Terms of Service: Teams

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Terms of Service: Teams

Last updated December 9, 2024

Welcome, and thank you for your interest in Exafunction, Inc. (“Exafunction,” “we,” or “us”) and our website at www.codeium.com, along with the Software (as defined below), our related websites, hosted applications or other downloadable applications, and other services provided by us (collectively, the “Service”). These Terms of Service are a legally binding contract between you and Exafunction regarding your use of the Service.

PLEASE READ THE FOLLOWING TERMS CAREFULLY:

BY CLICKING “I ACCEPT,” SIGNING AN ORDER FORM THAT REFERENCES THESE TERMS OF SERVICE, OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING EXAFUNCTION’S PRIVACY POLICY (available at: https://codeium.com/privacy-policy) AND EXAFUNCTION’S ACCEPTABLE USE POLICY (available at: https://codeium.com/acceptable-use-policy) (TOGETHER, THESE “TERMS”). IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE. YOUR USE OF THE SERVICE, AND EXAFUNCTION’S PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY EXAFUNCTION AND BY YOU TO BE BOUND BY THESE TERMS.

If you are using the Service in the course of your work for an entity or organization that has a master subscription agreement with Exafunction in effect, then such master subscription agreement controls in the event of a conflict with these Terms.

ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 17, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND EXAFUNCTION ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING.

  1. Exafunction Service Overview. Our platform offers a suite of coding tools driven by machine learning to help developers write code more easily and efficiently and can provide suggested code, outputs or other functions.

  2. Eligibility. You must be at least 13 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 13 years old; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.

  3. Accounts and Registration. To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, or other contact information. You agree that the information you provide to us is accurate, complete, and not misleading, and that you will keep it accurate and up to date at all times. When you register, you will be asked to create a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you should immediately notify us at hello@codeium.com.

  4. Beta or Trial Versions. Exafunction may from time to time offer trial or beta versions or features of the Service (each, a “Beta Service”). Exafunction will determine, at its sole discretion, the availability, duration (the “Trial Period”), features, and components of each Beta Service. ANY BETA SERVICE IS PROVIDED “AS IS” WITHOUT ANY WARRANTIES. Notwithstanding anything to the contrary in these Terms, in no event will Exafunction be liable to you or any third party for any damages or liability related to, arising out of, or caused by any Beta Service and/or any modification, suspension, or termination thereof. If you qualify for a Beta Service and voluntarily agree to use a Beta Service, you agree to provide Exafunction Feedback (defined below) and respond to Exafunction’s questions or other inquiries regarding your use of the Beta Service, if requested. Exafunction has sole discretion in deciding whether or not to continue offering any Beta Service and may cease offering any Beta Service at any time. Upon completion of a Trial Period, you may lose access to the applicable Beta Service, unless or until the features of the Beta Service are incorporated into the Service. Any production candidate or non-production version of the Service will be considered a Beta Service. Except as expressly provided in this Section 4, these Terms govern your use of the Beta Service as part of the Service.

  5. General Payment Terms. Certain features of the Service may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. Unless otherwise specifically provided for in these Terms, all fees are in U.S. Dollars and are non-refundable, except as required by law. The pricing and payment terms in this Section 5 are subject to any pricing and payment terms set forth in an Order Form.

5.1. Price. Exafunction reserves the right to determine pricing for the Service. Exafunction will make reasonable efforts to keep pricing information published on the Service up to date. We encourage you to check our pricing page periodically for current pricing information. Exafunction may change the fees for any feature of the Service, including additional fees or charges, if Exafunction gives you advance notice of changes before they apply. Exafunction, at its sole discretion, may make promotional offers with different features and different pricing to any of Exafunction’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.

5.2. Authorization. You authorize Exafunction to charge all sums for the orders that you make and any level of Service you select as described in these Terms or published by Exafunction, including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, then Exafunction may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.

5.3. Subscription Service. The Service may include certain subscription-based plans with automatically recurring payments for periodic charges (“Subscription Service”). The “Subscription Billing Date” is the date when you purchase your first subscription to the Service. The Subscription Service will begin on the Subscription Billing Date and continue for the subscription period that you select on your account (such period, the “Initial Subscription Period”), and will automatically renew for successive periods of the same duration as the Initial Subscription Period (the Initial Subscription Period and each such renewal period, each a “Subscription Period”) unless you cancel the Subscription Service or we terminate it. If you activate a Subscription Service, then you authorize Exafunction or its third-party payment processors to periodically charge, on a going-forward basis and until cancellation of the Subscription Service, all accrued sums on or before the payment due date. For information on the “Subscription Fee”, please see our pricing page. Your account will be charged automatically on the Subscription Billing Date and thereafter on the renewal date of your Subscription Service for all applicable fees and taxes for the next Subscription Period. You must cancel your Subscription Service before it renews in order to avoid billing of the next periodic Subscription Fee to your account. Exafunction or its third-party payment processor will bill the periodic Subscription Fee to the payment method associated with your account or that you otherwise provide to us. You may cancel the Subscription Service by using the cancellation functionality made available in your billing menu or by contacting us at hello@codeium.com. YOUR CANCELLATION MUST BE RECEIVED BEFORE THE RENEWAL DATE IN ORDER TO AVOID CHARGE FOR THE NEXT SUBSCRIPTION PERIOD.

5.4. Delinquent Accounts. Exafunction may suspend or terminate access to the Service, including fee-based portions of the Service, for any account for which any amount is due but unpaid. In addition to the amount due for the Service, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any unpaid amount, including collection fees. If your payment method is no longer valid at the time a renewal Subscription Fee is due, then Exafunction reserves the right to delete your account and any information associated with your account without any liability to you.

  1. Licenses

6.1. Limited License. Subject to your complete and ongoing compliance with these Terms and the payment of the applicable Fee, Exafunction grants you, solely for your personal use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) access and use the Service; or (b) if you elect to use the self-hosted version of the Codeium and/or Forge platform, install and use one object code copy of any downloadable application the Codeium and/or Forge executable software that we provide to you (“Software”) on a mobile device or computing infrastructure that you own or control.

6.2. License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, publicly perform, or create derivative works of the Service; (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, then you may not use it.

6.3. Feedback. We respect and appreciate the thoughts and comments from our users. If you choose to provide input and suggestions regarding existing functionalities, problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant Exafunction an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right and license to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services. We will have no obligation to provide you with attribution for any Feedback you provide to us.

  1. Ownership; Proprietary Rights.

7.1. Rights to the Service and Materials. The Service is owned and operated by Exafunction. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service provided by Exafunction (“Materials”) are protected by intellectual property and other laws. All Materials included in the Service are the property of Exafunction or its third-party licensors. Except as expressly authorized by Exafunction, you may not make use of the Materials. There are no implied licenses in these Terms and Exafunction reserves all rights to the Materials not granted expressly in these Terms.

7.2. Suggestions. You may use the Service to generate code, outputs, or other functions (collectively, “Suggestions”). Exafunction hereby assigns to you all of its right, title, and interest in and to any Suggestions provided or returned to you by the Service. Notwithstanding the foregoing, you acknowledge that Suggestions are generated automatically by machine learning technology and may be similar to or the same as Suggestions provided to other customers, and no rights to any Suggestions generated, provided, or returned by the Service for or to other customers are granted to you under these Terms. Further, any Suggestions generated, provided, or returned by the Service may contain inaccuracies. ANY SUGGESTIONS ARE PROVIDED “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND.

  1. Customer and Usage Data

8.1. Customer Data. Any data, text, and any other works of authorship or other works, including source code (collectively, “Customer Data”) that you submit, upload, or otherwise post to or transmit (such actions, collectively, “Upload”) to the Service are only used to provide the Service and Suggestions to you. Customer Data is transmitted only to generate Suggestions in real-time and are deleted once Suggestions are generated, unless an account administrator has enabled any features that explicitly require persistent code snippets or derived information, in which case we may store code snippets and/or derived information to provide these Services. Customer Data is not used for any other purpose, including the training of language models. Customer Data is encrypted during transit and is not stored at rest. Notwithstanding the foregoing, for certain Services (e.g. Forge, Cascade), or if an account administrator has enabled features that explicitly require persistent code snippets or other information (e.g. Indexing), Exafunction may store code snippets and/or other information to provide these Services.

8.2. Usage Data. Exafunction may collect, generate, and derive performance, analytical, or usage data relating to your access to or use of the Service (“Usage Data”). Exafunction will only use Usage Data to provide the Service to you, to monitor the performance and stability of the Service, and to prevent or address technical issues with the Service. Exafunction may also anonymize Usage Data, aggregate it with other data, and use that aggregated, anonymized data to improve its products and services. Any extension that Exafunction publishes on the Visual Studio Marketplace may only be used with Microsoft Visual Studio, Visual Studio for Mac, Visual Studio Code, GitHub Codespaces, and platforms based on Visual Studio Code that are made available under an open source license. Exafunction Windsurf extensions, as published on OpenVSX or otherwise, may only be used with the Windsurf IDE.

  1. Third-Party Software. The Service may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.

  2. Communications; Email. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.

  3. Acceptable Use Policy. Please read the Exafunction Acceptable Use Policy (available at: https://codeium.com/acceptable-use-policty) (“AUP”) carefully for rules governing your use of the Services. The AUP is incorporated by this reference into, and made a part of, these Terms.

  4. Modification of Terms. We may, from time to time, change these Terms. Please check these Terms periodically for changes. Revisions will be effective immediately except that, for existing users, material revisions will be effective 30 days after posting or notice to you of the revisions unless otherwise stated. We may require that you accept modified Terms in order to continue to use the Service. If you do not agree to the modified Terms, then you should discontinue your use of the Service. Except as expressly permitted in this Section 11, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms.

  5. Term, Termination, and Modification of the Service

13.1. Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending on the earlier of: (i) the effective date of termination by either party in accordance with these Terms, including when terminated as described in Section 13.2, or (ii) when no Order Form remains in effect, if you and Exafunction had previously executed an Order Form.

13.2. Termination. If you violate any provision of these Terms, then your authorization to access the Service and these Terms automatically terminate. In addition, Exafunction may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice, and without any liability to you arising from such termination.

13.3. Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you must pay Exafunction any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 6.3 (Feedback), 7 (Ownership; Proprietary Rights), 13.3 (Effect of Termination), 14 (Indemnity), 15 (Disclaimers; No Warranties by Exafunction), 16 (Limitation of Liability), 17 (Dispute Resolution and Arbitration), and 18 (Miscellaneous) will survive. You are solely responsible for retaining copies of any content you upload to the Service, including Customer Data. Upon termination of your account, you may lose access rights to any information you provided to the Service. If your account has been terminated for a breach of these Terms, then you are prohibited from creating a new account on the Service using a different name, email address or other forms of account verification.

13.4. Modification of the Service. Exafunction reserves the right to modify or discontinue all or any portion of the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. Exafunction will have no liability for any change to the Service, including any paid-for functionalities of the Service, or any suspension or termination of your access to or use of the Service. You should retain copies of any User Content you Post to the Service so that you have permanent copies in the event the Service is modified in such a way that you lose access to User Content you Posted to the Service.

  1. Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify Exafunction, its affiliates and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (together, the “Exafunction Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including attorneys’ fees and costs, arising out of or connected with: (1) your unauthorized use of, or misuse of, the Service; (2) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (3) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (4) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.

  2. Disclaimers; No Warranties by Exafunction

15.1. THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING SUGGESTIONS, ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. EXAFUNCTION DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (a) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (b) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. EXAFUNCTION DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, INCLUDING SUGGESTIONS, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND EXAFUNCTION DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.

15.2. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR EXAFUNCTION ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING SUGGESTIONS, WILL CREATE ANY WARRANTY REGARDING ANY OF THE EXAFUNCTION ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.

15.3. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION 15 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Exafunction does not disclaim any warranty or other right that Exafunction is prohibited from disclaiming under applicable law.

  1. Limitation of Liability

16.1 TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE EXAFUNCTION ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, INCLUDING SUGGESTIONS, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY EXAFUNCTION ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.

16.2. EXCEPT AS PROVIDED IN SECTIONS 17.5 AND 17.6 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE EXAFUNCTION ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (a) THE AMOUNT YOU HAVE PAID TO EXAFUNCTION FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM AND (b) US$100.

16.3. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 16 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

  1. Dispute Resolution and Arbitration

17.1. Generally. Except as described in Section 17.2 and 17.3, you and Exafunction agree that every dispute arising in connection with these Terms, the Service, or communications from us will be resolved through binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury, is less formal than a court proceeding, may allow for more limited discovery than in court, and is subject to very limited review by courts. This agreement to arbitrate disputes includes all claims whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. Any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement will be resolved by the arbitrator.

YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND EXAFUNCTION ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

17.2. Exceptions. Although we are agreeing to arbitrate most disputes between us, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.

17.3. Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 17 within 30 days after the date that you agree to these Terms by sending a letter to Exafunction, Inc., Attention: Arbitration Opt-Out, 900 Villa Street, Mountain View, CA 94041 that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Exafunction receives your Opt-Out Notice, this Section 17 will be void and any action arising out of these Terms will be resolved as set forth in Section 18.2. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.

17.4. Arbitrator. This arbitration agreement, and any arbitration between us, is subject the Federal Arbitration Act and will be administered by the JAMS under the rules applicable to consumer disputes (collectively, “JAMS Rules”) as modified by these Terms. The JAMS Rules and filing forms are available online at www.jamsadr.org, by calling the JAMS at +1-800-352-5267 or by contacting Exafunction.

17.5. Commencing Arbitration. Before initiating arbitration, a party must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Exafunction’s address for Notice is: Exafunction, Inc., 900 Villa Street, Mountain View, CA 94041. The Notice of Arbitration must: (a) identify the name or account number of the party making the claim; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Exafunction may commence an arbitration proceeding. If you commence arbitration in accordance with these Terms, Exafunction will reimburse you for your payment of the filing fee, unless your claim is for more than US$10,000 or if the Company has received 25 or more similar demands for arbitration, in which case the payment of any fees will be decided by the JAMS Rules. If the arbitrator finds that either the substance of the claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the JAMS Rules and the other party may seek reimbursement for any fees paid to JAMS.

17.6. Arbitration Proceedings. Any arbitration hearing will take place in the county and state of your residence or business address (as applicable) unless we agree otherwise or, if the claim is for US$10,000 or less (and does not seek injunctive relief), you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a telephonic or video hearing; or (c) by an in-person hearing as established by the JAMS Rules in the county (or parish) of your residence or business address (as applicable). During the arbitration, the amount of any settlement offer made by you or Exafunction must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based.

17.7. Arbitration Relief. Except as provided in Section 17.8, the arbitrator can award any relief that would be available if the claims had been brough in a court of competent jurisdiction. If the arbitrator awards you an amount higher than the last written settlement amount offered by Exafunction before an arbitrator was selected, Exafunction will pay to you the higher of: (a) the amount awarded by the arbitrator and (b) US$10,000. The arbitrator’s award shall be final and binding on all parties, except (1) for judicial review expressly permitted by law or (2) if the arbitrator’s award includes an award of injunctive relief against a party, in which case that party shall have the right to seek judicial review of the injunctive relief in a court of competent jurisdiction that shall not be bound by the arbitrator’s application or conclusions of law. Judgment on the award may be entered in any court having jurisdiction.

17.8. No Class Actions. YOU AND EXAFUNCTION 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, unless both you and Exafunction agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

17.9. Modifications to this Arbitration Provision. If Exafunction makes any substantive change to this arbitration provision, you may reject the change by sending us written notice within 30 days of the change to Exafunction’s address for Notice of Arbitration, in which case your account with Exafunction will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.

17.10. Enforceability. If Section 17.8 or the entirety of this Section 17 is found to be unenforceable, or if Exafunction receives an Opt-Out Notice from you, then the entirety of this Section 17 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 18.2 will govern any action arising out of or related to these Terms.

  1. Miscellaneous

18.1. General Terms. These Terms, including the Privacy Policy, AUP, and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and Exafunction regarding your use of the Service. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms and all rights granted under these Terms, including with respect to your User Content, at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of Section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word “including” means “including but not limited to.” If any part of these Terms is held to be invalid or unenforceable, then the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.

18.2. Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and Exafunction submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara County, California for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.

18.3. Privacy Policy. Please read the Exafunction Privacy Policy (available at: https://codeium.com/privacy-policy) (the “Privacy Policy”) carefully for information relating to our collection, use, storage, and disclosure of your personal information. The Exafunction Privacy Policy is incorporated by this reference into, and made a part of, these Terms.

18.4. Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.

18.5. Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.

18.6. Contact Information. The Service is offered by Exafunction, Inc., located at 900 Villa Street, Mountain View, CA 94041. You may contact us by sending correspondence to that address or by emailing us at hello@codeium.com.

18.7. Notice to California Residents. If you are a California resident, then under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at +1-800-952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.

18.8. No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.

18.9. International Use. The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.