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Terms of Use

Terms of Use

Effective Date: 2024-12-04

Welcome to EvolutionaryScale. Please read on to learn the rules and restrictions that govern your use of our website(s) and unpaid use of our application programming interfaces and related documentation, materials, and information (the “API”) (collectively, the “Services”). 

Use of EvolutionaryScale’s ESM-3 and ESMC 600M Open Models are subject to the EvolutionaryScale Cambrian Non-Commercial License Agreement available at https://www.evolutionaryscale.ai/policies/cambrian-non-commercial-license-agreement, as may be updated and amended from time to time. Use of EvolutionaryScale’s ESMC 300M Open Model is subject to the EvolutionaryScale Cambrian Open License Agreement available at https://www.evolutionaryscale.ai/policies/cambrian-open-license-agreement, as may be updated and amended from time to time. Any paid licenses to the API or EvolutionaryScale’s models made available through the Amazon Web Services SageMaker platform (“AWS SageMaker”) are subject to the EvolutionaryScale Cambrian Commercial Interface Clickthrough License Agreement available at https://www.evolutionaryscale.ai/policies/cambrian-inference-clickthrough-license-agreement. If you have any questions, comments, or concerns regarding these terms or the Services, or what set of terms applies to your use of any EvolutionaryScale offerings, please contact us at:

Email: info@evolutionaryscale.ai

Address: 853 Broadway, New York NY, 10003

These Terms of Use (the “Terms”) are a binding contract between you and EVOLUTIONARYSCALE, PBC (“EvolutionaryScale,” “we” and “us”). Your use of the Services in any way means that you agree to all of these Terms, and these Terms will remain in effect while you use the Services. These Terms include the provisions in this document as well as those in the Privacy Policy and Acceptable Use Policy (the “AUP”) and you acknowledge and agree that your use of the Services is subject to these policies. Your use of or participation in certain Services may also be subject to additional policies, rules and/or conditions (“Additional Terms”), which are incorporated herein by reference, and you understand and agree that by using or participating in any such Services, you agree to also comply with these Additional Terms.

Please read these Terms carefully. They cover important information about Services provided to you. These Terms include information about future changes to these Terms, limitations of liability, a class action waiver and resolution of disputes by arbitration instead of in court. PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.

ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION AGREEMENT SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.

Will these Terms ever change?

We are constantly trying to improve our Services, so these Terms may need to change along with our Services. We reserve the right to change the Terms at any time, but if we do, we will place a notice on our site located at https://evolutionaryscale.ai, send you an email, and/or notify you by some other means. 

If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes. 

Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us. 

What about my privacy?

In connection with your access to and use of the Services, EvolutionaryScale may collect, from you or automatically through your use of the Services, certain registration information other information about you, any legal entity you may represent, and your use of the Services. EvolutionaryScale takes the privacy of its users very seriously. For the current EvolutionaryScale Privacy Policy, please click here.

What are the basics of using EvolutionaryScale?

You may be required to sign up for an account, select a password and user name (“EvolutionaryScale User ID”), and provide us with certain information or data, such as your contact information. You promise to provide us with accurate, complete, and updated registration information about yourself. You will not share your EvolutionaryScale User ID, account or password with anyone, and you must protect the security of your EvolutionaryScale User ID, account, password and any other credentials. You’re responsible for any activity associated with your EvolutionaryScale User ID and account. We also may provide you with access code(s) (e.g., password, key, tokens, etc.; collectively “Access Codes”) to access the API and you must protect the confidentiality of such Access Codes.  You may not sell, transfer, sublicense or otherwise disclose your Access Codes to any other party.  You may not modify or attempt to circumvent the Access Codes. You are responsible for maintaining the secrecy and security of the Access Codes.

Additionally, you may be able to access certain parts or features of the Services by using your account credentials from other services (each, a “Third Party Account”). By using the Services through a Third Party Account, you permit us to access certain information from such account for use by the Services. You are ultimately in control of how much information is accessible to us and may exercise such control by adjusting your privacy settings on your Third Party Account. 

You represent and warrant that you are at least 18 years of age. If you are under age 18, you may not, under any circumstances or for any reason, use the Services.  If you’re agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization’s or entity’s behalf and bind them to these Terms (in which case, the references to “you” and “your” in these Terms, except for in this sentence, refer to that organization or entity).

Subject to these Terms, you will only use the Services for Non-Commercial Purposes, and only in a manner that complies with (i) all of the restrictions set forth in these Terms and the AUP; and (ii) all laws that apply to you. “Non-Commercial Purposes” means uses not intended for or directed toward commercial advantage or monetary compensation, or the facilitation of development of any product or service to be sold or made available for a fee. For the avoidance of doubt, the provision of Outputs as a service or the use of the Licensed Non-Commercial Models for sponsored research purposes (funded by a Commercial Entity) are not Non-Commercial Purposes is not a Non-Commercial Purpose. “Commercial Entity” means any entity engaged in any activity intended for or directed toward commercial advantage or monetary compensation, including, without limitation, the development of any product or service intended to be sold or made available for a fee. For the purpose of these Terms, references to a Commercial Entity expressly exclude any universities, non-profit organizations, not-for-profit entities, research institutes and educational and government bodies. For the avoidance of doubt, using the Services, including the API, to Exploit (as defined below) any commercial offerings is strictly prohibited.  If your use of the Services is prohibited by applicable laws, then you aren’t authorized to use the Services. We can’t and won’t be responsible for your using the Services in a way that breaks the law.

Are there restrictions in how I can use the Services?

You represent, warrant, and agree that you will not provide or contribute anything, including any Content or Input (as those terms are defined below), to the Services, or otherwise use or interact with the Services, in a manner that:

  1. infringes or violates the intellectual property rights or any other rights of anyone else (including EvolutionaryScale);
  2. violates any law or regulation, including, without limitation, any applicable export control laws, privacy laws or any other purpose not reasonably intended by EvolutionaryScale;
  3. is dangerous, harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
  4. jeopardizes the security of your EvolutionaryScale User ID, account or anyone else’s (such as allowing someone else to log in to the Services as you);
  5. attempts, in any manner, to obtain the password, account, or other security information from any other user;
  6. violates the security of any computer network, or cracks any passwords or security encryption codes;
  7. runs Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure);
  8. "crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services, Outputs (as defined below) or Content (through use of manual or automated means);
  9. copies or stores any significant portion of the Outputs or Content; or
  10. decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services or Outputs.

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A violation of any of the foregoing is grounds for termination of your right to use or access the Services. 

What are my rights in the Services and any related Outputs?

You understand that EvolutionaryScale owns the Services. Subject to these Terms, we grant to you a limited, non-exclusive, personal, revocable, non-sublicensable, non-transferable right and license to access and use the Services, including the API, solely during the term of these Terms for Non-Commercial Purposes. Any use of the API or Services for any purpose that is not a Non-Commercial Purpose is strictly prohibited under these Terms, and will be subject to additional and separate terms. Please contact EvolutionaryScale at bd@evolutionaryscale.ai to discuss a commercial license to use the API or any EvolutionaryScale ESM-3 models, or purchase a license through AWS SageMaker at https://aws.amazon.com/marketplace/seller-profile?id=seller-iw2nbscescndm, as may be updated and amended from time to time. 

Any EvolutionaryScale models (“Models”) made available to you through the Services are intended for use to predict and generate protein attributes like sequence, 3D structure and function attributes from any partial combination of those attributes as Inputs, and any use of the Models that is inconsistent with the foregoing or with the requirements of any applicable laws, rules and regulations is not permitted. You may only use the Models for Non-Commercial Purposes and you may not access or use any Models or Outputs for or on behalf of a Commercial Entity (as defined below).

You must disclose to EvolutionaryScale any Sequence of Concern (“SOC”) use of the Models and use the Models in a way that is consistent with any purpose described to EvolutionaryScale (a “Use Disclosure”), including in connection with your request or application for access to the Models. EvolutionaryScale reserves the right to limit your use of the Models in response to any Use Disclosure or use of the Models that is inconsistent with a Use Disclosure.

The materials displayed or available on or through the Services, including, but not limited to, any models, sequences, proteins, molecules, graphics, images and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won’t use, make, copy, reproduce, incorporate, import, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, commercialize or otherwise exploit (collectively, “Exploit”) for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including EvolutionaryScale's) rights.

Some Services or components thereof may be powered by artificial intelligence (“AI”). The content of the Services may also include Outputs. “Outputs” means any outputs, including any protein sequences, structure predictions, functional annotations, molecules, descriptions of molecules, models, sequences, text, and images that are elicited directly or indirectly by, or otherwise made available to, you in connection with your use of the Models. You may, accordingly, interact with Outputs in the course of utilizing the Models, and use of the Models may generate Outputs. 

You may not: (i) Exploit or otherwise grant to any third party any right, title or interest in or to the Outputs or any enhancements, modifications and derivative works thereof or derived therefrom (including, but not limited to, any derivative sequences or molecules) (collectively, the “Outputs Derivatives”) to improve any other large language model (excluding a Model or Derivative Works thereof) or for any Non-Commercial Purpose; (ii) use or provide access to any Outputs or Output Derivatives to train, optimize, improve or otherwise influence the functionality or performance of any other large language model, technology for protein structure prediction or other Third Party Model that is similar to EvolutionaryScale’s Services; (iii) use any automated or programmatic method to extract data or Outputs or to circumvent limits on Outputs, including scraping, web harvesting, or web data extraction; (iv) represent that any Outputs were human-generated; (v) publish, distribute or present any Outputs or Output Derivatives without acknowledging that the Outputs or Output Derivatives were generated in connection with use of the Services and providing attribution to EvolutionaryScale, PBC in accordance with EvolutionaryScale’s then current attribution or brand guidelines; or (vi) allow any Third Party Model provider or other third party to do any of the foregoing. You and anyone you share Outputs with are solely responsible for their subsequent uses. For the avoidance of doubt, the Services, the Outputs and the Output Derivatives may only be used for Non-Commercial Purposes. Any commercial use of the Services, Outputs or any Outputs Derivatives is strictly prohibited under these Terms and will be subject to additional and separate terms. Please contact EvolutionaryScale at bd@evolutionaryscale.ai to discuss commercial use of any Services, Outputs or Outputs Derivatives. “Third Party Models” refers to any AI-powered large language models that are developed or operated by a third party. Your use of Third Party Models may be subject to additional terms and conditions, and you are solely responsible for complying with such terms and conditions. We are unable to guarantee the suitability, accuracy, quality, security, legality and reliability of Third Party Models. 

You acknowledge that we may generate the same or similar Outputs for multiple users and that we reserve all rights to do so.

Anything you upload, share, store, or otherwise provide through the Services is your “Input”. As between you and EvolutionaryScale, and subject to the licenses granted in these Terms, you retain all right, title, and interest in and to your Inputs. You are solely responsible for all Inputs you contribute to the Services. You represent that all Inputs submitted by you are accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations. 

If you provide us with any comments, suggestions, ideas, or other feedback (together, “Feedback”), you agree that we will be free to copy, modify, create derivative works of, publicly display, disclose, distribute, license and sublicense, incorporate and otherwise use the Feedback, including derivative works thereto, for any and all purposes (including both commercial purposes and Non-Commercial Purposes) with no obligation of any kind to you. You agree that you will not post, upload, share, store, or otherwise provide through the Services any Inputs that infringe any third party's copyrights or other rights (e.g., trademark, privacy rights, etc.) or violate any law.

You hereby do and shall grant EvolutionaryScale a worldwide, non-exclusive, perpetual, royalty-free, fully paid, sublicensable and transferable license to use, edit, modify, truncate, aggregate, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit and commercialize the Inputs in connection with the Services and our (and our successors’ and assigns’) businesses. Subject to our Privacy Policy, EvolutionaryScale will store all Inputs and Outputs. For the avoidance of doubt nothing stated herein shall restrict EvolutionaryScale from using any Inputs or Outputs to train, optimize, or otherwise influence the functionality or performance of its own technology or tools, including, without limitation, any language or machine learning models or offerings.  

Finally, you understand and agree that EvolutionaryScale, in performing the required technical steps to provide the Services to our users (including you), may need to make changes to your Inputs or the Outputs to conform and adapt those Inputs or the Outputs to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.

Who is responsible for what I see and do on the Services?

You are responsible for all Content you contribute, in any manner, to the Services, including, but not limited to, any Inputs, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it.

You acknowledge that Outputs may contain errors and misstatements and may be incomplete or inaccurate. Due to the nature of AI, it is possible that Outputs generated through your use of the Services may be similar to Outputs generated through another customer’s use of the Services, or that the same Input may result in different Outputs from one use to the next. Before leveraging any Outputs, you are responsible for making your own determination that the Outputs are suitable, and you are solely responsible for any reliance on the accuracy, completeness, or usefulness of any Outputs. We cannot control and have no duty to take any action regarding how you may interpret and use the Output or what actions you may take as a result of having been exposed to the Output, and you hereby release us from all liability for you having acquired or not acquired Output through the Services. You should not act or refrain from acting on the basis of the Outputs. Outputs are not intended, validated, or approved for clinical use. You should not use Outputs for clinical purposes or rely on them for medical or other professional advice. We make no representations or warranties regarding any Outputs, which are provided “AS IS” and should be accessed and used at your own risk. EvolutionaryScale will not be liable in any way for any Outputs or for any loss or damage of any kind incurred as a result of your interaction with the Services or any AI-Powered Technology. You agree to defend, indemnify and hold harmless EvolutionaryScale with respect to any claims, damages or liability related thereto. 

The Services may contain links or connections to third-party websites or services that are not owned or controlled by EvolutionaryScale. When you access third-party websites or use third-party services, you accept that there are risks in doing so, and that EvolutionaryScale is not responsible for such risks. 

Will EvolutionaryScale ever change the Services?

We’re always trying to improve our Services, so they may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. Your access to and use of the API may be interrupted for the duration of any scheduled, unscheduled, or unanticipated downtime, suspension or other unavailability of any portion or all of the API or the Services, for any reason and in our sole discretion. We reserve the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges you contributed that Content in violation of these Terms), in our sole discretion, and without notice. We shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur as a result of any downtime, suspension or other unavailability of the API or the Services.

Do the Services cost anything?

Pursuant to these Terms, access to the API is currently free. In the future we may charge for other offerings or versions of the API or other Services, which may be subject to additional or different terms. 

What if I want to stop using the Services? 

You’re free to do that at any time by contacting us at info@evolutionaryscale.ai; please refer to our Privacy Policy, as well as the licenses above, to understand how we treat information you provide to us after you have stopped using our Services. 

EvolutionaryScale is also free to terminate (or suspend access to) your use of the Services or your account for any reason in our discretion, including your breach of these Terms. EvolutionaryScale has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms.

Account termination may result in destruction of any Content and Inputs associated with your account, so keep that in mind before you decide to terminate your account. 

If you have deleted your account by mistake, contact us immediately at info@evolutionaryscale.ai – we will try to help, but unfortunately, we can’t promise that we can recover or restore anything.

Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us, including without limitation the arbitration agreement. 

What else do I need to know?

Confidentiality. The Services and the API (including, without limitation, all improvement, derivatives, modifications and the like) constitute EvolutionaryScale’s confidential information (“Confidential Information”).  You hereby agree (i) to hold the Confidential Information in confidence and to take reasonable precautions to protect such Confidential Information (including, without limitation, all precautions you employ with respect to your own confidential materials), (ii) not to divulge any Confidential Information to any third person, (iii) not to use any Confidential Information except for the purposes set forth in these Terms, and (iv) not to copy or reverse engineer any Confidential Information.  You acknowledge and agree that due to the unique nature of our Confidential Information, there can be no adequate remedy at law for any breach of its obligations hereunder and therefore, that upon any such breach or any threat thereof, we shall be entitled to appropriate equitable relief in addition to whatever remedies we might have at law.  

Warranty Disclaimer. EvolutionaryScale and 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 (EvolutionaryScale and all such parties together, the “EvolutionaryScale Parties”) make no representations or warranties concerning the Services, including without limitation regarding any Content or Outputs contained in or accessed through the Services, and the EvolutionaryScale Parties will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services or any claims, actions, suits procedures, costs, expenses, damages or liabilities arising out of use of, or in any way related to your participation in, the Services. THE SERVICES, OUTPUTS AND CONTENT ARE PROVIDED BY EVOLUTIONARYSCALE (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. 

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 ANY OF THE EVOLUTIONARYSCALE 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 ONE-HUNDRED ($100) DOLLARS OR (D) ANY MATTER BEYOND OUR 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. 

Indemnity. You agree to indemnify and hold the EvolutionaryScale Parties harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any claims relating to (a) your use of the Services (including any actions taken by a third party using your account), and (b) your violation of these Terms. 

Assignment. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without EvolutionaryScale's prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.

Choice of Law. These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of New York, without regard to the conflicts of laws provisions thereof.

Arbitration Agreement. Please read the following ARBITRATION AGREEMENT carefully because it requires you to arbitrate certain disputes and claims with EvolutionaryScale and limits the manner in which you can seek relief from EvolutionaryScale. Both you and EvolutionaryScale acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, EvolutionaryScale's officers, directors, employees and independent contractors (“Personnel”) are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.

(a) 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 these Terms 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. 

(b) Costs of Arbitration. The Rules will govern payment of all arbitration fees. EvolutionaryScale will pay all arbitration fees for claims less than seventy-five thousand ($75,000) dollars. EvolutionaryScale will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous. 

(c) Small Claims Court; Infringement. Either you or EvolutionaryScale 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. 

(d) Waiver of Jury Trial. YOU AND EVOLUTIONARYSCALE WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and EvolutionaryScale 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 EvolutionaryScale over whether to vacate or enforce an arbitration award, YOU AND EVOLUTIONARYSCALE WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.

(e) 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 EvolutionaryScale is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below. 

(f) 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: 33 Irving Pl, New York NY, 10003 postmarked within thirty (30) days of first accepting these Terms. 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 these Terms’ arbitration agreement.

(g) 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 EvolutionaryScale to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party, and both you and EvolutionaryScale 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. 

(h) 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 EvolutionaryScale.

Miscellaneous. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms are found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and EvolutionaryScale agree that these Terms are the complete and exclusive statement of the mutual understanding between you and EvolutionaryScale, and that these Terms supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of EvolutionaryScale, and you do not have any authority of any kind to bind EvolutionaryScale in any respect whatsoever. Except as expressly set forth in the arbitration agreement, you and EvolutionaryScale agree there are no third-party beneficiaries intended under these Terms.

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