License

KELVIN INC. DEVELOPER SDK LICENSE AGREEMENT

Last Updated: 9/15/2021

IMPORTANT: THE FOLLOWING TERMS AND CONDITIONS APPLY TO ANY USE OF THE KELVIN INC. (“KELVIN”) SDK PACKAGE AVAILABLE THROUGH pypi.org/user/kelvininc/ AND SETS FORTH A LEGALLY BINDING CONTRACT BETWEEN KELVIN AND DEVELOPER (DEFINED BELOW). PLEASE READ THIS DEVELOPER SDK LICENSE AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE USING THE KELVIN SDK. BY CLICKING “I ACCEPT,” ACCESSING OR USING THE KELVIN SDK IN ANY WAY, OR REGISTERING FOR A TEST ACCOUNT, YOU REPRESENT THAT YOU (1) HAVE READ AND UNDERSTAND THIS AGREEMENT AND ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH KELVIN, AND (2) HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE DEVELOPER.

If you access or use the Kelvin SDK and/or a Test Account solely in your individual capacity and for your own, personal use, then all references to “Developer” in this Agreement will be deemed to refer to you as an individual. If you access or use the Kelvin SDK and/or a Test Account on behalf of, or within your capacity as, a representative, agent or employee of any entity, then all references to “Developer” in this Agreement will be deemed to refer to such entity and you agree that you will accurately identify such entity as part of the Test Account request and registration process. PLEASE NOTE THAT THIS AGREEMENT IS SUBJECT TO CHANGE BY KELVIN IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Kelvin will make a new copy available at Docs.kelvininc.com. Kelvin will also update the “Last Updated” date at the top of the Agreement. If Kelvin makes any material changes, and Developer has a Test Account (as defined in Section 3.1 below), Kelvin will also send an e-mail to the e-mail address associated with such Test Account. Any changes to the Agreement will be effective immediately for new users of the Kelvin SDK and will be effective thirty (30) days after posting (or providing to Developer, whichever comes first) notice of such changes for existing users of the Kelvin SDK. Kelvin may require Developer to provide consent to the updated Agreement in a specified manner before further use of the Test Account is permitted. If Developer does not agree to any change(s), Developer should stop using the Kelvin Technology. Otherwise, Developer’s continued use constitutes acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.

  1. Definitions. “Application” means a software application that consists of UI elements, workflow logic, which may or may not consist of statistical/ML models and is containerized. The application can be developed by Kelvin, Company or third party partner utilizing the Kelvin Development Tools (SDK) which is intended to interact with the Kelvin Platform and Software Services. “Kelvin SDK” means Kelvin’s proprietary software development kit which includes application programming interfaces (“APIs”), headers, files, libraries, templates or other sample code and other tools and documentation included in the attached Kelvin SDK package and made available to assist Developer in the creation of Applications. “Kelvin Solution” means Kelvin’s proprietary software platform, known as Kelvin Intelligent Control Software, which enables software applications and statistical models to be created, tested, deployed and managed.

  2. SDK License. Subject to the terms and conditions contained herein, Kelvin grants to Developer a limited, non-transferable, non-sublicensable, non-exclusive, revocable license to (i) use the Kelvin SDK solely to develop and test Application(s) that interoperate with the Kelvin Solution; and (ii) modify, reproduce and create derivative works of the models, algorithms, templates or other sample source code included in the Kelvin SDK in whole or in part and include the binary code of such modifications in such Application(s). Applications which are derived from any code or components included with the Kelvin SDK may only be used by Developer in accordance with the terms of this Agreement or any other agreement that is later entered into between Kelvin and Developer. For clarity, in the event that Developer wants to license or make available any such Application to a third party, Developer must enter into a Distribution Agreement with Kelvin, as further described in Section 3.5 below. Developer will have no right to license, distribute or otherwise transfer the Kelvin SDK or derivatives incorporating any components of the Kelvin SDK to any third parties, unless expressly authorized by Kelvin in a Distribution Agreement. Developer is solely responsible for all activities required by or otherwise related to the development and production of the Application, and the accuracy, completeness, quality, legal right to use or possess, appropriateness and reliability of the Application. Developer shall comply with all laws and regulations applicable to the use, provision and distribution of the Application, including export of the same.

  3. Test Account Access.
    Access Request and Registration. To assist Developer in creating Applications, Developer may request in writing access to one or more online test account(s) for the Kelvin Solution (“Test Account”) for Developer’s non-production use. To access a Test Account, Developer must be pre-approved by Kelvin and complete the account registration process. If Developer registers or requests access to a Test Account, Developer may be required to provide Kelvin with some information about Developer, such as Developer’s name, email address, mailing address, and other contact information. Developer agrees that the information Developer provides to Kelvin is accurate and that Developer will keep it accurate and up-to-date at all times. When Developer registers for a Test Account, Developer may be asked to provide a password. Developer is solely responsible for maintaining the confidentiality of Developer’s Test Account and password, and Developer accepts responsibility for all activities that occur under Developer’s Test Account.
    Access. In the event that Kelvin, in its sole discretion, has supplied Developer with valid credential to access and use a Test Account, then, for so long as Developer continues to remain authorized by Kelvin to access and use such Test Account, Developer may access and use such Test Account as reasonably necessary to develop and test Application(s) that interoperate with the Kelvin Solution, provided that Developer complies at all times with the terms of this Agreement, including without limitation Section 4 below.
    Fees. Kelvin reserves the right to determine pricing for access to Test Accounts. Kelvin may, now or in the future, require that Developer pay fees to access a Test Account. Before Developer pays any fees, Developer will have an opportunity to review and accept the fees that will be charged. All fees are in U.S. Dollars and are non-refundable. Developer authorizes Kelvin to charge all such amounts to the payment method specified in Developer’s Test Account. In the event that Kelvin elects to change its pricing for Developer’s access to Test Account(s), Kelvin will give Developer advance notice of the changes before it applies. Kelvin, at its sole discretion, may make promotional offers with different features and different pricing to any of our customers. These promotional offers, unless made to Developer, will have no bearing whatsoever on Developer’s offer or contract. Kelvin reserves the right to suspend or terminate Test Accounts if any amount is due but unpaid. Third Party Materials. Developer acknowledges that use, reproduction and distribution of certain third party materials included in the Kelvin SDK 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 licenses and not this Agreement. Distribution Rights. Developer acknowledges it may only distribute an Application after Developer and Kelvin have mutually executed a separate agreement with Kelvin that expressly authorizes distribution of such Application (“Distribution Agreement”), subject to any reviews, approval, certification or other requirements set forth therein. The Distribution Agreement will describe the scope of Developer’s authorized distribution of a particular Application, any fees to be paid by Developer to Kelvin, and other terms and conditions relating to the distribution of such Application. Developer acknowledges and agrees not to in any way express or imply that an Application is endorsed by Kelvin. Restrictions. Developer agrees that, to the fullest extent permitted by applicable laws, Developer will not, and will not permit or authorize any other person to, directly or indirectly, do or attempt to do any of the following: (a) share Test Account credentials or make any of Kelvin Solution, Kelvin SDK, or any other documentation, software, or technology that is accessible through the Test Account (together with the Kelvin Solution and Kelvin SDK, the “Kelvin Technology”) available to any third party without Kelvin’s prior written consent; (b) use any Test Account for Developer’s or any of its customers’ or other third party’s regular business operations; © distribute, publicly perform, publicly display, license, sell, resell, share, rent, lease, sublease, assign, or transfer any of the Kelvin Technology to any third party without Kelvin’s prior written consent; (d) reproduce, modify, translate or create derivative works of any part of the Kelvin Technology (other than as expressly permitted by Section 2); (e) disassemble, decompile, reverse engineer or reverse assemble any portion of the Kelvin Technology or attempt to discover any source code or underlying ideas, structure, organizations or algorithms of the Kelvin Technology; (f) access or use the Kelvin Technology in order to build a competitive product or service, or copy any features, functions or graphics of the Kelvin Technology; (g) use the Kelvin Technology or any Application to store or transmit material in violation of third party privacy or intellectual property rights or applicable privacy laws; (h) remove, modify tamper with, or alter any trademark, logo, copyright or other proprietary notices or legends associated with the Kelvin Technology; (i) use the Kelvin Technology or any Application for any unlawful purpose, in violation of any applicable law or in a manner that could otherwise give rise to civil liability; (j) design any Application to alter or interfere with the normal operation, behavior, functionality or performance of, transmit malicious code to, or disrupt the integrity of third party data contained in or hosted on, the Kelvin Technology or any other hardware, device or asset that interacts with or utilizes the Kelvin Technology; (k) interfere with or circumvent any feature of the Kelvin Technology, including without limitation any security or access control mechanism; (l) interfere with or disrupt any network, equipment or server that is connected to or used by the Kelvin Technology; (m) upload or disseminate any virus, adware, spyware, worm or other malicious code; or (n) perform any fraudulent activity, including impersonating any person or entity, claiming a false affiliation, or accessing any Test Account without permission. Kelvin has the right, but not the obligation, to monitor Developer’s use of the Kelvin Technology to determine compliance with the terms and conditions of this Agreement.
    Modifications; Limitations. Developer acknowledges that the form and nature of the Kelvin Technology may change without prior notice. Kelvin is under no obligation to make available to Developer any update or new version of the Kelvin SDK, including related APIs, under this Agreement or for ensuring that any versions of the Kelvin SDK is compatible with Applications developed on previous versions of the Kelvin SDK. Kelvin reserves the right to modify or discontinue the Kelvin Technology, including access to any of Developer’s Test Account(s) and/or the Kelvin SDK, in whole or in part, at any time (including by limiting or discontinuing certain features), temporarily or permanently, without notice to Developer. In such case, Kelvin will have no liability whatsoever on account of any change to the Kelvin Technology or any suspension or termination of Developer’s access to or use of the Kelvin Technology or Test Account. Kelvin reserves the right to limit Developer’s access to the Kelvin Technology at any time, including by imposing caps on data, limitations on API calls or other limitations regarding Developer’s utilization of the Kelvin Technology.
    Proprietary Rights. 6.1 Kelvin IP. Subject only to the limited rights expressly granted under this Agreement Kelvin and/or its licensors shall retain all right, title and interest in and to the Kelvin Technology, including the Kelvin SDK (including without limitation the API and all models, algorithms, templates or other sample code or components provided therein), Test Account and any and all intellectual property rights embodied therein. Any rights not expressly granted in this Agreement are reserved to Kelvin (and its licensors). If Developer provides Kelvin with any suggestions, requests, report edits, corrections or other feedback relating to the Kelvin SDK or other Kelvin Technology (“Feedback”), Developer hereby grants to Kelvin a worldwide, perpetual, irrevocable, royalty-free, transferable, non-exclusive right to freely disclose, reproduce, distribute, sublicense, modify, exploit and otherwise use and commercialize the Feedback in connection with Kelvin’s business and to include such Feedback in Kelvin’s products and services, without any obligations or restrictions. 6.2 Developer IP. As between Developer and Kelvin, and subject to Kelvin’s intellectual property rights in and to the Kelvin Technology, Developer shall retain ownership of all of Developer’s right, title and interest in and to its Application(s), including all of Developer’s intellectual property rights embodied therein. Notwithstanding the foregoing, Developer covenants not to assert against Kelvin, its affiliates, licensees, contractors or users, any intellectual property rights in and to any modifications made by Developer to any models, algorithms, sample code or other materials included within the Kelvin SDK. 6.3 No Trademark Rights. Nothing in this Agreement gives Developer a right to use any of Kelvin’s trade names, trademarks, service marks, logos, domain names or other distinctive brand features. Developer agrees not to include the term “Kelvin” as part of the name for any Application developed using the Kelvin SDK or adopt, use or attempt to register, whether as a corporate name, domain name, product name, trademark, service mark or other indication of origin, any trademark of Kelvin or any mark that is confusingly similar to or will dilute the distinctive nature of the Kelvin trademarks. 6.4 Confidentiality Obligations. If Kelvin provides Developer with access to a Test Account, all non-public information regarding the Kelvin Technology learned by Developer through its use of the Test Account will be considered Kelvin’s confidential and trade secret information (“Confidential Information”). Developer will only use such Confidential Information to exercise its license rights granted under this Agreement. Except as expressly permitted herein, Developer shall not provide, disclose, or make available any Confidential Information to any person or entity other than Developer’s employees or contractors whose access to such Confidential Information is necessary to enable Developer to exercise its rights under this Agreement; provided that any such employees and contractors must bound by confidentiality obligations that are at least as protective of the Confidential Information as those contained in this Agreement and must only be permitted to use or access the Kelvin Technology or Test Account in their capacity as an employee or contractor of Developer (and not for the benefit of any third party). Developer agrees to take all reasonable steps to ensure that no unauthorized person has access to Developer’s Test Account or the Confidential Information. Developer will immediately give notice to Kelvin of any unauthorized use or disclosure of the Test Account or Confidential Information and will reasonably cooperate with Kelvin in the investigation of the matter. 6.5 Data Transmission. Developer will only transit simulation or historical data in connection with Developer’s evaluation of its Applications in the Test Account under this Agreement. Developer will not upload to the Kelvin Technology or use the Kelvin Technology under this Agreement to collect or transmit any personally identifiable information or any live data gathered from actual assets or commercial or production environments of Developer, its customers, or any other third party. Kelvin is not responsible for the correction, damage, destruction, loss or failure to store any data provided by Developer or that is caused by Developer or any Application. Term and Termination. This Agreement is effective until terminated by Kelvin or Developer as described herein. Kelvin may postpone, curtail, suspend, or even terminate Developer’s access to Developer’s Test Account or any other Kelvin Technology at any time upon five (5) days’ written notice to Developer. In addition, Kelvin may immediately terminate this Agreement at any time if: (a) Kelvin suspects that Developer has breached any provision of this Agreement; (b) Kelvin is legally required to do so; © Kelvin decides not to provide the Kelvin SDK or Kelvin Solution to users in the country in which Developer resides; or (d) on thirty (30) day’s written notice for Kelvin’s convenience. Developer further agrees that Kelvin may immediately disable the ability of any Application to interoperate with the Kelvin Technology and suspend or terminate Developer’s Test Account or right to access the Kelvin Technology for any of the foregoing reasons in subsections (a)-©. Developer may terminate this Agreement at any time by discontinuing all use of the Kelvin SDK (and if Developer does not access the Test Account for three (3) consecutive months, such nonuse shall constitute termination by Developer). Upon any termination of this Agreement, Developer will immediately: (i) cease the use of all of the Kelvin Technology; and (ii) destroy all copies of the Kelvin SDK, related Applications built using the Kelvin SDK, and any other documentation, Kelvin Technology or other copies of Kelvin’s Confidential Information in Developer’s possession or control. The provisions of Sections 1, 3.5 and 6 through 11 will survive any termination or expiration of this Agreement.
    No Warranty. THE KELVIN TECHNOLOGY, INCLUDING THE KELVIN SDK IS PROVIDED, IF AT ALL, ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, KELVIN DOES NOT WARRANT THAT DEVELOPER’S USE OF THE KELVIN TECHNOLOGY DIRECTLY OR THROUGH ANY APPLICATION OR TEST ACCOUNT WILL BE ERROR-FREE, SECURE, UNINTERRUPTED OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY OF THE FOREGOING ISSUES WILL BE CORRECTED. NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ARE PROVIDED TO DEVELOPER AND KELVIN EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING: (A) NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF KELVIN IS ADVISED OF THE PURPOSE), TITLE, QUIET ENJOYMENT AND ACCURACY, AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE.
    Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL KELVIN OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR DATA USE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES ARISING OUT OF DEVELOPER’S USE OF THE KELVIN TECHNOLOGY OR ANY RELATED APPLICATIONS. MOREOVER, THE AGGREGATE LIABILITY OF KELVIN ARISING IN CONNECTION WITH THIS AGREEMENT AND/OR ITS SUBJECT MATTER, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION CONTRACT, STRICT LIABILITY, AND/OR OTHER TORT, SHALL IN NO EVENT EXCEED THE GREATER OF (i) THE AMOUNT OF FEES PAID BY DEVELOPER TO KELVIN UNDER THIS AGREEMENT DURING THE TWELVE MONTH PERIOD PRECEDING THE INITIAL CLAIM OR (ii) FIVE HUNDRED DOLLARS ($500). MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION.
    Indemnification. Developer will defend, indemnify and hold Kelvin and its directors, officers, employees, suppliers, consultants, contractors and agents harmless from and against any and all actual or threatened third party claims, suits, actions or proceedings arising out of relating to: (a) Developer’s edge devices, hardware, or equipment, including any use or misuse of the Kelvin Technology by Developer or through Developer’s Test Account to control any edge devices, hardware, or equipment; (b) any allegation that Developer or any Application infringes any third party’s intellectual property right, misappropriates any trade secret of any third party or violates an individual’s rights of publicity or privacy; © any violation by Developer of any applicable law or regulation; (d) any non-compliance by Developer with the terms of this Agreement; (e) any personal injury or tangible property damage directly caused by Developer or its Application; or (f) any gross negligence, misrepresentation, or willful misconduct on the part of Developer or its representatives. Kelvin shall promptly notify Developer when it becomes aware of any claim eligible for indemnification, provided that any delay in providing such notice shall not relieve Developer of its indemnity obligations under this Agreement unless, and only to the extent, that the Developer was prejudiced by the delay. Kelvin shall reasonably cooperate with Developer in the defense of such claim at the Developer’s expense. Developer shall have the right to control the defense and all negotiations relative to the settlement of any such claim, including without limitation selection of counsel, provided that (i) no settlement imposing any affirmative or negative obligations on the part of the Kelvin, including any settlement that includes admission of liability or wrongdoing by Kelvin, may be made without the express written consent of the Kelvin, and (ii) Kelvin reserves the right to participate through non-controlling counsel selected by Kelvin at its own expense. General. Nothing in this Agreement is to be construed as creating an agency, partnership, or joint venture relationship between the parties hereto. Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever. Each party is responsible for all of its own expenses incurred in the performance of its obligations under this Agreement. Kelvin may freely assign this Agreement. Developer may not assign, transfer, or sublicense any obligations or benefit under this Agreement without the prior written consent of Kelvin and any purported transfer or assignment in violation of this Section is void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their successors and assigns. All legal notices and other communications required or permitted under this Agreement shall be in writing, addressed to the applicable party at its address set forth in this Agreement, and shall be deemed effectively delivered: (a) upon personal delivery, (b) upon delivery by a courier service as confirmed by written delivery confirmation, © five (5) days after deposit in the mail, postage prepaid. Kelvin may also provide electronic notices to Developer by general notice through Developer’s Test Account or by email to Developer’s email address(es) on record. This Agreement will be governed by the laws of the State of California, without regard to its conflict of laws principles, and all suits hereunder will be brought solely in Federal Court for the Northern District of California, or if that court lacks subject matter jurisdiction, in any California State Court located in San Mateo County. If any provision of this Agreement is determined to be unenforceable, that provision will be limited or eliminated to the minimum extent necessary for this Agreement to remain enforceable. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which taken together shall constitute one and the same instrument. No term or provision hereof will be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. Except for modifications made by Kelvin in accordance with the terms of this Agreement above, this Agreement may be amended or supplemented only by a writing that refers explicitly to this Agreement and that is signed by both parties. This Agreement supersedes all prior agreements, and all prior and contemporary proposals and discussions relating to the subject matter of this Agreement, and controls over the preprinted terms of any purchase order or similar document. All notices, modifications and waivers under this Agreement must be in writing.