Last Updated: February 1, 2025
Welcome! Please review these Terms of Service carefully. By using our services, which includes our websites, including heykernel.com, or any of our other related services (collectively, the “Services”), these Terms of Service become a binding legal commitment between Kernel Intelligence, Inc. (“we,” “us,” “ours,” or “Kernel”) and the user of our services (“you,” “your,” “yours”). Sometimes in these Terms of Service we call you and us a “party” or together, the “parties.”
ARBITRATION, JURY TRIAL WAIVER, AND CLASS ACTION WAIVER: EXCEPT AS OTHERWISE DESCRIBED IN THE DISPUTES SECTION BELOW, BY USING THE SERVICES, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING ARBITRATION AND YOU WAIVE YOUR RIGHT TO A JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION. PLEASE REVIEW THE DISPUTES SECTION CAREFULLY.
BY USING THE SERVICES, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO ALL OF THE TERMS IN THIS TERMS OF SERVICE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, DO NOT USE THE SERVICES.
These Terms of Service contain defined terms that have specific meanings. Some terms are defined in this Section 2 and some terms are defined in other sections of these Terms of Service. You can tell that a term is being defined when it has quotation marks around it. Defined terms are also capitalized when used in these Terms of Service (except for when we refer to you/your/yours, we/us/ours, or party/parties, which are terms defined in Section 1 that are not capitalized when used in these Terms of Service).
2.1 “Aggregated Data” means any data (facts, figures, items of information, or statistics) or data compilations aggregated, compiled, copied, created, or derived by us, or our affiliates or third parties on our behalf, from User Data or your and other users’ use of the Services that has been anonymized or deidentified.
2.2 “Applicable Law” means any law that applies to you or us in a given circumstance; this includes laws, regulations, court orders, and arbitration determinations and agreements.
2.3 “Kernel Content” means the content created or provided by Kernel, including educational materials, marketing materials, forms and agreements, and other materials displayed in or provided in connection with the Services, in any form, such as presentations, videos, handouts, checklists, and emails.
2.4 “Feedback” means any suggestion, enhancement request, recommendation, correction, change, or other feedback regarding the Services or Kernel Content, including from you or another user of the Services.
2.5 “Personal Information” means information that identifies, relates to or could reasonably be linked, directly or indirectly, with a particular individual or household, excluding information publicly available from government records or Aggregated Data.
2.6 “Privacy Policy” means the Kernel Privacy Policy located at heykernel.com/privacy and successor webpages, as amended from time to time.
2.7 “User Data” means the data (facts, figures, items of information, or statistics) and data compilations you provide to us, you otherwise make available to us, or we obtain about you in connection with the Services at any time, including Personal Information.
3.1 Our ownership of the Services and Kernel Content. Between you and us, we own or hold all right, title, and interest to the Services and Kernel Content (collectively, “Kernel Property”), all components and derivative works of the Kernel Property, and the copyrights, patents, trade secrets, trademarks, and other intellectual property rights pertaining to any aspect of the Kernel Property. We reserve all rights in the Kernel Property not expressly granted to you in these Terms of Service. You acquire no ownership interest, derivative work, or component of the Kernel Property through your use of it. You are not granted any right, title, or interest to use any trademark, service mark, logo, or trade name of Kernel.
3.2 Our licensed and permitted use of User Data; our ownership of Aggregated Data made from User Data. You grant us a non-exclusive, royalty-free, perpetual, irrevocable, transferable, and sublicensable worldwide right and license to access, store, process, use, copy, record, modify, make derivative works from, translate, display, publicly perform, broadcast, transmit, publish, distribute, disclose, transfer, remove, sublicense, sell, and export User Data for any of the following purposes: (a) any purpose, provided that we may only use Personal Information contained in User Data in compliance with our Privacy Policy and Applicable Law; and (b) aggregating, collecting, compiling, or creating Aggregated Data. Under this subsection, you grant us the right and license to monetize User Data and you are not entitled to any payments related to our rights and license to User Data. We own all Aggregated Data. To the extent that we require further rights, you assign us all right, title, and interest you may have, if any, to Aggregated Data.
3.3 Our rights to Feedback; limits on your use of Feedback. We encourage you to submit Feedback to us. If you provide us with Feedback via the Services or any other method, you grant us an exclusive, royalty-free, perpetual, irrevocable, transferable, and sublicensable worldwide right and license to access, store, process, use, copy, record, modify, make derivative works from, translate, display, publicly perform, broadcast, transmit, publish, distribute, disclose, transfer, remove, sublicense, sell, and export Feedback provided by you, in any form or medium, without restriction. You are prohibited from reposting, republishing, or redistributing Feedback. We have the right, but do not assume any responsibility, to review, screen, or approve Feedback. We have no obligation to keep Feedback confidential, to pay any compensation for Feedback, or to respond to any Feedback. You are solely responsible for the accuracy and legality of any Feedback you make. We take no responsibility and assume no liability for any Feedback posted or transmitted by you or a third party.
4.1 Your permitted use. The Services are available in the United States only. You must be 18 years of age or older to create an account or use the Services. The Services are intended solely for personal, non-commercial use. You represent that you are 18 years of age or older and you will only use the Services in the United States for your personal, non-commercial use. You must comply with all of the terms and conditions contained in these Terms of Service while you access or use the Services.
4.2 Your account and related responsibilities. You are required to create an account with us to access certain features of the Services. You must use your true identity in connection with registration, access, and use of your account and the Services. You represent and warrant that all information you provide or make available to us is true and complete and you will update such information to ensure that it is true and complete at all times.
a. Security of your account. Your account is only available to you; you must not allow any other person to access or use your account. You must have unique access credentials to your account (for example, username and password). You may not share access credentials with another person. You are responsible for maintaining the confidentiality of your access credentials and your account. You agree to use prudent and reasonable efforts to prevent unauthorized access to or use of your account. You must notify us immediately of any unauthorized access to or use of your access credentials or your account of which you become aware. We have no liability to you for any unauthorized access to or use of your access credentials or your account caused by your acts, omissions, or breach of these Terms of Service.
b. Backups. You are solely responsible for backing up your User Data on a regular basis and taking appropriate steps to safeguard and ensure the integrity of your User Data. We are not responsible for any backup, recovery, or other steps to ensure User Data is recoverable in the event of a data loss. We expressly disclaim any obligations with respect to storage of User Data.
4.3 Information you provide to us.
a. Your responsibility for User Data. You are responsible and liable for all User Data that you provide, maintain, or make available through the Services, including the accuracy, quality, integrity, legality, reliability, and appropriateness of all such User Data, and any harm resulting from such User Data. You must ensure that the User Data you provide, maintain, or make available through the Services will not violate Applicable Law or the rights of other users or third parties, including intellectual property rights and privacy rights. We do not assume any responsibility to review, screen, or approve User Data.
b. Your representations and warranties regarding User Data. You represent and warrant that, with respect to User Data that you provide, maintain, or make available on the Services: (i) the User Data is accurate, current, and complete; (ii) you have created or obtained the User Data lawfully and the User Data does not and will not violate any Applicable Law or any third party’s rights, including privacy rights or intellectual property rights; (iii) you have all rights necessary to grant all rights and licenses to the User Data that are granted to us in these Terms of Service; (iv) you have fully complied with any third party licenses to the User Data; (v) you have complied with all Applicable Law, provided all applicable notices, and received the proper authority or consent to allow us to collect and use the User Data as provided in these Terms of Service; (vi) we may exercise the rights in the User Data granted to us in these Terms of Service without liability or cost to any third party; and (vii) the User Data complies with the terms of these Terms of Service.
4.4 Your compliance with law. You are solely responsible and liable for compliance with all Applicable Law related to your use of the Services. We cooperate with governmental authorities, law enforcement, and private parties to enforce and comply with Applicable Law or the legal rights of any person. You agree to fully cooperate with us and that we may disclose any information about you to: respond to claims, legal process (including subpoenas), and investigations; prevent or stop any prohibited conduct under these Terms of Use; or otherwise enforce or comply with Applicable Law or the legal rights of any person. The information we may disclose may include, but is not limited to, information regarding you, your account, your use of the Services, or your transactions made through or in connection with the Services.
4.5 Prohibited uses of the Kernel Property (which includes the Services). You must not do, or attempt to do, any of the following: (a) decompile, disassemble, decrypt, or reverse engineer the Kernel Property, or attempt to obtain or perceive the source code from which any component of the Kernel Property is compiled or interpreted; (b) duplicate or make any modification, adaptation, improvement, enhancement, translation, derivative work, service, or product from the Kernel Property or any component of the Kernel Property; (c) license, sublicense, lease, resell, or transfer any of the Kernel Property to a third party or allow any third party to gain access to the Kernel Property; (d) access the Kernel Property if you are, or are acting on behalf of, a competitor of Kernel or for a competitive purpose, or provide any Kernel Property to any competitor of Kernel; (e) remove or alter any copyright, trademark, or other proprietary notices on the Kernel Property; (f) transmit material containing viruses, malware, or other harmful or deleterious computer code, files, scripts, agents, or programs through the Kernel Property; (g) interfere with or disrupt the integrity or performance of the Kernel Property; (h) attempt to bypass, exploit, defeat, or disable limitations or restrictions placed on the Kernel Property; (i) conduct any denial of service (DoS) attack on the Kernel Property or otherwise attempt to disrupt, disable, or overload the Kernel Property; (j) attempt to gain access to the Kernel Property by automated means, such as bots; (k) attempt to gain unauthorized access to the Kernel Property or the computer systems or networks related to the Kernel Property; (l) create a false identity or attempt to mislead others as to your identity or the identity of the sender or the origin of any data or communications; (m) use the Kernel Property to violate any Applicable Law or rights of others; or (n) interfere with another person’s use and enjoyment of the Kernel Property.
4.6 No Sanctions List. You represent and warrant that you are not on any government prohibited, denied or unverified-party, sanctions, debarment, or exclusion list or export-controlled related restricted party list, including OFAC (collectively, “Sanctions Lists”). If you become placed on any Sanctions List, you will notify us immediately and discontinue your use of the Services.
4.7 Third-Party connections. The Services may include links, integrations, or connections to third-party websites, applications, or services. This inclusion does not imply review or endorsement by us; you proceed at your own risk to a third-party website, application, or service. We do not warrant, and are not responsible for, the services, products, statements, or claims made by or about a third party, or the actions or omissions of any third-party. You must review and comply with any third-party terms of service or other provisions when accessing or using such resources.
4.8 Changes to the Services. You acknowledge that the Services, including any feature, may be updated, removed or otherwise be subject to change in our sole discretion and without notice to you. You agree that we will not be liable to you or any third party for any change, suspension, or discontinuance of the Services or any related feature. We will not materially decrease the specific Services ordered by you, except as otherwise permitted by these Terms of Service.
5.1 Subscriptions.
a. Subscription orders and auto-renewal. You may order a subscription for certain of the Services, for example counseling services, through the Services interface. Subscriptions commence when we make the ordered Services available to you and continue for the term specified in the Services check-out interface (“Initial Term”). Subscriptions automatically renew for a term equal to the length of the Initial Term (each, a “Renewal Term”) upon the end of each Initial Term and Renewal Term.
b. Subscription cancellation. You may cancel the automatic renewal of your subscription at any time by sending us a written notice to hello@heykernel.com; your cancellation will be effective at the end of the current Initial Term or Renewal Term, as applicable. If you cancel your subscription, you must still pay all fees, taxes, and other charges for the current Initial Term or Renewal Term, as applicable, and we will continue to make the Services available to you for such term.
5.2 Payments.
a. Fees, taxes, and payments. You agree to pay the fees for the Services ordered, taxes, and other charges as stated in the Services interface at checkout. The fees stated in the Services interface are exclusive of taxes. You agree to pay all sales, use, and other taxes and fees imposed by governmental authorities on our provision of the Services to you (other than taxes based on our net income). Fees, taxes, and other charges are billed and must be paid in US dollars. Payments are due in full, in advance on the start date of the subscription or other Services ordered. Payments are non-refundable.
b. Late payments. If we provide you with a payment plan at checkout and you miss a payment or make a late payment, the balance of the fees, taxes, and charges for the Services must be paid in full immediately (including for any subscription, for the entire current Initial Term or Renewal Term, as applicable). Late payments will bear interest at the lesser of (i) 1.5% per month calculated and compounded monthly or (ii) the highest rate permissible under Applicable Law, except for payments that are properly disputed.
c. Payment processor. If we process your payments using a third-party payment processor, such payments will be governed by the third-party payment processor’s terms of use and privacy policy.
5.3 Payment disputes. You must notify us in writing within 60 days of the date of your payment if you dispute any fees, taxes, or other charges in such payment. Unless otherwise required by Applicable Law, you cannot dispute a payment more than 60 days after the date of the applicable payment.
6.1 Your consent to electronic communications and signatures. We may need to provide you with certain communications, notices, agreements or disclosures (“Communications”) in writing regarding the Services. You agree and consent to receive Communications electronically from us, our affiliates, and our third-party service providers, rather than in paper form, and to the use of electronic signatures in our relationship with you (collectively, “E-Communications Consent”). You also acknowledge and agree that you have the ability to receive and sign Communications electronically. You should maintain copies of electronic Communications from us by printing a paper copy or saving an electronic copy. To withdraw your consent, see “Your Communications Opt-Out Rights” below. If you choose to withdraw your consent, we may terminate your access to the Services.
6.2 Your consent to marketing communications. You agree and consent to receive marketing and other promotional communications from us, our affiliates, our third-party service providers, and other third parties through direct mail, email, or electronically through the Services. We and third parties may collect additional marketing communications consents from you, which will be considered additional consents (and not replacements for this consent). You may withdraw your consent to some of these marketing communications, see “Your Communications Opt-Out Rights” below for more details. If you choose to withdraw your consent, you will continue to receive transaction and service-related communications.
6.3 Your consent to Mobile Services and text message communications. The Services may be made available via a mobile device (the “Mobile Services”). Not all Mobile Services may work with all carriers or devices. By using the Mobile Services or providing your mobile number to us, you agree that we, and third parties on our behalf, may communicate with you about matters related to your account or your use of the Services by SMS, MMS, text message or other electronic means to your mobile device or number provided and that certain information about your usage of the Mobile Services may be communicated to us. In addition, if you select the text message opt-in through the Services, you consent to receive SMS, MMS, text messages and other electronic communications to your mobile device or number provided, from us, or from third parties on our behalf, for marketing and promotional purposes and you consent to the use of automatic telephone dialing systems to send such communications to you. You understand that you do not have to consent to receive text messages for marketing purposes in order to use the Services, and such consent is not a condition of any use of the Services. Standard charges, message and data rates and other fees may apply. In the event that you change or deactivate your mobile number, you agree to promptly update your account information. To withdraw your consent to text message communications for marketing purposes, see “Your Communications Opt-Out Rights” below. If you chose to withdraw your consent, you will still receive text messages for informational and transactional purposes, including automated text messages related to the security of your account.
6.4 Your communications opt-out rights. You may opt-out of the following types of communications by sending a written notice to hello@heykernel.com and specifying the type of opt-out request in the notice. You may continue to receive communications from us while we process your request. You will continue to receive transaction and service-related communications even after your request is processed.
a. Opt out of E-Communications consent. You may withdraw your consent to receive and sign Communications electronically (your E-Communications Consent). If you choose to withdraw this consent, we may terminate your access to the Services.
b. Opt out of marketing emails or direct mail from us. You may withdraw your consent to receive marketing emails or direct mail from us. In addition to sending a notice to the email address above, you may opt out of marketing emails by following the unsubscribe instructions in the emails.
c. Opt out of marketing text messages from us. You may withdraw your consent to receive marketing text messages from us. In addition to sending a notice to the email address above, you may opt out of marketing text messages by texting STOP in reply to any marketing text messages you receive from us.
Our Personal Information Disclosures and Uses. You agree that we may use, disclose, and maintain Personal Information according to our Privacy Policy. You understand and agree that anonymized or deidentified data is not Personal Information and restrictions on our use of Personal Information contained in our Privacy Policy do not apply to such anonymized or deidentified data even if such data was created or derived from Personal Information.
8.1 Definition of Kernel Confidential Information. “Kernel Confidential Information” means all information we disclose to you that is designated by us as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Any feature or function of the Services or the Kernel Content that has not been made public is considered Kernel Confidential Information. However, Kernel Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to us, (b) was known to you prior to our disclosure without breach of any obligation owed to us, (c) you received from a third party without breach of any obligation owed to us or (d) was independently developed by you.
8.2 Your responsibilities for Kernel Confidential Information. You must not (a) use any Kernel Confidential Information for any purpose outside the permitted scope of these Terms of Service, or (b) disclose Kernel Confidential Information to any person, other than your agents who require access for permitted purposes consistent with these Terms of Service and are subject to confidentiality obligations at least as restrictive as the confidentiality obligations in these Terms of Service. Upon the termination of the Services, or at our earlier request, you must promptly return to us all originals and copies, whether in written, electronic or other form or media, of the Kernel Confidential Information, or, at our option, destroy all such originals and copies and certify in writing to us that the Kernel Confidential Information has been destroyed.
Your indemnification of Kernel. You agree to defend, indemnify, and hold us, our affiliates, and our third-party providers, licensors, and suppliers, along with our and their respective directors, officers, employees, and agents, harmless from any claims, damages, losses, or costs (including reasonable attorneys’ fees and expenses) arising out of your use of the Services or the Kernel Content, your breach of these Terms of Service, or your violation of any Applicable Law or the rights of any third party.
10.1 DISCLAIMER OF WARRANTIES. YOU ARE SOLELY RESPONSIBLE FOR AND ASSUME ALL RISKS RELATED TO YOUR USE OF THE SERVICES. THE SERVICES, THE KERNEL CONTENT, AND ANY OTHER CONTENT, DATA, SOFTWARE, PRODUCTS, AND SERVICES PROVIDED IN CONNECTION WITH THE SERVICES ARE PROVIDED “AS IS,” “WITH ALL FAULTS,” AND “AS AVAILABLE” AND WE EXPRESSLY DISCLAIM ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED, OR STATUTORY. We expressly disclaim any implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. We expressly disclaim any warranties of system integration, non-interference, absence of any defects (whether latent or patent), and security of data. We do not warrant or make any representations concerning the accuracy, completeness, quality, usability, or reliability of the Services, the Kernel Content, or any other content found on or linked to the Services. We expressly disclaim any warranty related to third-party websites or other third-party content that may be accessed through the Services. We make no warranty or representation on the basis of trade usage, course of dealing, or course of performance. We do not warrant or represent that the Services, the Kernel Content, or any other content, data, software, products, or services provided in connection with the Services will meet your requirements, comply with Applicable Law, generate enforceable obligations, be uninterrupted, error-free or free of bugs, viruses, or malware. We do not represent or warrant that any errors or defects will be corrected. You acknowledge that our obligations under these Terms of Service are for your benefit of only. The Services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. We are not responsible for any delays, delivery failures, or other damages resulting from such problems.
10.2 APPLICABILITY OF LIMITATIONS OF LIABILITY. ALL OF THE LIMITATIONS OF LIABILITY IN THIS SECTION 10, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, APPLY (a) regardless of the theory of liability, whether in contract, tort, or otherwise; (b) regardless of the cause of the damages, including negligence by us or our third-party providers, licensors, or suppliers; (c) even if we have been advised of the possibility of such damages; (d) without regard to whether other provisions of these Terms of Service have been breached or any remedies have failed their essential purpose; and (e) to any claims you may bring against any third party to the extent that we would be required to indemnify that third party for such claim.
10.3 WE HAVE NO LIABILITY FOR CERTAIN TYPES OF DAMAGES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO LIMIT CLAIMS FOR DAMAGES (OR OTHER MONETARY RELIEF) AGAINST US TO DIRECT AND ACTUAL DAMAGES. THIS MEANS THAT YOU MUST NOT SEEK ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, TREBLE, OR PUNITIVE DAMAGES FROM US. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE HAVE NO LIABILITY FOR DAMAGES FOR: (a) the use or inability to use the Services or Kernel Content; (b) unauthorized access to, loss, or theft of your account, information, or data; (c) lost profits, loss of goodwill, costs of delay, failure of delivery, or business interruption; (d) costs of procurement of substitute goods, services, or technology; or (e) personal injury or death. We have no liabilities to third parties arising out of your access to or use of the Services.
10.4 WE ARE NOT LIABLE FOR DAMAGES OUT OF OUR CONTROL. You agree that we are not liable for delays, problems, or damages caused by you or a third party, by any act of nature, by any act beyond our reasonable control (for example, war, terrorist acts, labor disputes, government actions, pandemics), or by any criminal activity by someone unrelated to us.
10.5 YOU AGREE TO LIMIT THE AMOUNT OF DAMAGES PAYABLE BY US. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL AGGREGATE LIABILITY OF KERNEL, OUR AFFILIATES, AND OUR THIRD-PARTY PROVIDERS, LICENSORS, OR SUPPLIERS ARISING OR RELATING TO OUR SERVICES, THE KERNEL CONTENT, OUR PRIVACY POLICY, OR THESE TERMS OF SERVICE IS LIMITED TO THE FEES THAT YOU PAID TO USE THE RELEVANT SERVICES IN THE 12 MONTHS BEFORE OUR BREACH OR THE FIRST INCIDENT GIVING RISE TO OUR LIABILITY; OR, IF NO FEES WERE PAID IN SUCH PERIOD, $100.
10.6 YOU AND WE AGREE TO LIMIT THE DEADLINE TO BRING CLAIMS. To the fullest extent permitted by Applicable Law, you and we each agree that all claims related to these Terms of Service must be brought within 2 years of the date the claim arises (even if Applicable Law provides for a longer statute of limitations).
10.7 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN DAMAGES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICES OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICES.
10.8 YOU AND WE WOULD NOT HAVE ENTERED INTO THESE TERMS OF SERVICE WITHOUT THESE LIMITATIONS OF LIABILITY. The limitations of liability in this Section 10 constitute an important part of these Terms of Service and are among the reasons you and we are willing to enter into these Terms of Service. Without these limitations of liability, the provisions of these Terms of Service, including but not limited to any economic terms, would be substantially different.
11.1 Summary of dispute resolution procedures. By entering into these Terms of Service, you are agreeing to resolve any dispute with us informally, and, if it cannot be resolved informally, through binding arbitration (unless you opt out) and to waive your rights to participate in any class action suit (unless you opt out) or to a jury trial. If we are unable to resolve your claim informally, any arbitration or court proceedings, as applicable, must be brought in New York County, New York or the jurisdiction in which your address in our records is located (but not outside of the United States).
11.2 Good faith negotiation of disputes. For any and all disputes or claims you have, you must first give us an opportunity to resolve your claim by sending a written description of your claim to hello@heykernel.com. You and we each agree to negotiate your claim in good faith. You agree that you may not commence any arbitration or court proceeding unless you and we are unable to resolve the claim within 60 days after we receive your claim description and you have made a good faith effort to resolve your claim directly with us during that time.
11.3 Binding arbitration. YOU AND WE EACH AGREE THAT, EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION 11, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL CLAIMS OR DISPUTES IN ANY WAY RELATED TO OR CONCERNING THESE TERMS OF SERVICE, OUR PRIVACY POLICY, THE SERVICES, OR THE KERNEL CONTENT MUST BE RESOLVED BY BINDING ARBITRATION. This includes any claims against other parties relating to the Services or Kernel Content provided to you (such as our third-party providers, licensors, and suppliers) whenever you also assert claims against us in the same proceeding. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. THE ARBITRATOR MUST FOLLOW THESE TERMS OF SERVICE AND CAN AWARD THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING ATTORNEYS’ FEES).
11.4 Your choice to opt-out of arbitration. Notwithstanding the above, YOU MAY CHOOSE TO PURSUE YOUR CLAIM IN COURT AND NOT BY ARBITRATION IF YOU OPT OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE YOU CREATED YOUR ACCOUNT (OR FIRST ACCESSED THE SERVICES, IF YOU HAVE NOT CREATED AN ACCOUNT) (the “Opt Out Deadline”). You may opt out of these arbitration procedures by sending an email to hello@heykernel.com and clearly stating that you wish to opt out of the arbitration procedures in the Terms of Service. Any opt-out received after the Opt Out Deadline is not valid and you must pursue your claim in arbitration.
11.5 Arbitration procedures. If we are unable to resolve your claim within 60 days despite those good faith efforts, then either you or we may start arbitration or court proceedings. To begin arbitration, you must send a written letter requesting arbitration and describing your claim to our registered agent at Kernel Intelligence, Inc. c/o The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801 and to the American Arbitration Association (“AAA”). You may download or copy a form of notice and a form to initiate arbitration at www.adr.org or by calling 1-800-778-7879. The arbitration of all disputes must be administered by the AAA under its Consumer Arbitration Rules in effect at the time the arbitration is commenced, except to the extent any of those rules conflicts with these Terms of Service, in which case these Terms of Service must govern. The AAA rules are available at www.adr.org. The arbitration of all disputes must be conducted by a single arbitrator, who must be selected using the following procedure: (a) the AAA must send the parties a list of five candidates; (b) if the parties cannot agree on an arbitrator from that list, each party must return its list to the AAA within 10 days, striking up to two candidates, and ranking the remaining candidates in order of preference; (c) the AAA must appoint as arbitrator the candidate with the highest aggregate ranking; and (d) if for any reason the appointment cannot be made according to this procedure, the AAA may exercise its discretion in appointing the arbitrator. Payment of all filing, administration, and arbitrator fees must be governed by the AAA rules. If you initiate the arbitration, you are required to pay AAA’s initial filing fee; but we will reimburse you for this filing fee at the conclusion of the arbitration to the extent it exceeds the fee for filing a complaint in a federal or state court in your county of residence or in New York County (unless the arbitrator finds that either the substance of your claim or the relief sought in your demand for arbitration was frivolous or was brought for an improper purpose). An arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory relief and attorneys’ fees. In addition, for claims under $75,000 as to which you provided notice and negotiated in good faith as required above before initiating arbitration, if the arbitrator finds that you are the prevailing party in the arbitration, you are entitled to recover reasonable attorneys’ fees and costs. If we are the prevailing party, we may seek reimbursement of reasonable attorneys’ fees and costs in arbitration unless prohibited under Applicable Law.
11.6 Class action waiver. YOU AND WE EACH AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, MUST BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS, REPRESENTATIVE, MASS, OR CONSOLIDATED ACTION. If we believe that any claim you have filed in arbitration or in court is inconsistent with this limitation, then you agree that we may seek an order from a court determining whether your claim is within the scope of this class action waiver. If a court or arbitrator determines in an action between you and us that any part of this class action waiver is unenforceable with respect to any claim, this class action waiver will not apply to that claim, but will still apply to any and all other claims that you or we may assert in that or any other action.
11.7 Your choice to opt-out of the class action waiver. Notwithstanding the above, YOU MAY OPT-OUT OF THE CLASS ACTION WAIVER WITHIN 30 DAYS FROM THE DATE YOU CREATED YOUR ACCOUNT (OR FIRST ACCESSED THE SERVICES, IF YOU HAVE NOT CREATED AN ACCOUNT) (the “Opt Out Deadline”). You may opt out of the class action waiver by sending an email to hello@heykernel.com and clearly stating that you wish to opt out of the class action waiver in the Terms of Service. Any opt-out received after the Opt Out Deadline is not valid and you are prohibited from pursuing your claim via a class action. You cannot be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with these opt out requirements.
11.8 Injunctive relief. You and we acknowledge and agree that a breach by you of your responsibilities under Sections 4 or 8, could cause us irreparable harm for which monetary damages would not be an adequate remedy. You and we agree that, in the event of such breach or threatened breach, we must be entitled to equitable relief, including, without limitation, a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. The binding arbitration provision of Section 11.3 does not apply to requests for injunctive relief under this Section 11.8, which may be brought in arbitration or court proceedings. These remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
11.9 Our collection actions. You and we agree that we may pursue claims to collect amounts due in connection with these Terms if Service in court proceedings or arbitration, at our sole option. The binding arbitration provision of Section 11.3 shall not apply to actions brought by us to collect amounts due in connection with these Terms of Service.
11.10 Jury trial waiver. If a claim proceeds in court rather than through arbitration, YOU AND WE EACH WAIVE ANY RIGHT TO A JURY TRIAL.
12.1 Term. These Terms of Service commence upon your first use of the Services and continue until you no longer access or use any of the Services.
12.2 Termination or suspension of your access to Services; removal of User Data.
a. Our termination, suspension, or removal for cause. We may terminate or suspend your account, terminate or suspend your access to the Services, or remove any User Data, immediately and without notice if we, in good faith, believe that: (a) you have materially breached any provision of these Terms of Service; (b) you are using the Services in a manner that threatens the security, integrity, or reliability of the Services; (c) there has been unauthorized access or fraud related to your account or the Services; (d) information in your account or provided in connection with the Services is untrue or inaccurate; or (e) the provision of the Services (or a portion thereof) may expose us or you to legal, regulatory, or compliance risk.
b. Our termination for convenience. We may terminate any of your subscriptions or access to your account or the Services at any time and for any reason in our sole discretion. If we terminate Services you ordered through a paid subscription prior to the end of the current subscription Initial Term or Renewal Term, as applicable, for a reason other than as provided in Section 12.2(a) above, we will refund you any pre-paid fees for the remainder of your unused subscription term.
c. Your termination for material breach. You may terminate the Services provided to you in the event that we commit any material breach of these Terms of Service and fail to remedy such breach within 30 days after receiving written notice from you of such breach.
12.3 Effect of Termination. Upon termination of any of the Services, you will immediately discontinue access to and use of the terminated Services. We have no obligation to maintain or provide access to any User Data and we have the right to delete all information and data related to your account and use of the Services, including your User Data, immediately upon termination and will incur no liability for such deletion. Additionally, you may request that we delete all User Data upon the termination of the Services and certify in writing that such User Data has been deleted. If you request a copy of your User Data, we may honor or refuse your request in our sole discretion and may charge a fee to provide you with a copy of your User Data. Notwithstanding anything herein to the contrary, we may retain a copy of your User Data and the other information and data related to your account, as we deem reasonably necessary or advisable for our record retention, as required by Applicable Law, legal process or governmental request, or to enforce or defend our rights or carry out our obligations, subject to any restrictions on use of such User Data in these Terms of Service.
12.4 Survival. All provisions of these Terms of Service that are intended to survive or that must survive in order to give effect to its meaning (including, but not limited to, the provisions of Sections 3, 4.6, 6, 7, 8, 9, 10, 11, 12 and 13) will survive the termination of the Services.
13.1 Choice of law. These Terms of Service are governed by the laws of the State of New York, without regard to any conflicts of laws rules. Arbitration or court proceedings must be brought in New York County, New York or the state or jurisdiction in which your address in our records is located, but not outside of the United States.
13.2 Notices. You may deliver notices to us by email to hello@heykernel.com. If you are commencing an arbitration or legal proceeding against us, you must send notice of the arbitration or legal proceeding to our registered agent at Kernel Intelligence, Inc. c/o The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801. We may deliver notices to you via email, mail, or electronic means using the contact information in your account or by posting the notice on the Services. Electronic notices are considered delivered when sent or posted. Postal notices are considered delivered 3 days after mailing. Notices delivered by a nationally recognized courier (for example, UPS and FedEx) are considered delivered when received.
13.3 Services materials. The information and materials on our Services, including the Kernel Content, may contain technical, typographical, photographic, or other errors. We do not warrant that the Kernel Content or any information or materials on our Services are accurate, complete, or current. We may make changes to the Kernel Content and information and materials on our Services at any time without notice, but we make no commitment to do so.
13.4 Third-Party beneficiaries. Our third-party providers, licensors, and suppliers and our affiliates are considered to be third-party beneficiaries of these Terms of Service solely to the extent necessary for them to enforce any protections afforded them by these Terms of Service, except as otherwise provided in these Terms of Service. There are no other third-party beneficiaries to these Terms of Service. All rights and benefits of these Terms of Service from us are intended solely for you.
13.5 Assignment. You and we are prohibited from assigning these Terms of Service to a third party without the prior written consent of the other party to these Terms of Service except as provided in the next sentence. We may assign these Terms of Service, and/or our rights and obligations hereunder, in whole or part, without your consent in connection with a merger, acquisition, equity or debt financing, corporate reorganization, or sale of all or a majority of our assets or to any of our affiliates. Any permitted assignment will not relieve the assigning party of its obligations under these Terms of Service unless agreed in writing by the other party. Subject to the foregoing restrictions on assignment, these Terms of Service will bind and inure to the benefit of your and our respective successors and permitted assigns.
13.6 Amendment. We have the sole discretion to amend these Terms of Service at our discretion and at any time. When we do, we will post the revised terms in the Services with a new “Last Updated” date. Your continued use of the Services following the posting of changes constitutes your acceptance of such changes and the Terms of Service as amended. We encourage you to visit the Services regularly for any changes.
13.7 Waiver. You and we cannot waive any provision of these Terms of Service except in a writing signed by you and us. Our failure to insist on or enforce strict performance of any provision of these Terms of Service or any of our rights is not a waiver of any provision or right.
13.8 Severability. If any part of these Terms of Service is held invalid or unenforceable, that part may be severed from the Terms of Service to the extent necessary to cure such invalidity or unenforceability. The remainder of the Terms of Service will remain valid and enforceable.
13.9 Entire Agreement. These Terms of Service are the entire agreement between you and us regarding the rights you have with respect to the Services, except as provided by Applicable Law, and you cannot rely on any other documents, statements in our Services, or statements by any of our representatives or agents.
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