Last updated: Dec 19, 2024
Please read these Terms of Service ("Terms") and our Privacy Notice ("Privacy Notice") carefully because they govern your use of Impact Tracker (defined below) accessed and/or downloaded via the Microsoft Visual Studio Marketplace, offered by Exceeds AI Corporation ("Exceeds," "we," "our," or "us"). For purposes of these Terms, "you" and "your" refer to the individual or entity using Impact Tracker (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 18 (DISPUTE RESOLUTION) BELOW FOR DETAILS REGARDING ARBITRATION.
Exceeds offers a software extension via the Microsoft Visual Studio Marketplace known as "Exceeds Impact Tracker" which is designed to track software code that you write, review, and/or modify (including without limitation Visual Studio Code) ("Your Code Snippets"), analyze technical design specifications and other documentation you upload ("Your Design Documents"), and generate reports, summarizes, and performance reviews (including through the use of third-party artificial intelligence technology, such as report and summary processing via large language models) related to such code writing, review, and modification by you (such software extension, "Impact Tracker," and such reports, summaries, and performance reviews generated by Impact Tracker, "Reports").
By downloading, accessing, and/or using Impact Tracker, 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 Impact Tracker. IF YOU ARE DOWNLOADING, ACCESSING, OR USING IMPACT TRACKER 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 IMPACT TRACKER PURSUANT TO SECTION 10(b)), YOU HAVE ALL REQUIRE RIGHTS, PERMISSIONS, CONSENT, AND AUTHORITY FROM THE 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.
Subject to your compliance with these Terms, Exceeds grants you a non-exclusive, non-transferable, non-sublicensable, limited license to use Impact Tracker for your internal, non-commercial purposes to generate Reports using User Content. Notwithstanding the foregoing, you may not use Impact Tracker in any manner which infringes a third-party's intellectual property rights, violates law, or to develop or commercialize a product that could compete with Impact Tracker or Exceeds.
Please review our Privacy Notice, which also governs your use of Impact Tracker, for information on how we collect, use and share personal information. We may use and/or process your personal information, including without limitation Account 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 Impact Tracker.
We may update the Terms from time to time in our sole discretion. If we do, we'll let you know by posting the updated Terms via Impact Tracker and/or may also send other communications. It's important that you review the Terms whenever we update them or you use Impact Tracker. If you continue to use Impact Tracker 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 Impact Tracker anymore. Because our Impact Tracker is evolving over time we may change or discontinue all or any part of Impact Tracker, at any time and without notice, at our sole discretion.
You may use Impact Tracker only if you are capable of forming a binding contract with Exceeds, and not otherwise barred from using Impact Tracker under applicable law.
No user account is required in order to use many of the features of Impact Tracker. However, to use certain features of Impact Tracker, including without limitation to enable Impact Tracker to track your writing, reviewing, and modifications of User Content over a duration of time and generate more comprehensive Reports for you, you may be required to create an account with us ("Account"). It is important that you provide us with accurate, complete, and current account information, which may include your name, email address, and other information ("Account Information") and keep this Account Information up to date. If you don't, we might have to suspend or terminate your Account. To protect your Account, keep the Account details and password confidential, and notify us right away of any unauthorized use. You're responsible for all activities that occur under your Account. Account and Account Information, as well as certain other information about you, may be governed by our Privacy Notice.
Many features of Impact Tracker are provided free of charge. However, we reserve the right to charge fees for the use of Impact Tracker, or any feature therein, in our sole discretion and at any time.
We appreciate feedback, comments, ideas, proposals and suggestions for improvements to Impact Tracker ("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.
By creating an Account, you agree to provide Account Information to Exceeds, and further, whether or not you create an Account, subject to your election for Local AI Processing (if offered to you via Impact Tracker pursuant to Section 10(b)), Impact Tracker monitors and tracks your creation and modification of Your Code Snippets and ingests and analyzes Your Design Documents (collectively, together with Your Code Snippets 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 to your User Content.
In order for our Third-Party AI Provider to generate Reports from User Content (such as Your Code Snippets and Your Design Documents), you may elect via Impact Tracker 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 Impact Tracker ("Exceeds-provided Third-Party API Key"), or (ii) obtained yourself from the Third-Party AI Provider ("Your Third-Party API Key"). Alternatively, Impact Tracker may offer you the ability to elect to run artificial intelligence technology locally on the computer with which Impact Tracker is installed, ("Local AI Processing") in order to process User Content to generate Reports. You hereby grant Exceeds the right (i) to access, use, and analyze User Content in order to generate Reports for you, (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, and (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. 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 Impact Tracker will not disclose User Content to a Third-Party AI Provider. ; (iv) to use User Content to improve the inputs and outputs that Exceeds uses in connection with Impact Tracker; and (v) to store at rest (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 Impact Tracker. 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 Impact Tracker will not disclose User Content to a Third-Party AI Provider.
[FW1]Mark:Consistent with your ask, we limited this to just the improvement of Exceeds’own inputs/output to the Impact Tracker tool. We suspect this relates to theinputs you submit to generate Reports.
Please let us know if you change your mind and wouldlike the improvement right to apply more broadly to the Impact Tracker and/orExceeds other products and services.
[FW2]Mark:Please confirm this is accurate in light of the additional language allowingExceeds to improve its products and host/store User Content with third-partyhosted services providers.
You are solely responsible for all your User Content. You represent and warrant that you have (and will have) all rights that are necessary to grant us the license rights in your User Content under these Terms. You represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through Impact Tracker (including without to a Third-Party AI Provider), nor any use of your User Content by Exceeds on or through Impact Tracker 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.
Exceeds is not obligated to monitor access to or use of Impact Tracker or to review or edit any content. However, we have the right to do so for the purpose of operating Impact Tracker, 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 Impact Tracker. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
Impact Tracker 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 Impact Tracker"). Such Third-Party Impact Tracker may be embedded in Impact Tracker, however, Exceeds does not provide the Third-Party Impact Tracker and is not responsible for any compatibility issues, errors, bugs in, or any data loss resulting from or due to, the Third-Party Impact Tracker. You acknowledge and agree that you are solely responsible for, and assume all risk arising from, your use of all Third-Party Impact Tracker, AND EXCEEDS HEREBY DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY ARISING FROM OR IN CONNECTION WITH THE THIRD-PARTY SERVICES.
We may suspend or terminate your access to and use of Impact Tracker, including suspending access to or terminating your account, at our sole discretion, at any time and without notice to you. You may cancel your account at any time by sending us an email at support@exceeds.ai. Upon any termination, discontinuation or cancellation of Impact Tracker or your account, the following Sections will survive: 9, 10(c), 11, 12, 13, 14, 15, 16, 17, 18, and 19.
IMPACT TRACKER IS 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 Impact Tracker 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 Impact Tracker. 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 Snippets to Third-Party AI Providers, or any unauthorized access to User Content or otherwise.
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, IMPACT TRACKER 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 ANAYLYZED BY, IMPACT TRACKER, 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 IMPACT TRACKER IN CONNECTION WITH YOUR USE THEREOF.
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 Impact Tracker, (b) your User Content, or (c) your violation of these Terms.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER EXCEEDS NOR ITS SERVICE PROVIDERS INVOLVED IN CREATING, PRODUCING, OR DELIVERING IMPACT TRACKER 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 IMPACT TRACKER, 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.
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 IMPACT TRACKER EXCEED ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO EXCEEDS, AS APPLICABLE.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN EXCEEDS AND YOU.
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 18 (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.
If you are an individual who uses Impact Tracker for yourself and not on behalf of an organization or entity, disputes with Exceeds shall be resolved as set forth in this Section 18.
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 Impact Tracker (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.
As limited exceptions to Section 18(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.
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.
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.
Except as provided in Section 18(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.
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 18 (Dispute Resolution) section shall be null and void.
With the exception of any of the provisions in Section 18(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.
Exceeds and its licensors exclusively own all right, title and interest in and to Impact Tracker, including all associated intellectual property rights therein and thereto. You acknowledge that Impact Tracker is 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 Impact Tracker.
These Terms constitute the entire and exclusive understanding and agreement between Exceeds and you regarding Impact Tracker, and these Terms supersede and replace all prior oral or written understandings or agreements between Exceeds and you regarding Impact Tracker. 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 Impact Tracker. 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.
If you have any questions about these Terms or Impact Tracker, please contact Exceeds at support@exceeds.ai.