitting such distribution. Customer shall have no right to license, distribute, transfer, or otherwise make available to any third party: (1) any Kelvin Development Tools; (2) any sample source code, models, algorithms, or templates included in any Kelvin Development Tools; or (3) any Application derived from the Kelvin Development Tools or any portion thereof.
(d) Updates. Customer must install all Updates, patches, and security releases within the timeframes specified by Kelvin in a written notice to Customer's Technical Contact. Except in the case of critical security patches, Kelvin shall provide Customer no less than thirty (30) days' written notice before any such deadline. Failure to install a required security patch within the applicable timeframe following proper notice, and failure to cure such non-installation within fifteen (15) days of a second written notice from Kelvin, constitutes a material breach of this Agreement.
Article 6 · Ownership and Rights
6.1 The System; No Assignment. This Agreement shall not cause the assignment or any other transfer of ownership of either party’s intellectual property rights to the other party. The System is Kelvin's Background IP, and, except to the limited extent expressly set forth in sections 2.2 and 2.3, this Agreement does not grant Customer any intellectual property license or rights in or to the System or any of its components. Without limiting the generality of the foregoing, copies of the On-Premise Components created or transferred pursuant to this Agreement are licensed, not sold, and Customer receives no title to or ownership of the On-Premise Components, any copy thereof, or any sample source code, models, algorithms, or templates included in the On-Premise Components. There are no implied licenses granted by Kelvin under this Agreement, and all rights not expressly granted hereto are reserved.
6.2 Applications. Applications run on top of the System's operations platform, and fall into one of three categories:
(a) Standard Applications. Standard Applications are provided to Customer by Kelvin, in accordance with the applicable Order Form, for use under this Agreement. As between Kelvin and Customer, Kelvin retains ownership of all Standard Applications, together with all associated intellectual property rights and proprietary rights. Customer receives the right to use Standard Applications either pursuant to section 2.1 (if the Standard Application is a Cloud Component) or section 2.2 (if the Standard Application is an On-Premise Component).
(b) Custom Applications. Alternatively, Customer may develop its own Custom Applications for use with the System, using the Kelvin Development Tools. As between Kelvin and Customer, Customer retains ownership of the Custom Applications that Customer creates, together with all intellectual property and proprietary rights therein, subject in all cases to Kelvin's ownership of all Kelvin Development Tools, sample code, reference designs, portions of the System, and all other Kelvin-provided materials that may be incorporated into such Custom Applications, along with all intellectual property and proprietary rights therein. Customer hereby grants Kelvin a worldwide, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense), under all of its intellectual property and proprietary rights, to host, store, operate, and make available the Custom Application through the System to Customer and its Users, solely as necessary to perform Kelvin's obligations under this Agreement.
(c) Third-Party Applications. Third-Party Applications may be licensed by a third-party licensor to Customer subject to separate or additional third-party license terms and conditions. As between Customer and the third-party licensor, the third-party licensor owns Third-Party Applications (and all intellectual property and proprietary rights therein), and Customer receives the right to use Third-Party Applications pursuant to such separate or additional third-party license terms and conditions. If Customer chooses to use or access any Third-Party Application, Customer agrees to comply at all times with the accompanying third-party license terms and conditions.
6.3 Feedback. From time to time, Customer, its Affiliates, or Users may choose (but have no obligation) to provide Feedback to Kelvin. Kelvin has not agreed to, and does not agree to, treat as confidential any such Feedback, and nothing in this Agreement or in the parties' dealings arising out of or related to this Agreement will restrict Kelvin's right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback without any obligation to provide compensation or credit. Notwithstanding article 6 (Confidential Information), Feedback will not be considered Customer's Confidential Information or its trade secret.
6.4 Outputs. As between the parties, Customer owns all Outputs generated through Customer's authorized use of the System based on Customer Data, subject to Kelvin's ownership of the System and its components. Use of Outputs does not transfer to Customer any ownership interest in the System or any component of the System used to generate such Outputs, and Kelvin does not obtain ownership of Customer Data solely by generating Outputs.
Article 7 · Confidential Information
7.1 Confidential Information.
(a) “Confidential Information” refers to the following items one party (“Discloser”) discloses to the other party (“Recipient”): (1) any document disclosed by Discloser that is marked as "Confidential" or with words of similar import; (2) any information disclosed by Discloser orally or visually and identified as confidential or proprietary at the time of disclosure; or (3) any other nonpublic, sensitive information Recipient should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Kelvin's Confidential Information also includes, whether or not marked as such, the On-Premise Components, the features and aspects of the System that are not generally accessible without the payment of Fees, the Documentation, any source code (including all APIs and how the APIs have been built and connected, models, algorithms, templates, or other sample code or components provided therein, the methods for configuration and delivery of any source code, and additional scripts on the instance), command line interface (CLI) tools, methods of operation, methods of information storage, methods for contextualizing data, costs, trade secrets, know-how, marketing methods, suppliers, third party partners, any names of actual or potential customers, and any information regarding agreements between Kelvin and any of Kelvin's customers.
(b) Notwithstanding the previous section 7.1(a), Confidential Information does not include information that: (1) was already in Recipient's lawful possession at the time of disclosure by Discloser; (2) is independently developed by the Recipient without use of or reference to Discloser's Confidential Information; (3) becomes known publicly, before or after disclosure, other than as a result of Recipient's improper action or inaction; (4) is obtained by Recipient from a third party without a breach of such third party's obligations of confidentiality; or (5) is approved for public release in writing by Discloser.
(c) Kelvin works with many applications and software developers and some of their products may be similar to or compete with Customer, Customer's products or services, or the Customer Application(s). Kelvin may also be developing its own applications that are similar to or compete with the Customer Applications.
7.2 Nondisclosure and Use Restrictions. The Recipient shall not use Confidential Information for any purpose other than performing its obligations and exercising its rights under this Agreement. Recipient: shall not disclose or permit to be disclosed, either directly or indirectly, Discloser's Confidential Information to: (1) Recipient's employees or third-party contractors providing services to and for the benefit of Recipient, unless such person needs access to facilitate the Purpose and is subject to a written agreement with Recipient with nondisclosure terms no less restrictive than those of this article 7; or (2) to any other third party without Discloser's prior written consent.
Without limiting the generality of this section 7.2, Recipient shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Recipient shall promptly notify Discloser of any misuse or misappropriation of Confidential Information that comes to Recipient's attention.
Notwithstanding this section 7.2, Recipient may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Recipient shall give Discloser prompt notice of any such legal or governmental demand and reasonably cooperate with Discloser in any effort to seek a protective order or otherwise to contest such required disclosure, at Discloser's expense. If disclosure is ultimately required, then, notwithstanding anything to the contrary in this article 7, Recipient will be permitted to furnish only that portion of Discloser's Confidential Information that is legally required, provided that Recipient will exercise reasonable efforts to obtain assurance that it will receive confidential treatment, and continue to treat such Confidential Information in accordance with its obligations under this article 7 for all other purposes.
Notwithstanding this section 7.2, Kelvin may disclose Customer’s Confidential Information to Kelvin's service providers (such as its hosting provider), provided that such service providers are bound by obligations to protect the confidentiality of such information.
7.3 Injunction. Recipient agrees that: (1) an adequate remedy may not exist at law if it breaches any of its obligations in this article 7; (2) it would be difficult to determine the damages resulting from its breach of this article 7, and such breach may cause irreparable harm to Discloser; and (3) a grant of injunctive relief may provide the best remedy for any such breach, without any requirement that Discloser prove actual damage or post a bond or other security. Recipient waives any opposition to such injunctive relief or any right to such proof, bond, or other security. This section 7.3 does not limit either party’s right to injunctive relief for breaches not listed.
7.4 Termination and Return. Upon termination of this Agreement, and upon Discloser's request, Recipient shall promptly return all copies of Confidential Information to Discloser or, at Discloser's election, certify, in writing, the destruction thereof. Recipient's obligations pursuant to section 7.2 above (Nondisclosure and Use Restriction) will survive termination and such return, destruction, and certification.
7.5 Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Discloser will retain all right, title, and interest in and to all of its Confidential Information.
7.6 Exception & Immunity. Pursuant to the Defend Trade Secrets Act of 2016, 18 USC Section 1833(b), each party is on notice and acknowledges that, notwithstanding the foregoing or any other provision of this Agreement:
(a) an individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that: (1) is made in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law; or (2) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal; and
(b) an individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual: (1) files any document containing the trade secret under seal; and (2) does not disclose the trade secret, except pursuant to court order.
Article 8 · Disclaimer of Warranty
To the fullest extent permitted by law and except as otherwise expressly set forth in the applicable Order Form or this Agreement: (a) the System and any other materials and content made available by Kelvin or through the System are provided on an “AS IS” and on an “AS AVAILABLE” basis; (b) Kelvin and Kelvin's Associates disclaim all warranties of any kind, whether express or implied, relating to the System and any Output, materials, and content made available by Kelvin or through the System, including: (1) any implied warranty of merchantability, fitness for a particular purpose, title, quiet enjoyment, or noninfringement; and (2), any warranty arising from statute, course of dealing, course of performance, usage, or trade. To the fullest extent permitted by law, Kelvin and Kelvin's Associates do not warrant that the System and any other Output, materials, or content made available through the System, will be: (3) uninterrupted, secure, or free of errors, viruses, or other harmful components, and do not warrant that any of those issues will be corrected; or (4) secure from hacking or other unauthorized intrusion or that Customer Data will remain private or secure.
No Output, advice, or information, whether oral or written, obtained by Customer or its Users from the System or Kelvin will create any warranty under this Agreement. To the fullest extent permitted by law, Kelvin is not responsible for any damage that may result from Customer’s or its Users’ use of or access to the System or any other materials or content that is made available by Kelvin or through the System. Customer understands and agrees that Customer’s and its Users’ use of the System and any content or materials that are accessed, downloaded, or otherwise obtained from Kelvin or through the System, including any third party services, is at Customer’s own discretion and risk, and that, to the fullest extent permitted by law, Kelvin is not responsible for any damage to Customer’s property (including Cluster Hardware, computer system(s), or mobile device(s) used in connection with the System) or any loss of data or Customer Data.
The System is not fault-tolerant and is not designed, manufactured, or intended for use as safety-instrumented systems, emergency shutdown systems, or other safety-critical control systems requiring certified fail-safe performance where the failure of such systems could lead directly to death, personal injury, or severe physical or environmental damage, such as in the operation of nuclear facilities, aircraft navigation or communications systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the System could lead directly to death, personal injury, or severe physical or environmental damage. Kelvin specifically disclaims any express or implied warranty of fitness for such activities.
Notwithstanding anything to the contrary in this article 8, Kelvin does not disclaim any warranty or other right that Kelvin is prohibited from disclaiming under applicable law, and Kelvin’s express obligations with respect to confidentiality, data protection, and information security are set forth elsewhere in this Agreement.
Article 9 · Indemnification
9.1 Indemnity from Kelvin.
(a) Kelvin shall indemnify, defend, and hold harmless Customer against any third party claim, suit, or proceeding arising out of or alleging direct infringement or misappropriation of any patent, copyright, trade secret, or other intellectual property right as a result of Customer's authorized use of the System that results in damages awarded to a third party by a final court decision, or included as part of a final settlement (provided it has been agreed to in advance by Kelvin in writing) (each, an "Indemnified Claim" for the purpose of this section 9.1), subject to Customer’s compliance with its obligations as an Indemnified Party under section 9.3. However, Indemnified Claims do not include, and Kelvin's obligations set forth in this section 9.1 do not apply to, any claim, suit, or proceeding arising out of: (1) Customer's breach of this Agreement, including its failure to cease use of the System after Kelvin's direction pursuant to article 5 (Customer's Responsibilities and Restrictions); (2) revisions to or modification of the On-Premise Components or other System components, in whole or in part, made without Kelvin's written consent; (3) Customer's failure to incorporate On-Premise Components updates or upgrades that would have avoided the alleged infringement, provided Kelvin offered such updates or upgrades without additional charge not otherwise required pursuant to this Agreement; (4) use of the System in combination with software, hardware, products, or services not licensed by Kelvin to Customer under this Agreement, including third party services; (5) use of any specified release of the System after Kelvin notifies Customer that continued use of such release may subject Customer to a claim of infringement; (6) failure to use the System in accordance with this Agreement or the Documentation, or any instructions provided by Kelvin; or (7) Customer Data or any content, applications, or models provided by third parties (including as part of the Registry).
(b) Kelvin’s obligations under this section 9.1 shall include reasonable attorneys’ fees, court costs, and settlement amounts.
(c) In case of an Indemnified Claim, Kelvin may, at its sole option and expense: (1) procure from Customer the right to continue use of the System or infringing part thereof; (2) modify or replace the System or infringing part thereof to make it non-infringing; or (3) terminate the affected license in exchange for a refund to Customer of a pro-rata portion of any prepaid, unused Fees..
9.2 Indemnity from Customer.
(a) Customer is responsible for Customer’s use of the System, and, to the fullest extent permitted by law, Customer will indemnify, defend, and hold harmless Kelvin and its Associates from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs brought by a third party arising out of or connected with: (1) any claim that Customer Data, Custom Application(s), or any content or materials provided by Customer or its Users infringes, misappropriates, or violates any patent, copyright, trademark, trade secret, privacy, or confidentiality right, or other intellectual property or proprietary right of a third party; (2) Customer’s material breach of this Agreement caused by Customer's gross negligence or willful misconduct ; (3) any unauthorized disclosure of, access to, or use of Customer Data, or any violation of Privacy/Security Law through a party's account or systems, in each case to the extent caused by Customer's gross negligence or willful misconduct; (4) any use or misuse of the System to control or operate Cluster Hardware in a manner that materially violates this Agreement; (5) Customer's knowing or grossly negligent violation of applicable law or regulation; or (6) any claim arising out of or connected with Customer's or its Users' use of any Third Party Generative AI Services or AI Outputs in violation of section 2.5 or the applicable terms of such Third Party Generative AI Services.
(b) Any Indemnified Claim for which Kelvin seeks indemnification under section 9.2(a) shall be handled in accordance with the notice, defense, settlement, and cooperation procedures set forth in section 9.3, and Kelvin shall comply with its obligations therein as the Indemnified Party. For clarity, Customer shall have the right to assume and control the defense of such Indemnified Claim as provided in section 9.3.
9.3 Litigation and Additional Terms.
(a) The obligations of the indemnifying party (“Indemnitor”) pursuant to section 9.1 or 9.2 above include: (1) settlement at Indemnitor’s expense and payment of judgments finally awarded by a court of competent jurisdiction, as well as payment of court costs and other reasonable expenses; and (2) reimbursement of reasonable attorneys’ fees incurred by the other party to this Agreement (the “Indemnified Party," and for each Associate of such Indemnified Party, the "Indemnified Associate") before Indemnitor’s assumption of the defense (but not attorneys’ fees incurred thereafter).
(b) Indemnified Party shall provide prompt notice of any claim covered by 9.1 or 9.2 (each, an "Indemnified Claim" for the purpose of 9.3) and reasonably cooperate with Indemnitor’s defense. Indemnitor will control the defense of any Indemnified Claim, including appeals, negotiations, and any settlement or compromise thereof; provided: (1) if Indemnitor fails to assume the defense on time to avoid prejudicing the defense, Indemnified Party may defend the Indemnified Claim, without loss of rights pursuant to this article 9 until Indemnitor assumes the defense; and (2) Indemnified Party will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it or an Indemnified Associate admit wrongdoing or liability or subjects either of them to any ongoing affirmative obligation. Indemnitor’s obligations in section 9.1 or 9.2 above will be excused if either of the following materially prejudices the defense: (i) Indemnified Party’s failure to provide prompt notice of the Indemnified Claim; or (ii) Indemnified Party’s or an Indemnified Associate’s failure to reasonably cooperate in the defense.
(c) The foregoing provisions of sections 9.1 and 9.3 state the entire liability and obligations of Kelvin and its Associates under this Agreement, and the exclusive remedy of Customer under this Agreement, with respect to any actual or alleged infringement or misappropriation of any third-party patent, copyright, trademark, or trade secret, or other proprietary right by Kelvin or any part of the System.
Article 10 · Limitation of Liability
To the fullest extent permitted by law, in no event will Kelvin or Kelvin's Associates be liable to Customer for any indirect, incidental, special, consequential, exemplary, or punitive damages (including damages for any loss of profits, revenue, goodwill, loss of business, or any other intangible loss), arising out of or relating to this Agreement, whether based in warranty, contract, tort (including negligence), statute, or any other legal theory, and whether or not Kelvin or any Kelvin Associate has been informed of the possibility of such damages.
To the fullest extent permitted by law, the aggregate liability of Kelvin and Kelvin's Associates for all claims arising out of or relating to this Agreement, including the use of or any inability to use any portion of the System or any Output, materials, or other content made available by Kelvin or through the System, whether in contract, tort, or otherwise, is limited to the aggregate amount of Fees actually paid by Customer to Kelvin under this Agreement in the twelve (12) months preceding the first events which gave rise to such damages.
Customer acknowledges and agrees that Kelvin has based its pricing on, and entered into this Agreement in reliance upon, the limitations of liability, the disclaimers of warranties, and exclusion of damages set forth herein, and that such provisions allocate the risks and form an essential basis of the bargain between the parties, and that the absence of such provisions would result in substantially different economic terms. If applicable law limits the application of any provision in this article 9, Kelvin's liability will be limited to the maximum extent permissible. For the avoidance of doubt, Kelvin's liability limits and other rights set forth in this article 9 apply likewise to Kelvin's Associates, licensors, suppliers, advertisers, sponsors, and other representatives. Each of these provisions is severable and independent of all other provisions of these terms.
Article 11 · Term and Termination
11.1 Term; Automatic Renewal. This Agreement becomes effective on the Effective Date and will remain in effect until terminated in accordance with the terms of this Agreement (the “Term”).
11.2 Termination. Either party may terminate this Agreement upon written notice to the other party if all Order Forms and SOWs have expired or terminated, or in the event that: (1) the other party commits a material breach of this Agreement or the applicable Order Form or SOW and fails to remedy such breach within thirty (30) days after written notice of such breach; or (2) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of all or substantially all of its assets for the benefit of creditors, or if the other party becomes the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days.
11.3 Effect of Termination. Upon termination of this Agreement, unless otherwise expressly authorized in writing by Kelvin: (1) all applicable rights and licenses granted to Customer under article 2 (The System) will immediately cease, all Subscription Terms will immediately terminate, and all Order Forms and SOWs will automatically terminate; (2) Customer and its Users will immediately cease accessing, calling, and using the System, except as permitted during the Data Retrieval Period (defined below); (3) any and all payment obligations of Customer under this Agreement will become due immediately; and (4) Customer and its Users will uninstall and permanently delete all of copies of all On-Premise Components and Kelvin’s Confidential Information in its possession or control, except to the extent retained solely for legal compliance or archival purposes, subject to ongoing confidentiality obligations; (5) For a period of ninety (90) days following the effective date of termination (the “Data Retrieval Period”), Kelvin will make Customer Data available for export from the System in a standard format supported by the System, provided Customer has paid all Fees. Customer acknowledges that Applications that rely on the System may cease to function upon termination. Kelvin has no obligation to provide portability or decompilation; however, Kelvin will provide reasonable cooperation during the Data Retrieval Period solely to facilitate export of Customer Data that is stored in the System, in each case in standard formats supported by the System. The following provisions of this Agreement shall survive any termination or expiration of this Agreement: article 2 (Fees and Payment); article 4 (Customer Data); article 7 (Nondisclosure); article 9 (Indemnifi3ation); article 10 (Limitation of Liability); section 13.7 (Governing Law); and any other provision of this Agreement that must survive to fulfill its essential purpose.
Article 12 · Support and Service Level Objective
12.1 Support. During the applicable Subscription Term, and subject to Customer's payment of all Fees and ongoing compliance with this Agreement, Kelvin will provide technical support to Customer in accordance with Kelvin's maintenance and support policy, attached hereto as Exhibit B (the "Support Policy"), which is incorporated into this Agreement by reference. Support is provided only to Customer's designated Technical Contacts and only for those On-Premise Components of the System that are made available by Kelvin as Supported Products under the applicable Order Form. Kelvin may update the Support Policy from time to time, provided that no update will materially reduce the overall level of support provided during the applicable Subscription Term.
The Support Policy does not apply to, and Kelvin has no obligation to support: (a) any Custom Applications or Third-Party Applications; (b) any third-party services, software, or infrastructure; (c) Customer's systems, networks, equipment, or Cluster Hardware not provided by Kelvin; or (d) any issues caused by misuse, unauthorized modification, or use of the System not in accordance with the Documentation or this Agreement.
12.2 Service Level Objective. During the applicable Subscription Term, Kelvin will use commercially reasonable efforts to meet the service level objective for the Cloud Components described in Exhibit C (the "SLO"), which is incorporated into this Agreement by reference. The SLO applies only to the Cloud Components expressly identified in the Order Form and does not apply to: (a) Custom Applications or Third-Party Applications; (b) Customer's or any third party's systems, networks, equipment, or Cluster Hardware; or (c) third-party services, software, or infrastructure not controlled by Kelvin.
12.3 Professional Services. If Customer wishes to engage Kelvin to perform custom development, consulting, or other System-related professional services beyond the limited technical support described in section 12.1, the parties shall discuss the scope, pricing, deliverables, intellectual property rights, timing, and other appropriate terms governing such professional services. If the parties come to agreement upon all such terms, the parties shall mutually execute a separate written statement of work documenting such agreed terms (such statement of work, an "SOW") and append the SOW to this Agreement as an exhibit hereto. Each SOW shall be subject to the terms and conditions of this Agreement, and in case of any conflict, the terms of the applicable SOW shall govern solely with respect to the professional services described therein.
Article 13 · General Provisions
13.1 Independent Contractors. The parties are independent contractors and shall so represent themselves in all regards. Nothing contained within this Agreement shall be construed as creating an agency, partnership, or other form of joint enterprise between the parties. Neither party will have the authority to contract for or bind the other in any manner whatsoever. No rights are conferred upon either party except those that are expressly granted within this Agreement.
13.2 Notice.
(a) For a notice or other communication to a party under this Agreement to be valid, it must be in writing and delivered: (1) by hand; (2) by email; (3) by a national transportation company (with all fees prepaid); or (4) by registered or certified mail, return receipt requested and postage prepaid, and it must be addressed using the information specified below for that party or any other information specified by that party in a notice in accordance with this section 13.2:
To Kelvin: Kelvin Inc., 1334 Brittmoore Rd, Ste 2606 Houston, TX 77043
To the Customer: [Customer to insert notice address].
(b) A valid notice or other communication under this Agreement will be effective when received by the party to which it is addressed. Subject to the requirements in section 13.2(a) above, such communication will be deemed to have been received as follows: (1) if by hand or by a national transportation company, immediately upon delivery; (2) if by email, 24 hours after such email is sent; (3) if by registered or certified mail, 72 hours after sent; and (4) if the party to which it is addressed rejects or otherwise refuses to accept it, or if it cannot be delivered because of a change in address for which no notice was given, then upon that rejection, refusal, or inability to deliver.
13.3 Force Majeure. Except for the obligation to pay Fees under this Agreement, neither party will be liable for any failure, default, or delay under this Agreement due to any cause beyond its reasonable control (“Force Majeure Event”), including an act of war, act of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet, provided that the delayed party: (a) gives the other party notice of such cause and (b) uses its reasonable commercial efforts to correct such failure or delay in performance.
13.4 Assignment. Kelvin may freely assign or transfer this Agreement, or any of its rights or duties contained within this Agreement, at any time without Customer’s consent. Customer may not assign, transfer, or delegate this Agreement, or any of Customer’s rights or duties contained within this Agreement, directly, indirectly, by operation of law or otherwise, without the prior written consent of Kelvin. Any attempted assignment or delegation without such consent shall be null and void. This restriction shall not apply in the event of merger, acquisition, asset sale, or corporate reorganization of Customer, in which case Customer shall provide Kelvin written notice within thirty (30) days of closing of such transaction. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their permitted successors and assigns.
13.5 Severability. If any provision of this Agreement is held to be illegal, invalid, or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, valid, and enforceable, and the remaining provisions of this Agreement shall not be affected.
13.6 No Waiver. Neither party will be deemed to have waived any of its rights or remedies under this Agreement by failure, neglect, or delay by such party to enforce the provisions of this Agreement or its rights or remedies, by lapse of time, or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
13.7 Governing Law. This Agreement shall be governed by the internal laws of the State of Delaware, including applicable federal law, without reference to: (a) any conflict of law principle that would apply the substantive laws of another jurisdiction to the parties' rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Delaware. This section 13.7 governs all claims arising out of or related to this Agreement, including tort claims. In any action or proceeding brought to enforce any provision of this Agreement, the prevailing party shall be entitled to recover the reasonable costs and expenses incurred by it in connection with that action or proceeding, including attorney fees.
13.8 Conflicts. In case of a conflict between the main body of this Agreement and the exhibits or other attachments thereto, the following order of precedence will govern, with lower numbers governing over higher ones: (1) this main body of this Agreement; (2) the Order Form; and (3) any Kelvin policy posted online. No Order Form or other attachment incorporated into this Agreement after execution of this main body will be construed to amend this main body or any earlier attachment unless it specifically states its intent to do so and cites the section or sections amended.
13.9 Entire Agreement. This Agreement (including the Order Form) constitutes the parties’ entire understanding regarding the System and supersedes all other prior or contemporaneous communications, representations, or agreements, whether written or oral, and controls over the preprinted terms of any purchase order or similar document.
13.10 Construction. The use of the term "including" means "including without limitation". The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.
13.11 Execution in Counterparts. This Agreement may be executed in one or more counterparts, each of which so executed will be deemed to be an original and such counterparts together will constitute one and the same agreement.
13.12 Amendment. This Agreement may not be amended except through a written agreement signed by authorized representatives of each party.
13.13 Authority. The individual executing this Agreement on behalf of Customer acknowledges and warrants that it has full authority to execute this Agreement on behalf of Customer and that this Agreement has been duly authorized and approved by Customer.
13.14 Publicity.
(a) General. Except as expressly permitted in this section 13.14, neither party will issue any press release or make any other public disclosures, announcements, or statements regarding this Agreement or the parties' relationship without the prior written consent of the other party, which shall not be unreasonably withheld, conditioned, or delayed. Notwithstanding the previous sentence, Kelvin may include Customer's name, logos, and trademarks in Kelvin's standard customer lists and marketing materials to identify Customer as a customer of Kelvin and will cease such use upon Customer's reasonable written request.
(b) Case Studies and Joint PR. Customer agrees to consider in good faith Kelvin's reasonable requests for cooperation on marketing activities relating to the parties’ relationship, which may include the development of a written case study or a joint public announcement or press release. Any such marketing materials will require the prior written approval of both parties before publication, which will not be unreasonably withheld, conditioned, or delayed, and are subject to Customer's internal approval processes and applicable confidentiality obligations.
Article 14 · Definitions
"Affiliate" means, with respect to a party, any company or legal entity which: (i) controls, either directly or indirectly, the party in question; or (ii) is directly or indirectly controlled by a company or entity that controls, directly or indirectly, the party in question; or (iii) is directly or indirectly controlled by the party in question; “control” means direct or indirect ability to exercise fifty percent (50%) or more of the voting rights of the relevant company or entity.
"Application" means any containerized software application designed to run on or interoperate with the System, including Standard Applications, Custom Applications, and Third-Party Applications. All Applications must be approved by Kelvin in writing before deployment onto, or use with, the System.
"Associates" means, with respect to a party, such party's officers, directors, Affiliates, subsidiaries, successors, and agents.
"Cloud Components" means such elements of the System that are hosted by Kelvin on its own computers or on third-party servers or cloud infrastructure.
“Cluster Hardware” means edge devices, such as industrial hardware or other equipment, that are used solely for the purpose of this Agreement as specified in the applicable Order Form. Unless otherwise specified in the Order Form, all Cluster Hardware shall be owned or controlled by the Customer, and Customer is responsible for all maintenance and repair of the Cluster Hardware to ensure it functions properly.
"Custom Application" means any Application independently developed by or on behalf of Customer using the Kelvin Development Tools.
"Customer Data” means all information processed or stored through the Cloud Components and/or Registry by Customer or on Customer’s behalf. Customer Data includes any data that is collected by or transmitted to the Cloud Components from Cluster Hardware, including through the Kelvin Cluster Software and Kelvin APIs. Customer Data does not include payment records, credit cards, or other information Customer uses to pay Kelvin, or other information and records related to Customer’s account, including identifying information related to Customer staff involved in payment or other management of such account.
De-Identified Data” means Customer Data that has been processed to remove or obscure identifiers such that: (1) it does not identify Customer, any individual, household, or client or customer of Customer, or any device or asset, in each of the foregoing cases in a manner that is reasonably likely to permit identification; and (2) Kelvin does not have actual knowledge that the information could be used, alone or in combination with other reasonably available information, to re-identify Customer or any individual.
"Documentation" means Kelvin's standard manual related to the use of the System, as amended from time to time, and any other documentation which may be made available to Customer by Kelvin in connection with this Agreement.
"Effective Date" means the date that this Agreement is signed by the last party to sign it (as indicated by the date associated with that party's signature).
"Feedback" means any suggestion or idea for improving or modifying any of Kelvin's products or services, including feedback regarding any flaws, errors, bugs, anomalies, or problems with and/or suggestions relating to the System.
"Future Offering" means any future software, software-as-a-service, service, or other offering (whether they take the form of an add-on, new version, new release, or otherwise) that Kelvin may provide under a separate name from that of the System that is the subject of the Order Form (or for which Kelvin charges a separate fee), even if such offering interfaces with or is complementary to such System.
"Kelvin Cluster Software" means Kelvin-provided software (including Updates) that is intended to: (a) enable Cluster Hardware to connect to the System through a secure, encrypted communication layer; and (b) provide a runtime environment for certain Applications to be deployed to read and process data from, and write data to, underlying industrial assets, other applications, and/or Cloud Components, in each case only to the extent such software is provided or otherwise made available to Customer for download and deployment under this Agreement.
"Kelvin Development Tools" means Kelvin’s proprietary software development kit and any other development tools that are made available to Customer under this Agreement for the purpose of enabling Customer to develop, test, and (to the extent supported by the System) deploy and manage applications that interact with the System, as further described in the Documentation and including any Updates made available by Kelvin to Customer under this Agreement.
"On-Premise Components" means the Kelvin-provided software components identified in the Order Form that are installed or deployed on Customer-controlled infrastructure or within the Customer Hosting Environment, including the Kelvin Node software and any related agents, connectors, and installers, and (if applicable) the Kelvin Cluster Software and any Kelvin Development Tools that are deployed in the Customer Hosting Environment.
"Order Form" means a document that is mutually agreed upon and signed by both of the parties in accordance with section 1, in the form attached hereto as exhibit A, that specifies the scope, initial subscription duration, pricing, and other mutually-agreed details governing Customer's licensed access to and use of the System under this Agreement.
"Output" means the data, results, reports, alerts, visualizations, or other information generated for Customer through Customer’s authorized use of the System based on Customer Data.
“Privacy/Security Law” means any applicable federal, state, or foreign law, regulation, or binding regulatory guidance governing the collection, use, storage, disclosure, security, or processing of personal data or other regulated information, in each case solely to the extent applicable to Kelvin in its capacity as a processor or service provider of Customer Data under this Agreement. Privacy/Security Laws do not include laws that impose obligations solely on Customer in its capacity as a data controller or data owner.
"Purpose" means the internal business operations of Customer that are expressly described in the applicable Order Form, which may include development, deployment, and operations of Custom Applications on the System in support of those internal business operations.
"Registry" means one or more registries that are hosted by Kelvin and that contain the Customer’s and/or a third party’s Applications and data models.
"Statement of Work" or "SOW" means a written agreement executed by both parties describing professional services to be provided by Kelvin to Customer, which incorporates this Agreement by reference and sets forth the specific scope, deliverables, and fees, for such services.
"Standard Application" means any Application provided to Customer by Kelvin under this Agreement, as specified in the applicable Order Form.
"System" means the Cloud Components, the On-Premise Components, the Standard Applications, the Documentation, and any other software or technology that is provided or otherwise made available to Customer by Kelvin in connection with this Agreement.
"Territory" means the territory specified in the Order Form or, if no territory is specified, the United States of America.
“Third-Party Application” means any Application that is provided, developed, and made available separately to Customer by a third party subject to additional or separate third-party terms and conditions.
"Update" means any subsequent version, update, modification, or new release of the System or any portion of the System to the extent Kelvin elects, in its sole discretion, to make it available to Customer under this Agreement.
"Use Limitations" means any limitation on the scope, quantity, or manner of Customer's use of the System as specified in the applicable Order Form, including Asset limits, User limits, and territory restrictions.
"Users" means any company or individual who uses the System on Customer's behalf or through Customer's account or passwords, whether authorized or not, including Customer's authorized contractors accessing the System to perform services on behalf of Customer, and their employees and agents.
Exhibit A · Order Form Template
This Order Form is entered into as of [Insert Date] ("Order Effective Date") by and between KELVIN INC. ("Kelvin") and [CUSTOMER] ("Customer")
This Order Form is governed by, incorporates the terms of, and is an integral part of the Master Subscription and License Agreement between the parties dated [Insert Date] (the "Agreement"). Capitalized terms not defined herein have the meanings set forth in the Agreement.
1. Subscription and Licenses.
Product/Service
Term
Subscription: Cloud Components
12 months from Order Effective Date
Licenses: On-Premise Components - Kelvin Cluster Software and Kelvin SDK
12 months from Order Effective Date
Subscription Term: 12 months, unless earlier terminated in accordance with the Agreement.
Renewal: Auto-renews for successive 12-month terms unless either party provides sixty (60) days' written notice prior to renewal date. Annual renewal at then-current rates (not to exceed 5% annual increase).
General Maintenance & Support: included, 12 months commencing on Order Effective Date.
License Type: Term-based. Any On-Premise Component license granted under this Order Form is provided solely during the applicable Subscription Term and is coterminous with, and subject to, such Subscription Term. Upon expiration or termination of the applicable Subscription Term, the on-premise license shall automatically terminate.
Permitted Use: Internal business operations only; no redistribution or service bureau use.
Asset Limitation. Customer’s use of the products and services under this Order Form is limited to no more than [Insert Number] Assets. “Asset” means any individual unit of equipment, infrastructure, or operational site in the oil and gas, mining, energy, or other industrial sectors that is configured in or connected to the Software, including wells and related equipment.
Territory: The United States of America.
2. Payment Terms.
Subscription Fee: $[Insert Price] per month across all Assets (as defined above), beginning on the Order Effective Date.
Billing Frequency: invoiced monthly in advance.
Payment Terms: net thirty (30) days from the invoice date.
Total Order Value (Subscription Term): $[Insert Price]
Payment Method: Wire transfer or ACH
Late Payment: Overdue amounts will accrue interest at 1.5% per month (or the maximum rate permitted by law, if lower).
3. Additional Terms.
Kelvin Technical Contact: [Insert Contact Information]
Customer Technical Contact: [Insert Contact Information]
Invoicing Address: [Insert Contact Information]
Exhibit B · Kelvin Maintenance and Support Policy
This maintenance and support policy (the “Support Policy”) is incorporated into the Master Subscription and License Agreement between the parties (the "Agreement") and applies to technical support for the On-Premise Components of Kelvin's Background IP that are specified in the applicable Order Form (the “Supported Products”). This Support Policy is binding on Customer and Kelvin and does not apply to third parties. The terms in this Support Policy will terminate upon expiration or termination of the applicable Order Form. Capitalized terms not otherwise defined in this exhibit will have the meanings given in the main body of the Agreement and any applicable Order Form. For clarity, this Support Policy does not include support, maintenance, troubleshooting, or operation of any Custom Applications.
1. Scope of Services. To initiate Support for an Error covered by this Support Policy, Customer’s authorized technical employee must contact the Kelvin support team via email at Support@kelvininc.ai.
2. Response Time. During the Subscription Term, Kelvin shall use commercially reasonable efforts during Support Hours to Respond to Incidents reported by Customer within the following timeframes:
2.1 For a Severity Level One Incident: within four hours of Kelvin's receipt of Customer's notification.
2.2 For a Severity Level Two Incident: within one business day of Kelvin's receipt of Customer's notification.
2.3 For a Severity Level Three Incident: within three business days of Kelvin's receipt of Customer's notification.
Kelvin will not be required to Respond outside of Support Hours and all timeframes set forth above will be measured based on hours which are included in the Support Hours.
3. Remote Services. Customer acknowledges and agrees that Kelvin may provide Remote Services to Customer to assist in analyzing and Resolving any Incident. Customer agrees to provide Kelvin with access to Customer's systems to install and use remote access software ("Remote Access Software") necessary for Kelvin to provide the Remote Services to Customer. The Remote Access Software contains technological measures designed to collect and transmit to Kelvin certain diagnostic, technical, usage, and related information, which may include information about Customer's computers, systems, network, and any Third-Party services, relating to or derived from Customer's use of the System. Customer acknowledges and agrees that: (a) Kelvin may collect, maintain, process, and use this information in the course of performing Support under the Agreement, and (b) all or portions of the Remote Access Software may remain on Customer's systems after an Incident is Resolved.
4. Maintenance Releases. During the Subscription Term, Kelvin will provide Customer with all Maintenance Releases under the terms and conditions set forth in the Agreement. Customer does not have any right under or in connection with the Agreement or under this Support Policy to receive any New Versions of the Supported Products that Kelvin may, in its sole discretion, release from time to time.
5. Support Service Changes. Kelvin may, in its sole discretion, change any aspect of the Support services or their performance, provided that no such change materially reduces or otherwise has a material adverse effect on: (a) Kelvin's level of effort in performing the Support; (b) Kelvin's obligation to provide Support under this Support Policy; or (c) Customer's rights under this Support Policy.
6. Subcontractors. Kelvin may, in its sole discretion, perform Support by or through third parties (each, a "Subcontractor") or any other Kelvin personnel.
7. Limitations.
7.1 Incidents. Kelvin has the sole right to determine, in its discretion: (i) what constitutes an Incident; and (ii) when an Incident is deemed to be Resolved.
7.2 Response Time and Resolution. Kelvin will use commercially reasonable efforts to: (a) Respond within the applicable Response time provided in section 2 of this Support Policy; and (b) Resolve an Incident but does not guarantee that it will be able to Respond within that specific time period or that any Incident will be Resolved.
7.3 On-Site Visits. Kelvin will be under no obligation to provide on-site support services, unless otherwise agreed upon in writing by Kelvin.
7.4 Effect of Customer Failure or Delay. Kelvin is not responsible or liable for any delay or failure of performance caused in whole or in part by any delay or failure to perform any of Customer's obligations under this Support Policy, the Order Form, or the Agreement (each, a "Customer Failure").
7.5 Exceptions. Kelvin has no obligation to provide Support relating to Errors that, in whole or in part, arise out of or result from any of the following (each a "Service Exception"):
(a) any Supported Product, or the media on which it is provided, that is modified or damaged by Customer or any third party;
(b) any operation or use of, or other activity relating to, the Supported Products other than as specified in the Documentation, including any incorporation in the Supported Product of, or combination, operation or use of the Supported Products in or with, any technology (including any software, equipment, hardware, firmware, Cluster Hardware, system, or network) that is not licensed by Kelvin to Customer under this Agreement;
(c) any third party Services or third party materials;
(d) any Customer Failure or negligence, abuse, misapplication, or misuse of the System other than by Kelvin personnel, including any use of the System other than as specified in the Documentation;
(e) any Customer Failure, including Customer's failure to promptly install any Maintenance Release that Kelvin has previously made available to Customer;
(f) the operation of, or access to, Customer's or a third party's system, network, Cluster Hardware, or devices;
(g) any relocation, installation, or integration of the System other than by Kelvin personnel;
(h) any beta software, software that Kelvin makes available for testing or demonstration purposes, temporary software modules, or software for which Kelvin does not receive a license fee under this Agreement;
(i) any breach of or noncompliance with any material provision of this Support Policy or the Agreement by Customer or any of its representatives or Users;
(j) any Force Majeure Event (including abnormal physical or electrical stress) or illegal third-party activity (e.g., virus attack or network intrusion attempts);
(k) any Applications, Customer Data, Cluster Hardware;
(l) suspension of access to any System in accordance with the terms of the Agreement;
(m) Planned Maintenance of any Cloud Components or voluntary outages initiated by Customer;
(n) issues relating to Internet connectivity, including Internet connectivity between Customer and Kelvin’s servers;
(o) problems caused by use of the System by Customer or its Users after Kelvin has advised Customer to modify the activity, provided the activity was not modified as advised;
(p) other events or circumstances outside of Kelvin’s commercially reasonable control.
Additionally, Kelvin has no obligation under this Support Policy to provide support or maintenance services for any System that is not a Supported Product.
8. Customer Obligations.
Customer shall: (a) promptly notify Kelvin of any Error and provide Kelvin with reasonable detail of the nature and circumstances of the Error; (b) comply with all terms and conditions of this Support Policy and the Agreement; (c) use the System solely in accordance with the terms and conditions set forth in the Agreement and the Documentation; (d) set up, maintain, and operate in good repair and in accordance with the Documentation all environmental conditions and components, including all networks, systems, and hardware, in or through which the System operates (except for such components, networks and systems which are made available to Customer as Cloud Components under the Order Form); (e) provide Kelvin personnel with all such cooperation and assistance as they may reasonably request, or otherwise may reasonably be required, to enable Kelvin to perform its obligations under this Support Policy, including, if requested: (i) reasonable uninterrupted access, both physical and virtual, to the Customer's premises, systems, networks, and facilities on which the System is installed; (ii) a safe working environment; (iii) reasonable access to the appropriate Customer personnel, including network, systems, operations, and applications personnel; and (iv) all necessary authorizations and consents, whether from third parties or otherwise, in connection with any of the foregoing. Customer agrees to back up all data, files, and information prior to the performance of any Support and hereby assumes sole responsibility for any lost or altered data, files, or information. Customer shall provide Kelvin with all information reasonably requested by Kelvin from time to time relating to Customer's use of the System, including information regarding Customer's hardware, network, systems, Cluster Hardware, and any related Third-Party Services.
9. Customer Technical Contacts. Customer shall designate and maintain throughout the Subscription Term one or more individuals to serve as its primary point of contact for day-to-day communications, consultation, and decision-making regarding Support (each, a "Technical Contact"). The Technical Contact(s) shall be the sole contact(s) between Customer and Kelvin in connection with day-to-day matters relating to the provision of Support and shall be responsible for reporting Incidents, providing day-to-day consents and approvals on behalf of Customer, and communicating with and providing timely and accurate information and feedback to Kelvin in connection with the Support. The Customer's initial Technical Contacts are listed in the Order Form. Customer shall ensure its Technical Contact(s) have the requisite organizational authority, skill, experience, and other qualifications to perform these duties.
10. Current Release. Except as otherwise specified in this Support Policy, Customer must run only the current release level of any component of the System that Kelvin has made available to Customer. Customer shall install all Maintenance Releases provided to Customer as soon as reasonably possible from the date they are made available by Kelvin. Kelvin will not be obligated to provide Support for any prior release once a Maintenance Release has been provided to Customer.
11. Definitions.
"Error" means a reproducible failure of the Supported Products to perform in substantial conformity with the specifications set forth in the Documentation, whose origin can be isolated to a single cause.
"Incident" means a Support request that begins when Customer contacts Kelvin to report one specific Error and ends when Kelvin either: (a) Resolves the Error; or (b) determines in its sole discretion that the Error cannot be Resolved or is an error that falls outside of Kelvin’s Support obligations (or example, because the error is due to a Service Exception).
"Maintenance Release" means any update, upgrade, release, or other adaptation or modification of the Supported Product, including any updated Documentation, that Kelvin may provide to Customer from time to time during the Subscription Term, which may contain, among other things, error corrections, enhancements, improvements, or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency, or quality of the Supported Product, but does not include any New Version.
"New Version" means any new version of a Supported Product that Kelvin may from time to time introduce and market generally as a distinct licensed product (as may be indicated by Kelvin's designation of a new version number), and which Kelvin may make available to Customer at an additional cost under a separate written Agreement.
"Remote Services" means the delivery of Support remotely over the Internet.
"Resolve" means the provision of: (a) support services that, in Kelvin's sole discretion, correct the Error; (b) information to Customer that corrects the Error; (c) information to Customer on how to obtain a software solution that corrects the Error; (d) notice to Customer that the Error is caused by a known, unresolved issue or an incompatibility issue with the Supported Product; (e) information to Customer that identifies the Error as being corrected by upgrading to a newer release of the Supported Product; or (f) notice to Customer that the Error has been identified as arising out of or resulting from a Service Exception.
"Respond" means Kelvin's initial communication with Customer, whether by telephone, email, or otherwise, acknowledging Customer's request for Support in connection with a specific Error. "Response" has a correlative meaning.
“Severity Level One Incident" means an Error that causes a Supported Product not to operate and has a critical impact on Customer's business operations.
"Severity Level Two Incident" means an Error that results in a lack of Supported Product functionality and materially degrades significant aspects of Customer's business operations.
"Severity Level Three Incident" means an Error that impairs the performance of the Supported Product but does not substantially affect Customer's business operations.
"Support" means, in connection with the identification, diagnosis, and correction of Errors, Kelvin's provision of: (a) email assistance; (b) Remote Services; (c) access to technical information on Kelvin's website for proper use of the Supported Products, and (d) other support and maintenance assistance as determined by Kelvin in its sole discretion.
"Support Hours" means 8 am to 5pm CST, Monday through Friday, excluding weekends and U.S. national holidays.
Exhibit C · Service Level Objective for Cloud Components
This service level objective (“SLO”) applies only to the Cloud Components identified in the Order Form. This SLO is incorporated into the Master Subscription and License Agreement (the “Agreement”) between Kelvin and Customer. This SLO is binding only on Customer and Kelvin and does not apply to third parties. The terms of this SLO will terminate upon expiration or termination of the Agreement. All capitalized terms used herein but not defined will have the meaning set forth in the Agreement . Further, as used in this SLO, calendar months and other timeframes are in the Central time zone, and business days and business hours refer to the period from 8:00 a.m. to 5:00 p.m. on any day except Saturday, Sunday, or any federal legal holiday in the United States.
Service Availability and Objective.
Uptime Objective. Kelvin’s Monthly Uptime objective for the Cloud Components is 99% on a 24x7 basis over any continuous three-month quarterly calendar period in a calendar year (from January 1st through March 31st, April 1st through June 30th, July 1st through September 30th, or October 31st through December 31st).
Planned Maintenance. Kelvin reserves the right to perform maintenance on the Cloud Components from time to time (“Planned Maintenance”). This Planned Maintenance may prevent the Cloud Components from being accessed or used by Users during this time period.
Notification. Kelvin will announce all Planned Maintenance for the Cloud Components via email at least 24 hours in advance. During each period of Planned Maintenance, any User attempting to access such Cloud Components will be notified via the Cloud Components that such Cloud Components are unavailable due to maintenance.
