Kernel Terms of Service for Data Subjects

Kernel Terms of Service

(Effective Date: June 25, 2021)

These Terms of Service (these “Terms of Service”) form a binding contract between you (“DATA SUBJECT, “you” or “your”) and HI, LLC, d/b/a Kernel (together with its subsidiaries, agents, employees, successors and assigns, “KERNEL,” “we,” “us”). These Terms of Service apply to your use of KERNEL-issued neurotechnology products (including use enabled through a Kernel customer such as a research institution), any successor product thereto, any related mobile applications, our platform or cloud referred to as the Kernel Cloud, and any research or user portal websites that link to our Privacy Policy and/or our Terms of Use (collectively, the “Services”).

PLEASE READ THESE TERMS OF SERVICE CAREFULLY. THEY CONTAIN IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS. BY ACCESSING OR USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS OF SERVICE AND YOU AGREE TO BE BOUND HEREBY. IF YOU DO NOT AGREE TO THE TERMS OF SERVICE, YOU MAY NOT USE OR ACCESS THE SERVICES.

THIS AGREEMENT ALSO CONTAINS A DISPUTE RESOLUTION CLAUSE THAT REQUIRES YOU TO RESOLVE DISPUTES WITH KERNEL THROUGH BINDING INDIVIDUAL ARBITRATION (WITH LIMITED EXCEPTIONS) UNLESS YOU OPT OUT OF ARBITRATION AS REQUIRED BELOW, AS WELL AS A WAIVER OF YOUR RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. PLEASE CAREFULLY REVIEW SECTION 14 FOR DETAILS.

1. Additional Terms. 
   You understand and acknowledge that we will collect, use, disclose and otherwise handle Personal Data (as defined in our Privacy Policy) through the Services about you as set forth in our Privacy Policy, which is hereby incorporated by reference. You acknowledge we may collect, use, disclose and otherwise handle such Personal Data in accordance with our Privacy Policy.
   
   
2. Modification to these Terms or the Services. Except for Section 14, providing for binding arbitration and waiver of class action rights, we may revise these Terms of Service from time to time in our sole discretion. If we do, we will post a revised version on www.kernel.com and/or provide you notice of material changes as required by law. Your continued use of the Services after the effective date of such revised Terms of Service means that you accept and agree to the changes. We may change or discontinue, temporarily or permanently, any feature, component, or content of the Services at any time without notice. KERNEL is not liable to you or to any third party for any modification, suspension, or discontinuance of any feature, component, or content of the Services. We reserve the right to determine the timing and content of any Services updates, which may be automatically downloaded and installed without prior notice to you.
    
3. Term and Termination. These Terms of Service will remain in force for as long as you use and/or access the Services and Sections 6-14 below will remain in force after the termination or of these Terms of Service. You may terminate your use of the Services at any time by closing your Account and uninstalling and ceasing to use the Services. We may, in our sole discretion and with or without cause, unilaterally suspend or terminate your account or your right to use the Services at any time and without any notice to you.
   
   
4. Kernel Account. In order to access and/or use the Services, you may be required to create a Kernel account (your “Account”) and provide KERNEL certain personal information about yourself. This information will be treated in accordance with our Privacy Policy. You represent and warrant to KERNEL that all such information will remain true, accurate, current, and complete during your use of the Services, and that you are authorized to provide such information. Your account shall comply with the Acceptable Use Policy, and you may not create or use an account for anyone else, nor permit anyone else to use your Account. You are solely responsible for maintaining the confidentiality of your log-in credentials and for all activities that occur through the use of your Account. You agree to notify KERNEL immediately of any suspected unauthorized use. To the extent allowed by law, KERNEL is not liable for any losses by any party caused by unauthorized use of your Account.
   
   
5. Eligibility. By creating an Account and using the Services, you represent and warrant that you are at least 16 years old (or, as applicable, at least the age of majority for consent in your jurisdiction) and can form legally binding contracts under applicable law. By accessing or using the Services, you represent and warrant that you are eligible to do so. If you are accepting these Terms of Service on behalf of another individual, you represent and warrant that you are eligible and have the authority, right and capacity to legally bind such individual.
   
   
6. Intellectual Property. As between us, the Services, the Kernel Content (as defined below) and all associated intellectual property rights are, and will remain, the property of KERNEL. Except as expressly stated in these Terms of Service, you are not granted any intellectual property rights in or to the Services. Kernel Content includes any photos, images, graphics, video, audio, data, text, software, works of authorship of any kind, and other information, content, or other materials that are posted, generated by, provided, or otherwise made available through the Services.
   
   
   1. License Grant by Kernel. KERNEL grants you a personal, revocable, non-exclusive, non-transferable, limited right to use the Services in accordance with these Terms of Service. This license is provided solely for your personal, noncommercial use and enjoyment of the Services as permitted in these Terms of Service. Without limiting the foregoing, you shall not decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the Services, for any purpose; or modify, adapt, improve, or create any derivative work from the Services.
      
      
   2. License Grant by You. Without limiting any of Kernel’s rights set forth herein, to the extent you have ownership rights in Product Data (as defined in the Privacy Policy) including but not limited to information related to or collected regarding brain activity through use of the KERNEL Services and all visualizations thereof, you grant KERNEL a perpetual, irrevocable, worldwide, non-exclusive, transferable, sublicensable, royalty-free license to use, copy, modify, reproduce, translate, create derivative works from, and distribute such Product Data, including for research and development purposes and to develop and commercialize new products and services. If you request deletion of your Personal Data as set forth in the Privacy Policy, KERNEL retains the right to maintain and commercialize and share any such information in an anonymous or deidentified form pursuant to this license.
      
      Use Restrictions. You shall not violate any applicable laws, rules, or regulations in connection with your use of the Services; use the Services for any other purpose not permitted by KERNEL hereunder; and/or circumvent, disable, or tamper with any security-related components or protective measures applicable to the Services or remove, alter, or obscure any KERNEL proprietary notice.  
      
      You agree to abide by the rules and policies established from time to time by KERNEL, including, for example, KERNEL’s Acceptable Use Policy (as the same may be updated by us from time to time) and required updates to the Services and obtaining patches.
      
      Use the Service at Your Own Risk. If you rely on the Services or any information obtained or generated through the Services, you do so solely at your own risk. Our goal is to provide helpful and accurate information through the Services, but we make no endorsement, representation, or warranty of any kind about the Services or any information you receive through the Services, including the accuracy, reliability, availability, effectiveness, or correct use thereof. 
7. YOUR USE OF SERVICES IS INTENDED FOR INFORMATIONAL AND/OR INVESTIGATIONAL PURPOSES ONLY AND IS NOT INTENDED FOR USE IN CONNECTION WITH THE DIAGNOSIS, PREVENTION, TREATMENT, OR CURE OF ANY MEDICAL CONDITION. KERNEL DOES NOT ENDORSE ANY SUCH USAGE AND DISCLAIMS ANY AND ALL LIABILITY WITH RESPECT TO ANY SUCH USAGE. You should always consult a physician before making any changes to your activity based on information obtained by or through the Services, or if you have any questions regarding a medical condition.
   
   
8. Third Party Content. To increase value to our users, we may provide links or references to third party websites or services within the Services. We have no control of such websites or services and do not assume any responsibility or liability for any damage or loss of any kind for or due to their content, functionality, or practices. If you decide to access these third-party websites or services, you do so at your own risk. We suggest that before using these third-party websites or services you read their terms of use and privacy policies (if any).
   
   
9. Feedback. In your discretion, you may provide KERNEL suggestions or other feedback, including for product or service offerings or improvements or new features (“Feedback”). You grant KERNEL a non-exclusive, perpetual, irrevocable, transferrable license to use Feedback and ideas generated therefrom without any restrictions, attribution, or compensation to you.
   
   
10. Indemnification.You agree to indemnify, defend and hold harmless Kernel and our officers, directors, employees and agents from and against any and all losses, damages, costs and expenses (including attorneys’ fees) resulting from any demands, claims or actions brought against us arising as a result of any breach or violation of these Terms of Service by you or your violation of any law or rights of a third party (“Claim”). Kernel has the right, at our expense, to assume exclusive defense against any Claim and all negotiations for settlement and you agree, upon request, to cooperate with us in the defense of any such Claim.
    
    
11. Disclaimer of Warranties. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES ARE MADE AVAILABLE "AS IS" AND "AS AVAILABLE", WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, OR ANY GUARANTY OR ASSURANCE THE SERVICES WILL BE AVAILABLE FOR USE, WILL PERFORM AS DESCRIBED OR IS ACCURATE, COMPLETE OR ERROR FREE. KERNEL MAKES NO WARRANTY REGARDING ANY MALICIOUS OR UNAUTHORIZED CODE AND YOU ARE SOLELY RESPONSIBLE FOR ENSURING YOU HAVE APPROPRIATE SCANNING AND PROTECTIVE MECHANISMS FOR THE SECURITY OF YOUR EQUIPMENT, PROGRAMS AND INFORMATION.
    
    
12. Limitation of Liability. YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SERVICES REMAINS WITH YOU. 

    
    

    NEITHER KERNEL NOR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH (I) THESE TERMS OR YOUR USE OF THE SERVICES WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT KERNEL HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. 

    IN NO EVENT WILL KERNEL’S AGGREGATE LIABILITY ARISING OUT OF THESE TERMS OR RELATING TO YOUR USE OF THE SERVICES, EXCEED ONE HUNDRED U.S. DOLLARS (US$100). THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN KERNEL AND YOU. 

    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. IF YOU ARE A NEW JERSEY RESIDENT, THE LIMITATION OF LIABILITY IN THIS SECTION SHALL APPLY UNLESS SUCH DAMAGES ARE THE RESULT OF OUR NEGLIGENT OR RECKLESS ACTS OR OMISSIONS; AND WE ARE NOT, IN ANY CASE, LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES.
    
    

13. Dispute Resolution and Binding Arbitration.

    PLEASE READ THIS SECTION CAREFULLY, AS IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE OR PARTICIPATE IN A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. 

    1. Informal Dispute Resolution. Almost all customer service disputes can be resolved to the user’s satisfaction by contacting our customer service team at https://www.kernel.com/contact. For any issue or dispute that arises between you and KERNEL both parties acknowledge and agree that they will first make a good faith effort to resolve it informally before initiating any formal dispute resolution proceeding in arbitration or otherwise. For any dispute you initiate, you agree to submit a written description of the dispute along with the email address associated with your account and the relief you are seeking through KERNEL’s customer support page, located at https://www.kernel.com/contact. For any dispute that KERNEL initiates, we will send our written description of the dispute and relief we are seeking to the email address associated with your account.
       
       
    2. Agreement to Arbitrate. If, the parties are unable to resolve their dispute using the informal resolution procedure specified above within sixty days then either party may initiate binding arbitration as the sole means to resolve such dispute. You and KERNEL agree to resolve any claims and disputes arising out of or relating to these Terms of Service (including their formation, interpretation, performance, or breach), your relationship with KERNEL, or any other dispute between you and KERNEL through final and binding arbitration in accordance with this Section 14. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party retains the right to (1) bring an action in state or federal court solely for injunctive relief to stop unauthorized use or abuse of its intellectual property rights (for example, trademarks, trade secrets, copyrights, or patent rights, but not privacy or publicity rights) without first engaging in arbitration or the informal dispute-resolution process described above; (2) elect to have any claims resolved in a small claims court in an individual basis for disputes or claims within the scope of that court’s jurisdiction; and (3) seek a declaratory judgment, injunction, or other equitable relief in a court of competent jurisdiction regarding whether a party’s claims are time-barred or may be brought in small claims court. Seeking such relief shall not waive a party’s right to arbitration under this agreement, and any filed arbitrations related to any action filed pursuant to this paragraph shall automatically be stayed pending the outcome of such action. YOU AND KERNEL HEREBY WAIVE YOUR RESPECTIVE CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration (except those exempted from the arbitration requirement in this paragraph).
       
       
    3. Arbitration Procedures. The Federal Arbitration Act governs the interpretation and enforcement of this dispute resolution provision, and these Terms of Service evidence a transaction involving interstate commerce. Arbitration shall be administered through JAMS, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (as modified by these Terms of Service); except that if a claim exceeds $250,000, then the JAMS Comprehensive Arbitration Rules and Procedures shall apply. The JAMS Rules and instructions for how to initiate an arbitration are available from JAMS at www.jamsadr.com or 1-800-352-5267. If there is a conflict between JAMS Rules and the rules set forth in these Terms of Service, the rules set forth in these Terms of Service will govern.
       
       Pursuant to the applicable JAMS Rules and Consumer Arbitration Minimum Standards, you will be required to pay $250 to initiate an arbitration against KERNEL. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, the arbitrator may require KERNEL to pay the portion of that fee that exceeds the cost of filing suit. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise. If the arbitrator finds the arbitration to be non-frivolous, KERNEL will pay all of the actual filing and arbitrator fees for the arbitration, provided your claim does not exceed $75,000. For claims above $75,000, fees and costs will be determined in accordance with applicable JAMS rules. The parties agree that JAMS has discretion to modify the amount or timing of any administrative or arbitration fees due under JAMS’s Rules where it deems appropriate, provided that such modification does not increase the costs to you, and you waive any objection to such fee modification. The parties also agree that a good-faith challenge by either party to the fees imposed by JAMS does not constitute a default, waiver, or breach of this Section 14 while such challenge remains pending before JAMS, the arbitrator, and/or a court of competent jurisdiction, and that any and all due dates for those fees shall be tolled during the pendency of such challenge.
       
       Arbitration under these Terms of Service shall be held at any reasonable location in the United States convenient for you. If the amount in controversy does not exceed $10,000 and you do not seek injunctive or declaratory relief, then the arbitration will be conducted solely on the basis of documents you and KERNEL submit to the arbitrator, unless the arbitrator determines that a hearing is necessary. If the amount in controversy exceeds $10,000 or seeks declaratory or injunctive relief, either party may request (or the arbitrator may determine) to hold a hearing, which shall be via videoconference or telephone conference unless the parties agree otherwise. If a party timely serves an offer of judgment under Federal Rule of Civil Procedure 68, or a state-law equivalent, and the judgment that the other party finally obtains is not more favorable than the unaccepted offer, then the other party shall pay the costs, including filing fees, incurred after the offer was made.
       
       
    4. Authority of Arbitrator. Except as set forth in Section 14(g), the arbitrator, and not any federal, state or local court or agency, shall have the exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms and this Agreement, including, but not limited to any claim that all or any part thereof are void or voidable, whether a claim is subject to arbitration, and any dispute regarding the payment of JAMS administrative or arbitrator fees (including the timing of such payments and remedies for nonpayment).
       
       The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the applicable JAMS rules, and these Terms of Service. The arbitrator has the same authority to award relief on an individual basis that a judge in a court would have under law or in equity. The arbitrator may not preside over any form of class, joint, collective or representative proceeding or award relief for or against anyone who is not a party to the proceeding. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. The award of the arbitrator is final and binding upon you and KERNEL. The arbitrator’s decision may be entered as a judgment in a court of competent jurisdiction.
       
       
    5. Ability to Opt Out: You can decline this agreement to arbitrate by notifying KERNEL in writing at https://www.kernel.com/contact, and providing the following information: (1) your full name; (2) your mailing address; (3) the email address associated with your KERNEL account, (4) your phone number; and (5) and clear statement that you wish to opt out of this arbitration provision in these Terms of Service. To be effective the Opt-Out Notice must satisfy all of the foregoing requirements and be delivered to KERNEL no later than 30 days after the date of your first acceptance of these Terms of Service by using the Services. If you opt-out of these arbitration provisions, KERNEL also will not be bound by them.
       
       
    6. Changes to this Section. KERNEL will provide 30 days’ notice of any changes to the dispute resolution provisions contained in this Section 15. Changes will become effective on the 30th day. If you continue to use the site after the 30th day, you agree that any unfiled claims of which KERNEL does not have actual notice are subject to the revised clause.
       
       
    7. No Class or Representative Actions. TO THE EXTENT ALLOWABLE UNDER APPLICABLE LAW, YOU AND KERNEL AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Class arbitrations, class actions, and private attorney general actions are not allowed, and the parties expressly waive their right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth in this Section 14 shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes. Notwithstanding the foregoing, if there is a final judicial determination that applicable law precludes enforcement of this Paragraph’s limitations only as to a particular remedy, then that remedy (and only that remedy) must be severed from the arbitration and may be sought in court. The parties agree, however, that any adjudication of remedies not subject to arbitration shall be stayed pending the outcome of any arbitrable claims and remedies. This provision does not prevent you or KERNEL from participating in a class-wide settlement of claims.
14. Governing Law and Jurisdiction. These Terms of Service shall be governed by and construed in accordance with the laws of the State of New York, excluding its conflict of law rules. In any circumstances where these Terms of Service permit the parties to litigate in court, you specifically agree and submit to the jurisdiction of the State and Federal Courts situated in the State of New York, County of New York. You further agree to accept service of process by U.S. mail and hereby waive any and all jurisdictional and venue defenses otherwise available. [The Uniform Computer Information Transactions Act does not apply to these Terms and Conditions.]
    
    
15.  Miscellaneous.
    1. Entire Agreement; No Waiver; Severability. The terms and conditions herein constitute the entire agreement between the parties, and supersede all prior understandings and representations (oral or written) between you and KERNEL with respect to the subject matter hereof. Our failure to insist upon strict adherence to any term of these Terms of Service shall not be considered a waiver. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction.
       
       
    2. Notices; Electronic Communications. Any notices to KERNEL must be delivered either in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service to 5042 Wilshire Blvd. #26878, Los Angeles, California 90036.
       
       
    3. Without limiting the foregoing, you consent to receiving electronic communications from us (including, for example, notices under these Terms).
       
       
    4. Notice to California Users. Under California Civil Code Section 1789.3, California users of the Services are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (800) 952-5210.
       
       
    5. Support and Questions. If you have any questions about the use of the Services or have technical difficulties, you will find FAQs available at https://docs.kernel.com or you may contact us at https://www.kernel.com/contact.