Please read these Exceeds Services Terms of Service (these “Terms”) and our Privacy Notice (“Privacy Notice”) carefully because they govern your access to, and use of, the Exceeds Services (defined below) offered by Exceeds AI Corporation (“Exceeds,” “we,” “our,” or “us”) and downloaded and installed via the https://www.exceeds.ai/ website (or subdomain thereof) (the “Site”),  or otherwise provided by Exceeds. For purposes of these Terms, “you” and “your” refer to the individual or entity using the Exceeds Services (and thereby entering into these Terms).

IMPORTANT NOTICE REGARDING ARBITRATION FOR U.S. CUSTOMERS: WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND EXCEEDS THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 19 (DISPUTE RESOLUTION) BELOW FOR DETAILS REGARDING ARBITRATION.

1.       Description of the Exceeds Services. Exceeds offers a software product (which, for clarity, includes downloadable and installable software, as well as online services hosted by Exceeds or its third-party services providers), available via the Site (or otherwise provided by Exceeds), known as the “Exceeds Services,” which is designed to (i) track (a) software code that you write, review, and/or modify and related support tickets and records, meeting transcripts, and other text, images, and information in connection therewith (collectively, “Your Code and Related Information”), and (b) software code written or modified by, support tickets and records created by, meeting transcripts with, and related text, images, and information by or with (“Team Code and Related Information,” and together with Your Code and Related Information, “Code and Related Information”) other users who have access to such code, tickets, meetings, and related information (“Team-members”) through permissions you granted via your account with GitHub, Inc. where such code is stored (“GitHub Account”), (ii) analyze technical design specifications and other documentation you upload (“Your Design Documents”), (iii) generate reports, summarizes, proposed tasks, support tickets and records, performance reviews, and related outputs and information (including through the use of third-party artificial intelligence technology, such as report and summary processing via large language models) both (a) of you, related to Your Code and Related Information (“Your Report(s)”), and/or (b) of your Team-members, related to Team Code and Related Information (“Team-member Report(s),” and together with Your Reports, “Reports”), in each case regarding such code writing, review, and modification, or otherwise an analysis in connection with Doe and Related Information (such software product, the “Exceeds Services”). Additionally, the Exceeds Services may allow users to invite Team-members or others within the same organization (e.g., your employer or other business) to (1) view and access Your Reports, and (2) collaborate and update software code and related information together utilizing the Exceeds Services (an “Invitation”).

2.       Agreement to Terms. By downloading, accessing, and/or using The Exceeds Services, you agree to be bound by these Terms. If you do not agree to be bound by these Terms, do not download, access, or use the Exceeds Services. IF YOU ARE DOWNLOADING, ACCESSING, OR USING THE EXCEEDS SERVICES ON BEHALF OF A COMPANY (SUCH AS YOUR EMPLOYER) OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT (i) YOU HAVE THE AUTHORITY TO BIND THAT ENTITY TO THESE TERMS; (ii) EXCEPT TO THE EXTENT YOU ELECT FOR LOCAL AI PROCESSING (IF OFFERED VIA THE EXCEEDS SERVICES PURSUANT TO SECTION 11(b)), YOU HAVE ALL REQUIRED RIGHTS, PERMISSIONS, CONSENT, AND AUTHORITY FROM SUCH COMPANY (SUCH AS YOUR EMPLOYER) TO SHARE USER CONTENT WITH US AND OUR THIRD-PARTY ARTIFICAL INTELLIGENCE SERVICES PROVIDER(S) (“THIRD-PARTY AI PROVIDER(S)”) TO INGEST, ANALYZE, AND PROCESS USER CONTENT IN ORDER TO GENERATE REPORTS. IN THAT CASE, “YOU” AND “YOUR” WILL REFER TO THAT ENTITY.

3.       License to the Exceeds Services. Subject to your compliance with these Terms, Exceeds grants you a non-exclusive, non-transferable, non-sublicensable, limited license to use the Exceeds Services for your internal, non-commercial purposes to generate Reports using User Content. Notwithstanding the foregoing, you may not use the Exceeds Services in any manner which infringes a third-party’s intellectual property rights, privacy rights, or rights of publicity, or which violates law, or to develop or commercialize a product that could compete with the Exceeds Services or Exceeds.

4.       Privacy Notice. Please review our Privacy Notice, which also governs your use of the Exceeds Services, for information on how we collect, use and share personal information. We may use and/or process your personal information in accordance with our Privacy Notice. You agree that we, and third parties we work with, may collect communications, routing, addressing, signaling, and similar information transmitted by your use of the Exceeds Services.

5.       Changes to these Terms or the Exceeds Services. We may update these Terms from time to time in our sole discretion. If we do, we’ll let you know by posting the updated Terms via the Site or the Exceeds Services, and/or may also send other communications. It’s important that you review these Terms whenever we update them or you use the Exceeds Services. If you continue to use the Exceeds Services after we have posted updated Terms it means that you accept and agree to the changes. If you don’t agree to be bound by the changes, you may not use the Exceeds Services anymore. Because the Exceeds Services are evolving over time we may change or discontinue all or any part of the Exceeds Services, at any time and without notice, at our sole discretion.

6.       Who May Use the Exceeds Services. You may use the Exceeds Services only if you are capable of forming a binding contract with Exceeds, and not otherwise barred from using the Exceeds Services under applicable law.

7.       User Accounts. With regard to your GitHub Account, you are responsible for keeping your GitHub Account details and password confidential, and you will notify us right away of any unauthorized use. You’re responsible for all activities that occur under your GitHub Account.

8.       Fees. Certain features of the Exceeds Services are provided free of charge. However, Exceeds requires payment of a fee for use of certain features or functionality of the Exceeds Services (e.g., the ability for the Exceeds Services to analyze Team Code and Related Information and generate Team-member Reports), and if you wish to use such features or functionality, you agree to pay such fees. You may have the option of making a one-time payment (“One-Time Payment”) in exchange for tokens to utilize and enable certain features/functionality (consuming such tokens, or a portion thereof) (“Tokens”), or purchasing a subscription (“Subscription”) for Tokens or to enable the ability to use certain features/functionality, in each case as presented to you via the Exceeds Services.

(a)            General. Whether you make a One-Time Payment or purchase a Subscription (each, a “Transaction”), you expressly authorize us (or our third-party payment processor, such as Lemon Squeezy, LLC or otherwise) to charge you for such Transaction. We may ask you to supply additional information relevant to your Transaction, including your credit card number, the expiration date of your credit card and your email and postal addresses for billing and notification (such information, “Payment Information”). You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. When you initiate a Transaction, you authorize us to provide your Payment Information to third parties so we can complete your Transaction and to charge your payment method for the type of Transaction you have selected (plus any applicable taxes and other charges). You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Payment Information). By initiating a Transaction, you agree to the pricing, payment and billing policies applicable to such fees and charges, as posted or otherwise communicated to you. All payments for Transactions are non-refundable and non-transferable except as expressly provided in these Terms. All fees and applicable taxes, if any, are payable in United States dollars.

(b)            Subscriptions. If you purchase a Subscription, you will be charged the monthly Subscription fee, plus any applicable taxes, and other charges (“Subscription Fee”), at the beginning of your Subscription and each month thereafter, at the then-current Subscription Fee. BY PURCHASING A SUBSCRIPTION, YOU AUTHORIZE EXCEEDS TO INITIATE RECURRING NON-REFUNDABLE PAYMENTS AS SET FORTH BELOW. If you purchase a Subscription, we (or our third-party payment processor) will automatically charge you each month beginning on the commencement of your Subscription, using the Payment Information you have provided until you cancel your Subscription. Exceeds will send you a reminder with the then-current Subscription Fee in accordance with applicable law. By agreeing to these Terms and electing to purchase a Subscription, you acknowledge that your Subscription has recurring payment features and you accept responsibility for all recurring payment obligations prior to cancellation of your Subscription by you or Exceeds. Your Subscription continues until cancelled by you or we terminate your access to or use of the Services or Subscription in accordance with these Terms.

(c)            Cancelling One-Time Payment or Subscription. You may cancel a Transaction for a full refund within ten (10) calendar days of your initial purchase. AFTER THAT, YOUR PURCHASE IS FINAL AND YOU WILL NOT BE ABLE TO CANCEL THE PURCHASE AND/OR RECEIVE A REFUND OF YOUR ONE-TIME PAYMENT OR SUBSCRIPTION FEE AT ANY TIME. But if something unexpected happens in the course of completing a Transaction, we reserve the right to cancel your Transaction for any reason; if we cancel your Transaction we’ll refund any payment you have already remitted to us for such Transaction. Without limiting the foregoing, you may cancel your Subscription at any time, but please note that such cancellation will be effective at the end of the then-current Subscription period. EXCEPT AS SET FORTH ABOVE WITH RESPECT TO YOUR INITIAL SUBSCRIPTION PURCHASE, YOU WILL NOT RECEIVE A REFUND OF ANY PORTION OF THE SUBSCRIPTION FEE PAID FOR THE THEN CURRENT SUBSCRIPTION PERIOD AT THE TIME OF CANCELLATION. You may cancel your Subscription via the settings within the Exceeds Services or by following applicable cancellation instructions in an applicable email containing your receipt for your prior month’s Subscription. You will be responsible for all Subscription Fees (plus any applicable taxes and other charges) incurred for the then-current Subscription period. If you cancel, your right to use the Services will continue until the end of your then current Subscription period and will then terminate without further charges.

9.       Feedback. We appreciate feedback, comments, ideas, proposals and suggestions for improvements to the Exceeds Services (“Feedback”). If you choose to submit Feedback, you grant us a royalty free, worldwide license to use such Feedback without any restriction or compensation to you.

10.     Representations and Warranties. You are solely responsible for all User Content and you represent and warrant that (i) you have (and will have) all rights that are necessary to grant us the license rights in User Content under these Terms; and (ii) neither the User Content, nor your use and provision of User Content to be made available through the Exceeds Services (including without to a Third-Party AI Provider), nor any use of User Content by Exceeds on or through the Exceeds Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. Additionally, if your use of the Exceeds Services involves Team-members and/or review or analysis of Team Code and Related Information (which, for clarity, is a part of User Content), you represent and warrant that you have all required rights, permissions, consent, and authority from each Team-member to connect the Exceeds Services to your applicable GitHub Account and permit the Exceeds Services to analyze and review such Team Code and Related Information and generate Team-member Reports, and to otherwise use and Team Code and Related Information as contemplated by these Terms.

11.     Your Content.

(a)        User Content. Subject to your election for Local AI Processing (if offered to you via the Exceeds Services pursuant to Section 11(b)), the Exceeds Services monitors and tracks the creation and modification of Code and Related Information (including without limitation by you or Team-members) and ingests and analyzes Your Design Documents (collectively, together with Code and Related Information and Your Design Documents, but excluding Feedback, “User Content”). Reports generated for you will be deemed User Content for purposes of these Terms. Except for the limited express rights granted under these Terms, Exceeds does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have in User Content.

(b)        AI Processing; Local AI Processing. In order for our Third-Party AI Provider to generate Reports from User Content (such as Code and Related Information, and Your Design Documents), you may elect via the Exceeds Services to share User Content with the applicable Third-Party AI Provider (such as for processing to generate Reports) by utilizing the Third-Party Provider’s Application Programming Interface (API) key either (i) provided by Exceeds via the Exceeds Services (“Exceeds-provided Third-Party API Key”), or (ii) obtained yourself from the Third-Party AI Provider (“Your Third-Party API Key”). Alternatively, the Exceeds Services may offer you the ability to elect to run artificial intelligence technology locally on the computer with which the Exceeds Services is installed, (“Local AI Processing”) in order to process certain User Content to generate Reports. You hereby grant Exceeds the right (i) to access, use, and analyze User Content in order to generate Reports, (ii) if you elect to utilize an Exceeds-provided Third-Party API Key, to share User Content with the Third-Party AI Provider in order to generate Reports and for such Third-Party AI Provider’s trust and safety purposes in accordance with its third-party terms and conditions, (iii) if you elect to utilize Your Third-Party API Key, to share User Content with the Third-Party AI Provider in order to generate Reports; (iv) to use User Content to improve the inputs and outputs that Exceeds uses in connection with the Exceeds Services; and (v) to host and store (itself and/or with its third-party hosted services providers) User Content in connection with each of the foregoing purposes in Subsections (i)-(iv) unless you opt-out using the standard functionality of the Exceeds Services. For clarity, if Local AI Processing is offered to you, and you elect for it (and not to use an Exceeds-provided Third-Party API Key or Your Third-Party API Key), then the Exceeds Services will not disclose User Content to a Third-Party AI Provider.

(c)        Invitations and Report Access. By submitting an Invitation, you (i) acknowledge and agree that the Team-member or other whom you invite will have access to Your Reports and Your Code and Related Information, and will be able to modify and update Your Code and Related Information and any applicable Team Code and Related Information, and (ii) grant such Team-member or other third-party to whom you send an Invitation the right to access Your Report and modify such Code and Related Information.

12.     Monitoring of the Exceeds Services. Exceeds is not obligated to monitor access to or use of the Exceeds Services or to review or edit any content. However, we have the right to do so for the purpose of operating the Exceeds Services, to ensure compliance with these Terms and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any content, including User Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider it objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Exceeds Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.

13.     Third Party Services. The Exceeds Services may allow you to access, interface, and/or interact with various third-party websites, services (including without limitation services provided by a Third-Party AI Provider), products, technologies, and content (“Third-Party Services”). Such Third-Party Services may be embedded in the Exceeds Services, however, Exceeds does not provide the Third-Party Services and is not responsible for any compatibility issues, errors, bugs in, or any data loss resulting from or due to, the Third-Party Services. You acknowledge and agree that you are solely responsible for, and assume all risk arising from, your use of all Third-Party Services, AND EXCEEDS HEREBY DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY ARISING FROM OR IN CONNECTION WITH THE THIRD-PARTY SERVICES.

14.     Termination. We may suspend or terminate your access to and use of the Exceeds Services, including suspending access to or terminating your account, at our sole discretion, at any time and without notice to you. You may disconnect the Exceeds Services from your locally-stored copy of Your Code and Related Information which the Exceeds Services accesses and synchronizes with at any time by disconnecting the applicable data repository of such data via the settings within the Exceeds Services. Upon any termination of these Terms or discontinuation of the Exceeds Services, the following Sections will survive: 8 (for fees which accrued prior to termination), 9, 10, 12, 14, 15, 16, 17, 18, 19, and 20.

15.     Disclaimers.

(a)            General. THE EXCEEDS SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. FURTHER, WE EXPLICITLY DISCLAIM ALL LIABILITY AND RESPONSIBILITY FOR OR IN CONNECTION WITH OUR THIRD PARTY SERVICES AND HOSTING PROVIDERS. We make no warranty that the Exceeds Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any information or content on the Exceeds Services. We hereby disclaim any and all liability or responsibility for any claims, losses, or damage in connection with User Content, your disclosure of User Content to Exceeds, your or Exceeds’ disclosure of Your Code and Related Information to Third-Party AI Providers, or any unauthorized access to User Content or otherwise.

(b)            AI/ML. DUE TO THE NATURE OF MACHINE LEARNING AND ARTIFICIAL INTELLIGENCE, ANY OUTPUT (INCLUDING BUT NOT LIMITED TO REPORTS) MAY NOT BE UNIQUE AND REVIEWC COPILOT MAY GENERATE THE SAME OR SIMILAR OUTPUT FOR YOU OR A THIRD PARTY. GIVEN THE PROBABILISTIC NATURE OF MACHINE LEARNING, THE EXCEEDS SERVICES MAY IN SOME SITUATIONS PRODUCE OUTPUT THAT IS INACCURATE, INCORRECT, OFFENSIVE OR OTHERWISE UNDESIRABLE. THE ACCURACY, QUALITY AND COMPLIANCE WITH APPLICABLE LAW OF THE OUTPUT IS DEPENDENT UPON AND COMMENSURATE WITH THAT OF  USER CONTENT INPUTTED INTO, OR OTHERWISE COLLECTED OR ANALYZED BY, THE EXCEEDS SERVICES, AND YOUR COMPLIANCE WITH THESE TERMS, AND NOTWITHSTANDING ANYTHING ELSE SET OUT HEREIN, EXCEEDS  WILL NOT HAVE ANY LIABILITY OR RESPONSIBILITY TO YOU OR ANY OTHER PERSON OR ENTITY FOR OR IN CONNECTION WITH ANY USER CONTENT OR OUTPUT, INCLUDING WITHOUT LIMITATION ANY LOSS OR DAMAGES RELATING TO OR ARISING FROM USER CONTENT, OUTPUT, OR THEIR USE. YOU SHALL EVALUATE THE CONTENT, NATURE, TONE AND ACCURACY OF ANY OUTPUT AS APPROPRIATE FOR THE APPLICABLE USE CASE, INCLUDING BY USING HUMAN REVIEW OF THE OUTPUT. FOR PURPOSES OF THESE TERMS, “OUTPUT” MEANS REPORTS AND ANY OTHER DATA, CONTENT, INFORMATION, RESPONSES, OR SUGGESTIONS GENERATED BY THE EXCEEDS SERVICES IN CONNECTION WITH YOUR USE THEREOF.

(c)            Certain Limitations; No Reliance on Reports. YOU ACKNOWLEDGE AND AGREE THAT (I) THE EXCEEDS SERVICES AND THE REPORTS ARE not intended as any form of an automated decision-making technology (as defined by applicable laws) OR A SUBSTITUTE FOR HUMAN DECISION MAKING; (II) ANY AND ALL REPORTS ARE PROVIDED FOR INFORMATION PURPOSES ONLY AND SHOULD NOT BE CONSTRUED AS ADVICE OR SOLELY RELIED ON IN ANY DECISION-MAKING; AND (III) YOU WILL CONDUCT YOUR OWN DILIGENCE AND EXERCISE YOUR OWN BEST BUSINESS JUDGMENT WITH MEANINGFUL HUMAN INVOVLEMENT IN MAKING ANY DECISIONS OR TAKING ANY ACTIONS REGARDING ANY TEAM-MEMBERS OR OTHERWISE IN CONNECTION WITH ANY REPORTS. EXCEEDS HEREBY DISCLAIMERS ANY AND ALL LIABILITY IN CONNECTION WITH ANY REPORT OR YOUR RELIANCE THEREON, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DECISIONS, ACTIONS, OR OUTCOMES RESULTING FROM THE USE OF, OR IN CONNECTION WITH, ANY REPORTS.  

16.     Indemnity. You will indemnify and hold Exceeds and its officers, directors, employees and agents, harmless from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (a) your access to or use of the Exceeds Services, (b) any User Content, or (c) your violation of these Terms.

17.     Limitation of Liability.

(a)        TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER EXCEEDS NOR ITS SERVICE PROVIDERS INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE EXCEEDS SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE EXCEEDS SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT EXCEEDS OR ITS SERVICE PROVIDERS HAVE 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.

(b)        TO THE MAXIMUM EXTENT PERMITTED BY THE LAW OF THE APPLICABLE JURISDICTION, IN NO EVENT WILL EXCEEDS’ TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE EXCEEDS SERVICES EXCEED, AS APPLICABLE, (I) THE FEES ACTUALLY PAID BY YOU TO EXCEEDS IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE APPLICABLE CLAIM MADE UNDER OR RELATED TO THESE TERMS (LESS ALL AMOUNTS PAID BY EXCEEDS TO YOU FOR ALL PAST CLAIMS OF ANY KIND MADE UNDER OR RELATED TO THESE TERMS); OR (II) ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO EXCEEDS.

(c)        THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN EXCEEDS AND YOU.

18.     Governing Law and Forum Choice. These Terms and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of California, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 19 (Dispute Resolution), the exclusive jurisdiction for all Disputes (defined below) that you and Exceeds are not required to arbitrate will be the state and federal courts located in Santa Clara County, California, and you and Exceeds each waive any objection to jurisdiction and venue in such courts.

19.     Dispute Resolution. If you are an individual who uses the Exceeds Services for yourself and not on behalf of an organization or entity, disputes with Exceeds shall be resolved as set forth in this Section ‎19.

(a)        Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Exceeds Services (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Exceeds agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and Exceeds are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.

(b)        Exceptions. As limited exceptions to Section ‎19(a) above: (i) we both may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights.

(c)        Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules (the “AAA Commercial Rules”) then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Commercial Rules. The AAA provides a form Demand for Arbitration at www.adr.org.

The arbitration will be conducted using remote conferencing technology (e.g., by videoconference), in person in Los Gatos, California, United States or at some other location that we both agree to. Disputes that meet the requirements for desk arbitrations as set forth in the AAA Commercial Rules, may be resolved by the submission of documents only, as set forth in the AAA Commercial Rules, unless the Arbitrator decides that a hearing is necessary. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.

(d)        Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules, and we won’t seek to recover the administration and arbitrator fees we are responsible for paying, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration, we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration, you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.

(e)        Injunctive and Declaratory Relief. Except as provided in Section ‎19(b) above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either party and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. To the extent that you or we prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.

(f)         Class Action Waiver. YOU AND EXCEEDS 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. Further, if the parties’ Dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Section 19 (Dispute Resolution) section shall be null and void.

(g)        Severability. With the exception of any of the provisions in Section ‎19(f) of these Terms (“Class Action Waiver”), if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.

20.     General Terms.

(a)        Reservation of Rights. Exceeds and its licensors exclusively own all right, title and interest in and to the Exceeds Services, including all associated intellectual property rights therein and thereto. You acknowledge that the Exceeds Services are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Exceeds Services.

(b)        Miscellaneous. These Terms constitute the entire and exclusive understanding and agreement between Exceeds and you regarding the Exceeds Services, and these Terms supersede and replace all prior oral or written understandings or agreements between Exceeds and you regarding the Exceeds Services. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. Except where provided by applicable law in your jurisdiction, you may not assign or transfer these Terms, by operation of law or otherwise, without Exceeds’ prior written consent. Any attempt by you to assign or transfer these Terms absent our consent or your statutory right, without such consent, will be null. Exceeds may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns. Any notices or other communications provided by Exceeds under these Terms will be given: (a) via email; or (b) by posting to the Exceeds Services. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted. Exceeds’ failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Exceeds. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.

21.     Contact Information. If you have any questions about these Terms or the Exceeds Services, please contact Exceeds at support@exceeds.ai.