Dispute Resolution Policy
This EvolutionaryScale Dispute Resolution Policy (“DRP”) sets forth certain terms and procedures for the resolution of disputes under EvolutionaryScale’s Terms of Use available at the following link https://evolutionaryscale.ai/terms-of-use/, as updated and amended from time to time, or any applicable License Agreement with EvolutionaryScale, PBC (“ES”) applicable to any models, applications, products, services or model weights provided by ES (collectively, the “Services” or “Models” and such Terms of Use of License Agreement, the “Agreement”). Please read this DRP carefully as this DRP includes information about limitations of liability, a class action waiver and resolution of disputes by arbitration instead of in court. PLEASE NOTE THAT YOUR USE OF AN ACCESS TO THE MODELS ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE MODELS IN ANY MANNER.
Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL ES OR ITS LICENSORS, SUPPLIERS, PARTNERS, PARENT, SUBSIDIARIES OR AFFILIATED ENTITIES, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, CONSULTANTS, CONTRACT EMPLOYEES, REPRESENTATIVES AND AGENTS, AND EACH OF THEIR RESPECTIVE SUCCESSORS AND ASSIGNS (ES AND ALL SUCH PARTIES TOGETHER, THE “ES PARTIES”) BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION; (B) ANY SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; (C) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF: (I) ONE-HUNDRED ($100) DOLLARS AND (II) THE AMOUNT PAID BY YOU TO ES FOR ACCESS TO AND USE OF THE MODELS IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM UNDER THE AGREEMENT; OR (D) ANY MATTER BEYOND ES’S REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL OR CERTAIN OTHER DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
Arbitration Agreement. Please read the following ARBITRATION AGREEMENT carefully because it requires you to arbitrate certain disputes and claims with ES and limits the manner in which you can seek relief from ES. Both you and ES acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of the Agreement, ES's officers, directors, employees and independent contractors (“Personnel”) are third-party beneficiaries of the Agreement, and that upon your acceptance of the Agreement, Personnel will have the right (and will be deemed to have accepted the right) to enforce the Agreement against you as the third-party beneficiary hereof.
- Arbitration Rules; Applicability of Arbitration Agreement. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of the Agreement directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in New York County, New York. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
- Costs of Arbitration. The Rules will govern payment of all arbitration fees. ES will pay all arbitration fees for claims less than seventy-five thousand ($75,000) dollars. ES will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
- Small Claims Court; Infringement. Either you or ES may assert claims, if they qualify, in small claims court in New York County, New York or any United States county where you live or work. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
- Waiver of Jury Trial. YOU AND ES WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and ES are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and ES over whether to vacate or enforce an arbitration award, YOU AND ES WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
- Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor ES is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below.
- Opt-out. You have the right to opt out of the provisions of this Section by sending written notice of your decision to opt out to the following address: 853 Broadway, New York, NY, 10003 postmarked within thirty (30) days of first accepting the Agreement. You must include (i) your name and residence address; (ii) the email address and/or telephone number associated with your account; and (iii) a clear statement that you want to opt out of the Agreement’ arbitration agreement.
- Exclusive Venue. If you send the opt-out notice in (f), and/or in any circumstances where the foregoing arbitration agreement permits either you or ES to litigate any dispute arising out of or relating to the subject matter of the Agreement in court, then the foregoing arbitration agreement will not apply to either party, and both you and ES agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, New York County, New York, or the federal district in which that county falls.
- Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration Agreement section will be null and void. This arbitration agreement will survive the termination of your relationship with ES.