1. About these Terms
1.1 These Terms of Service (the “Terms”) apply to your download, access and/or use of Kelvin’s mobile application, whether on a computer or mobile device (the “App”), including your participation in any research projects (in support of science) facilitated by the App (collectively, the “Services”). These Terms are a legal agreement between Kelvin (hereinafter, “Kelvin”, “us”, “we” or “our”) and you and contain important information about your rights and obligations in relation to our Services.
1.2 If you do not agree to these Terms or any future updated version of them then you must not access and/or use, and must cease all access and/or use of, any of our Services. We can make changes to these Terms at any time in accordance with Section 17.2, below, and your continued use of our Services after the Terms have been updated shall confirm your acceptance of the updated Terms.
1.4 For use of our Services, you agree that you are at least 18 years old.
1.5 You are responsible for the internet connection and/or mobile charges that you may incur for accessing and using our Services. You should ask your mobile operator or internet service provider if you are unsure what these charges will be, before you access and/or use our Services.
2.1 When using our Services you will be required to create an account with us. If you do create an account with us, you agree that you shall take all steps necessary to protect your login details and keep them confidential.
2.2 You agree that you shall not give your login details to anyone else or allow anyone else to use your log in details or account.
2.3 We will not be responsible to you for any loss that you suffer as a result of an unauthorized person accessing your account and/or using our Services and we accept no responsibility for any losses or harm resulting from its unauthorized use, whether fraudulently or otherwise.
2.4 Excluding the information contained within your account, you acknowledge and agree that you shall have no ownership or other property interest in any account that you create using any of our Services. We may suspend, terminate, modify, or delete any account at any time for any reason or no reason, with or without notice to you.
2.5 Your account is personal to you and you are not entitled to transfer your account to any other person.
3. User Conduct and Content
3.1 You must comply with the laws that apply to you in the location that you access our Services from. If any law applicable to you restricts or prohibits your from using our Services, you must comply with those legal restrictions or, if applicable, stop accessing and/or using our Services.
3.2 You agree that all the information you provide to use on accessing/or using the Services (“Content”) is and shall remain true, accurate and complete at all times. You acknowledge that you are entirely responsible for all Content that you may upload, communicate, transmit or otherwise make available via our Services.
3.3 You agree not to upload, communicate, transmit, or otherwise make available any Content:
3.3.1 that is or could reasonably be viewed as unlawful, harmful, harassing, defamatory, libellous, obscene or otherwise objectionable;
3.3.2 which you do not have a right to make available lawfully (such as inside information, information which belongs to someone else or confidential information);
3.3.3 which infringes any intellectual property right or other proprietary right of others; or
3.3.4 which contains software virus or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
3.4 You agree that you will not:
3.4.1 use our Services to harm anyone or to cause offence to or harass any person;
3.4.2 use another person or entity’s email address in order to create an account to use our Services;
3.4.3 use our Services for fraudulent or abusive purposes;
3.4.4 disguise, anonymize or hide your IP address;
3.4.5 use our Services for any commercial or business purpose or for the benefit of any third party or to send unsolicited communications;
3.4.6 interfere with or disrupt our Services or servers or networks that provide our Services;
3.4.7 attempt to decompile, reverse engineer, disassemble or hack any of our Services, or to defeat or overcome any of our encryption technologies or security measures or data transmitted, processed or stored by us;
3.4.8 ‘harvest’, ‘scrape’ or collect any information about or regarding other people that use our Services, including, but not limited to, any person data or information (including by uploading anything that collects information);
3.4.9 misuse our Services by knowingly introducing viruses, trojans, worms, logic bombs or other material that is malicious or technologically harmful;
3.4.10 attempt to gain unauthorised access to our Services, the server on which our Services are stored or any server, computer or database connected to our Services;
3.4.11 sell, transfer or try to sell or transfer your account;
3.4.12 use our Services in violation of any applicable law or regulation; or
3.4.13 use our Services in any way not permitted by these Terms.
4. Your breach of these Terms
4.1 Without limitation any other remedies, if we reasonably believe that you are in material breach of these Terms (including by repeated minor breaches), we reserve the right to delete or suspend your account, or suspend or terminate your access to our Services, take any of the following actions, either with or without notice to you:
4.2 Without limitation, any breaches of Sections 3.3 or 3.4 will be considered material beaches.
4.3 You agree to compensate us, according to law, for all losses, harm, claims and expenses that may arise from any breach of these Terms by you.
5. Availability of the Services
5.1 We do not guarantee that any of our Services will be available or error-free at all times or at any given time. We will provide our Services in accordance with any legally required standards. We may change and update our Services without notice to you. We make no warranty or representation regarding the availability of our Services and reserve the right to modify or discontinue the Services in our sole discretion without notice. NOTWITHSTANDING ANYTHING TO THE CONTRARY, YOU ACKNOWLEDGE AND AGREE THAT ANY OR ALL OF OUR SERVICES MAY BE TERMINATED IN WHOLE OR IN PART AT OUR SOLE DISCRETION WITHOUT NOTICE TO YOU. YOU ASSUME ANY AND ALL RISK OF LOSS ASSOCIATED WITH THE TERMINATION OF OUR SERVICES.
6.1 The content on our Services is provided “as is”, for general information only, and without warranties of any kind, whether express or implied. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content found on our Services.
6.2 We make no endorsement, representation, or warranty of any kind about any information found through our Services. The accuracy of information presented through the Service is not intended to match that of medical devices or scientific measurement devices.
6.3 Although we make reasonable efforts to update our content, we make no representations, warranties or guarantees, whether express or implied, that the content on our Services is accurate, effective, complete, up to date, adequate, or reliable.
6.4 To the fullest extent permissible pursuant to applicable law, Kelvin disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement.
6.5 We do not guarantee that our Services will be secure or free from bugs or viruses.
6.6 You are responsible for configuring your information technology, computer programmes and platform to access our Services. You should use your own virus protection software.
7. Limitation of Liability – United States Residents
7.1 NEITHER KELVIN, ITS SUPPLIERS, OR LICENSORS, NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, OR SYSTEM FAILURE ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT KELVIN HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.
7.2 IN NO EVENT WILL KELVIN’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICE EXCEED ONE HUNDRED DOLLARS ($100).
7.3 THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN KELVIN AND YOU.
7.4 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
8. Limitation of Liability – Residents outside the United States
8.1 We are not responsible for:
8.1.1 losses or harm not caused by our breach of these Terms or negligence;
8.1.2 losses or harm which are not reasonably foreseeable by you and us at the time of you agreeing to these Terms, including those losses which happen as a side effect of foreseeable losses. This could include loss of data, loss of opportunity, service interruption, computer or other device failure or financial loss;
8.1.3 any damage that may be caused to any device on which you access or use our Services that is caused in any way by our Services unless that damage is directly caused by our failure to exercise reasonable skill and care in the provision of the applicable Services;
8.1.4 any increase in loss or damage resulting from breach by you of any of these Terms; or
8.1.5 technical failures or the lack of availability of any of our Services where these are not within our reasonable control.
8.2 Unless otherwise specified in these Terms, we do not give any warranty, express or implied, in relation to our Services and you acknowledge that your only right with respect to any problems or dissatisfaction with any of our Services is to discontinue your use of our Services.
9.1 You agree to indemnify and hold harmless Kelvin or its officers, directors, employees, affiliates, agents, licensors, and contractors from and against any claims, suits, actions, demands, disputes, allegations, or investigations brought by any third party, governmental authority, or industry body, and all liabilities, damages, losses, costs, and expenses, including without limitation reasonable attorneys’ fees, arising out of or in any way connected with (i) your access to or use of the Services, (ii) your Content, (iii) your breach or alleged breach of any warranties made by you hereunder or your violation of any other provision of these Terms, or (iv) your violation of any law or the rights of a third-party. We reserve the right to assume control of the defense of any third-party claim that is subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
10. Intellectual Property
10.1 Other than the Content you contribute to, you acknowledge that all copyright, trademarks, and other intellectual property rights in and relating to our Services is owned by or licensed to us.
10.2 Whilst you are in compliance with these Terms, we grant you a non-exclusive, non-transferable, personal, revocable limited license to access and/or use our Services (but not any related object and source code) for your own personal private use, in each case provided that such use is in accordance with these Terms. You agree not to use our Services for anything else. These Terms also apply to any update or patches which we may release or make available for any of the Services and any such update or patch shall be deemed part of the Services for the purposes of these Terms.
10.3 YOU ACKNOWLEDGE AND AGREE THAT, OTHER THAN LICENSE GRANTED TO YOU BY THESE TERMS, YOU SHALL HAVE NO OWNERSHIP OR PROPERTY INTEREST IN ANY OF OUR SERVICES. You must not copy, distribute, make available to the public or create any derivative work from our Services or any part of our Services unless we have first agreed to this in writing.
11.1 The data controller for all personally identifiable information or personal data that we collect about you through or in relation to our Services is Kelvin.
13.1 If you submit comments, ideas, or feedback to us, you agree that we can use, disclose, reproduce, distribute, and exploit them without any restriction or compensation to you. We do not waive any rights to use similar or related ideas or feedback previously known to us, developed by Kelvin, or obtained from sources other than you.
14. Transferring these Terms
14.1 We may wish to transfer all or a part of our rights or responsibilities under these Terms to someone else without obtaining your consent. You agree that we may do so provided that the transfer does not significantly disadvantage you. You may not transfer any of the rights we give you under these Terms unless we first agree to this in writing.
15.1 These Terms, or any part of them, may be terminated by Kelvin without notice at any time, for any reason. The provisions relating to Intellectual Property, Disclaimers, Limitation of Liability, Indemnification and Miscellaneous, shall survive any termination.
16. Dispute Resolution.
16.1 You agree that any dispute between you and Kelvin arising out of or relating to these Terms or the Services, (collectively, “Disputes”) will be governed by the arbitration procedure outlined in this Section.
16.2 Informal Dispute Resolution: Before filing a claim against Kelvin, you agree to try to resolve the Dispute informally by contacting firstname.lastname@example.org. We’ll try to resolve the Dispute informally by contacting you through email. If a dispute is not resolved within 15 days after submission, you or Kelvin may bring a formal proceeding.
16.3 Agreement to Arbitrate: You and Kelvin agree to resolve any Disputes through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below.
16.4 Opt-out of Agreement to Arbitrate: You can decline this agreement to arbitrate by email@example.com within 30 days of first accepting these Terms and stating that you (include your first and last name) decline this arbitration agreement.
16.5 Arbitration Procedures: The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes.
16.6 Exceptions to Agreement to Arbitrate: Either you or Kelvin may assert claims, if they qualify, in small claims court in EU or any United States county where you live or work. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services, or infringement of intellectual property rights (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.
16.7 No Class Actions: You may only resolve Disputes with Kelvin on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed under our agreement.
17. General Terms.
17.1 Entire Agreement. These Terms set out the entire agreement between you and us concerning our Services (as defined in Section 1) and they replace all earlier agreements and understandings between you and us.
17.2 Amendments. We reserve the right to update these Terms from time to time by posting the updated version on our App. You agree that if you do not accept any amendment to our Terms then you shall immediately stop accessing and/or using our Services.
17.3 Severability. If any part of these Terms is held to be invalid or unenforceable under any applicable local laws or by an applicable court, that part shall be interpreted in a manner consistent with applicable law to reflect as nearly as possible our original intentions and the remainder of these Terms shall remain valid and enforceable. If it is not possible to interpret an invalid or unenforceable part of these Terms in a manner consistent with applicable law, then that part shall be deemed deleted from these Terms without affecting the remaining provisions of these Terms.
17.4 Waivers. Our failure to exercise or enforce any of our rights under these Terms does not waive our right to enforce such right. Any waiver of such rights shall only be effective if it is in writing and signed by us.
17.5 Complaints and Dispute Resolution. Most concerns can be solved quickly by contacting us firstname.lastname@example.org.
17.6 Governing Law. The laws of the Republic of Bulgaria, shall govern the interpretation of these Terms and apply to claims for breach of it, without reference to conflict of laws principles. All other claims, including claims regarding consumer protection laws, unfair competition laws, and claims in negligence and tort, will be subject to the laws of the country in which you are resident. If there is a dispute regarding these Terms of Service, then that dispute will be subject to the jurisdiction of the courts of the Republic of Bulgaria, unless the law in your country of residence allows you to choose the courts of that country for the dispute in question. For residents in the United States: You and we irrevocably consent to the exclusive jurisdiction and venue of state or federal courts in San Francisco, California to resolve any claims that are determined not to be arbitrable.
17.7 Notices. Any notices or other communications provided by Kelvin under these Terms, including those regarding modifications to these Terms, will be given: (i) via email or (ii) by posting to the App. For notices made by e-mail, the date of receipt on the message will be deemed the date on which such notice is transmitted.
17.8 Questions. If you have any questions about these Terms or our Services you may contact us by email at email@example.com.