Trial Terms of Service
Last updated: October 2025
THIS TERMS OF SERVICE (“AGREEMENT”) SETS FORTH THE TERMS AND CONDITIONS UPON WHICH EIGHTFOLD AI INC., A DELAWARE CORPORATION WITH OFFICES AT 2625 AUGUSTINE DRIVE, SUITE 601, SANTA CLARA, CA 95054 (“EIGHTFOLD”) SHALL PROVIDE, AND YOU (THE “CUSTOMER”) SHALL OBTAIN THE USE OF THE SERVICES. BY AGREEING TO THIS AGREEMENT, BY CLICKING A BOX INDICATING ACCEPTANCE CUSTOMER REPRESENTS THAT CUSTOMER HAS FULL POWER, CAPACITY, AND AUTHORITY TO ACCEPT THE TERMS HEREIN. IF CUSTOMER IS ACCEPTING THE TERMS OF THIS AGREEMENT ON BEHALF OF AN EMPLOYER OR ANOTHER ENTITY, CUSTOMER REPRESENTS THAT CUSTOMER HAS FULL LEGAL AUTHORITY TO BIND SUCH EMPLOYER OR SUCH OTHER ENTITY TO THIS AGREEMENT. THIS AGREEMENT IS EFFECTIVE WHEN CUSTOMER CLICKS A BOX INDICATING ACCEPTANCE OR BEGINS USING THE SERVICES, WHICHEVER IS EARLIER (“EFFECTIVE DATE”).
EXCEPT FOR SECTION 11, PROVIDING FOR BINDING ARBITRATION AND WAIVER OF CLASS ACTION RIGHTS, EIGHTFOLD RESERVES THE RIGHT TO MODIFY THIS AGREEMENT FROM TIME TO TIME. THE MOST CURRENT VERSION OF THIS AGREEMENT WILL BE POSTED TO OUR WEBSITE AND ANY UPDATED VERSION OF THIS AGREEMENTS WILL SUPERSEDE ALL PREVIOUS VERSIONS. THE UPDATED TERMS WILL BECOME EFFECTIVE AS OF THE POSTING DATE. NO SEPARATE NOTICE WILL BE REQUIRED, AND YOUR CONTINUED USE OF THE EIGHTFOLD SERVICES AFTER THE UPDATED VERSION OF THE TERMS IS POSTED WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH UPDATED TERMS.
Background:
Eightfold provides a Software-As-A-Service (“SaaS”) platform that transforms how organizations hire and retain best talent. Customer desires to access and use the Eightfold platform services to augment its human resource practices. In consideration of the mutual promises herein, the parties agree as follows:
1. Definitions
In addition to terms defined elsewhere in this Agreement, the following terms have the following meanings:
“Affiliate” of a party means any entity that is controlled by a party to this Agreement, so long as the control exists.
“AUP” means the acceptable use policy for the applicable Service located at https://eightfold.ai/acceptable-use-policy/.
“Authorized User” means employees or authorized contractors of Customer and its Affiliates that use the Services solely for the benefit of Customer as an end user in accordance with this Agreement.
“Control” means direct or indirect control of more than 50% of the shares or other equity interests of the subject entity entitled to vote in the election of directors (or, in the case of an entity that is not a corporation, for the election or appointment of the corresponding managing authority).
“Customer Data” means information originating from Customer and entered or uploaded to the Services by Customer or its Authorized User.
“Intellectual Property” means any patent, copyright, trade name, trademark, trade secret, know-how, object code, source code, or any other intellectual property right whether registered or unregistered, and whether now known or hereafter recognized in any jurisdiction.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other malicious codes, files, scripts, or programs.
“Services” means the services offered by Eightfold to the Customer on a software-as-a-service basis.
“Services Generated Data” means product usage data, diagnostics data, and performance information or other similar data that Eightfold collects or otherwise generates from Customer’s and/or its Authorized Users’ use of the Services. For clarity, Eightfold will not publicly disclose or distribute Services Generated Data in a manner that identifies the Customer.
“Trial Period” means the earlier of (1) one month from the date of acceptance of this Agreement and (2) the date on which Customer conducts its 100th interview using the Services.
2. Services
2. 1. Provision of Eightfold’s Services. Subject to the terms herein, Eightfold hereby grants a non-exclusive, non-transferable right for Customer’s Authorized Users to access and use the Services solely for Customer’s internal business purposes for the duration of the Trial Period.
2. 2. Data Security. Eightfold will maintain a security program materially in accordance with industry standards that is designed to (i) ensure the security and integrity of Customer Data; (ii) protect against threats or hazards to the security or integrity of Customer Data; and (iii) prevent unauthorized access to Customer Data. The security program will be subject to periodic Service Organization Control 2 (SOC 2) audits or other similar independent third-party audits. Upon Customer’s request, Eightfold shall provide Customer with a copy of its then-current third-party audit report. In furtherance of the foregoing, Eightfold will maintain appropriate administrative, physical and technical safeguards that are designed to protect the security of Customer Data, including taking the security measures available at https://eightfold.ai/security-terms. Eightfold will not materially diminish such safeguards, when taken as a whole, during the term of this Agreement. Eightfold will make commercially reasonable efforts to use industry standard measures designed to scan, detect, and delete Malicious Code. Eightfold’s Data Processing Addendum (“DPA”) is available at https://eightfold.ai/dpa, and when it applies in connection with the Services, it will be incorporated herein by reference. Eightfold will notify Customer of any Security Incident in accordance with the DPA.
2.3. Restriction. Customer agrees that except as expressly permitted by this Agreement, it will not by itself, or through any third party, do any of the following: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how, or algorithms of the Services, or any software, documentation, Intellectual Property, or data associated with the Services; (b) modify, translate, or create derivative works based on any software, documentation, Intellectual Property, or data associated with the Services; (c) knowingly interfere with, disrupt or cause harm to Eightfold’s Services, platform, systems, or infrastructure; or (d) use the Services outside of the scope expressly permitted herein or for timesharing, service bureau purposes, sublicense, lease, sale transfer, or otherwise for the benefit of a third party.
2.4. Authorized Users. Customer may authorize certain contractors or certain employees of its Affiliates to be Authorized Users, provided that the Authorized Users are bound to abide by confidentiality, restriction, and usage responsibility terms at least as protective as what is set forth herein and that the Customer is responsible for all acts and omissions of such Authorized Users in connection herewith as if they were Customer hereunder. Customer shall not knowingly authorize any competitor of Eightfold to be an Authorized User. Customer shall notify Eightfold promptly upon becoming aware of any unauthorized access of the Services, including unauthorized use of Customer accounts.
3. Responsibilities in using the services
3.1. Compliance. Eightfold agrees to comply with all applicable laws and regulations in providing the Services to Customer. Customer agrees to use the Services only for their intended purposes and in compliance with this Agreement, the AUP, and all applicable laws and regulations, including any applicable obligations of providing sufficient data subject-related privacy notice and rights for its use of Eightfold’s Services. Further, as of the Effective Date of the Agreement, Customer acknowledges that Eightfold’s Services have data hosting in data centers located in the following regions: United States, Canada and Europe. Customer shall elect one of the regions for data hosting, and each party will comply with its obligations regarding personal data transfers outside the applicable region.
3.2. Cooperation to Set Up Services. Customer agrees that it will cooperate with Eightfold as reasonably required to set up and integrate the Services, and after integration address any service or technical issues. Customer is responsible for its choices regarding the configuration of the Services
3.3. Equipment to Access Services. Customer shall be responsible for maintaining the security of any equipment used to access Services, and accounts, passwords and files for its use of the Services.
4. Proprietary rights
4.1. As between Customer and Eightfold, Customer shall own and retain all rights, title and interest in and to the Customer Data. Customer represents that it has all necessary rights to upload the Customer Data for provision of the Services, and agrees that Eightfold may use the Customer Data to enable and provide Eightfold’s products and services, subject to the terms and conditions of this Agreement.
4.2. Subject to the license granted to Customer herein, Eightfold shall own and retain all rights, title and interest in and to the Services, Services Generated Data, and Anonymized Learnings, as well as (a) its products, services, software, and related documentation, and all improvements, enhancements or modifications thereto, and (b) any software, technology, documentation, and Intellectual Property developed in connection with the Services. For the purposes hereof, “Anonymized Learnings” means data created from Customer Data that is anonymized in such a way that it does not identify Customer or any individual, for lawful business purposes, including but not limited to product improvement (in particular, training and developing machine learning algorithms), industry benchmarking, and analytics.
4.3. Customer may from time to time provide Eightfold suggestions for product enhancement or other feedback (“Feedback”) with respect to any Eightfold product or service. Eightfold will have full discretion to determine whether or not to proceed developing any requested enhancement and will have the full right, with no obligation of payment to Customer and no other restriction, to use and otherwise exploit any such Feedback during and after the term hereof. Customer has no obligation to provide Feedback.
5. Confidentiality
5.1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose non-public information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party) pursuant to this Agreement. Confidential Information shall include any information that is clearly identified in writing at the time of disclosure as confidential or proprietary as well as any information that, based on the circumstances under which it was disclosed, a reasonable person would believe to be confidential. Confidential Information includes, but is not limited to, non-public information regarding features, benchmarking, functionality and performance of the Services (including any screenshots thereof), documentation, formulas, designs, new products, developmental work, marketing plans, business plans and processes, names of actual and prospective customers, third-party audit reports, and the terms and pricing under this Agreement. Confidential Information of either Party will not include any information that (a) is or becomes generally available to the public through no act or omission of the other party, or (b) was in the other party’s lawful possession prior to receipt from the Disclosing Party and had not been obtained by the other party either directly or indirectly from the Disclosing Party, or (c) was lawfully disclosed to the other party by a third party without restriction on disclosure, or (d) was independently developed without use or reference to any Confidential Information of the Disclosing Party.
5.2. Receiving Party shall safeguard Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure using no less than a reasonable degree of care; shall use it solely for the purpose of this Agreement; and shall not disclose it to any third party except to its Affiliates or contractors who need to know such information for such purpose (and in the case of Eightfold, to its third party service providers for necessary performance of the Services), and agree to abide by the Agreement and whose breach of the Agreement is Receiving Party’s responsibility. The obligation of confidentiality shall survive expiration or termination of this Agreement.
5.3. If required by law or a valid court order to disclose any Confidential Information, Receiving Party shall: (a) only disclose the required portion of the Confidential Information; (b) use reasonable efforts to ensure that such disclosure is afforded confidential treatment, and (c) to the extent legally permissible shall promptly notify and reasonably assist Disclosing Party so that Disclosing Party may seek a protective order or other remedy.
5.4. The Receiving Party acknowledges that the unauthorized disclosure or use of the other party’s Confidential Information may result in substantial and irreparable harm to the other party and that monetary damages will be difficult to determine and inadequate to compensate the other party. Therefore, the Receiving Party agrees that, upon any breach of the obligations in this section by the Receiving Party, the Disclosing Party shall be permitted to seek equitable relief such as an injunction, in addition to any other available remedies.
5.5. Upon expiration or termination of this Agreement, the Receiving Party will return to the Disclosing Party or use reasonable efforts to destroy all Confidential Information of the Disclosing Party in its possession or control promptly upon the written request of the Disclosing Party. The Receiving Party will certify in writing that it has complied with its obligations under this Section 5.5. Notwithstanding the foregoing, the Receiving Party may retain electronic backup copies of Confidential Information as part of the Receiving Party’s standard backup processes and systems. The Receiving Party shall comply with its obligations under this Agreement with regard to such copies and shall destroy them in accordance with Receiving Party’s normal destruction processes.
6. Term and Termination
6.1. Term. This Agreement commences on the Effective Date and continues until terminated at the end of the Trial Period or in accordance with the provisions of this Section 6.
6.2. Termination By Eightfold. Eightfold may terminate or suspend Customer’s access to the Services, without prior notice or liability, at any time and for any reason.
6.3. Effect of Termination. Upon any termination of the Agreement, Eightfold will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days upon Customer’s written request, but thereafter Eightfold may delete such Customer Data with or without Customer’s written request. Upon expiration or termination of this Agreement, Customer shall cease to use the Services.
6.4. Survival. All terms of this Agreement, which by their nature are intended to survive the Agreement’s termination or expiration, will so survive, including confidentiality, usage restriction, proprietary rights, disclaimers, accrued indemnity, limitations of liability, and termination provisions.
7. Warranty and disclaimer
7.1. Each party represents and warrants that: (a) it is duly organized, validly existing and in good standing as a corporation or other entity; and (b) it has the right, power and authority to enter the Agreement and to grant the rights granted hereunder and to perform all of its obligations hereunder.
7.2. Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Eightfold or by third-party providers, or due to causes beyond Eightfold’s reasonable control. Eightfold shall use reasonable efforts to provide advance notice in the platform, on the website, or by email of any scheduled service disruption. However, Eightfold does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services.
7.3. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS” AND EIGHTFOLD DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
8. Indemnity
8.1. Customer will release, indemnify, defend and hold harmless Eightfold and its subsidiaries, Affiliates, agents, officers, directors, employees, shareholders and representatives of any of the foregoing entities, from and against any and all losses, liabilities, expenses, damages, costs (including attorneys’ fees and court costs), claims, demands, suits, proceedings, or other action of any kind whatsoever (“Claim”) arising or resulting from Customer’s use of the Services or violation of this Agreement. Eightfold shall have the right to participate in or assume the exclusive defense and control of any Claim with counsel selected by Eightfold at Eightfold’s own expense; in such case, Customer agrees to cooperate in the defense of the Claim. Notwithstanding any other provision of this Agreement, Customer shall not enter into settlement of any Claim without the prior written consent of Eightfold.
9. Limitation of liability
9.1. WAIVER OF CONSEQUENTIAL DAMAGES. EIGHTFOLD AND ITS AFFILIATES WILL NOT BE LIABLE TO CUSTOMER UNDER THIS AGREEMENT FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT OR OTHERWISE), INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF GOODWILL OR REPUTATIONAL HARM, OR LOSS OF OR CORRUPTION OF INFORMATION OR DATA, COST OF SUBSTITUTE SERVICE, IN EACH CASE, WHETHER OR NOT CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2. GENERAL LIABILITY CAP. EIGHTFOLD’S MAXIMUM AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS AND DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, STATUTE OR OTHERWISE, SHALL NOT EXCEED $1,000. THIS LIMITATION OF LIABILITY IS EXCLUSIVE AS TO ALL REMEDIES AND THE LIABILITY CAP SHALL NOT BE COMBINED WITH ANY OTHER LIMITS OF LIABILITY SO AS TO INCREASE THE CAP VALUE IN ANY INSTANCE OR SERIES OF INSTANCES. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION, EIGHTFOLD’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE.
10. General provisions
10.1. Severability; Waiver; Entire Agreement. In the event that any provision contained in this Agreement is found by any competent authority to be unlawful, unenforceable or invalid to any extent, that provision, in whole or in part, shall to that extent be limited or severed from the remaining provisions which will otherwise continue to be valid and remain enforceable to the fullest extent permitted by law. This Agreement, including all exhibits and addendums (including any applicable DPA) are the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by duly authorized representatives of both parties, specifically referencing this Agreement. Preprinted or linked terms in Customer purchase orders or other customer-generated ordering documents have no effect on this Agreement. The parties do not intend to create in any other individual or entity the status of a third party beneficiary, and this Agreement shall not be construed so as to create such status. Customer acknowledges and agrees that a third party (including candidates) may elect to create accounts with Eightfold under applicable agreements, and that nothing contained herein will limit Eightfold’s rights thereunder in relation to such third parties.
10.2. Assignment. Neither party may assign or transfer any of its rights or obligations under this Agreement without the other party’s prior written consent, which shall not be unreasonably withheld, except that no consent shall be required for an assignment in whole of this Agreement by Eightfold to a successor of substantially all of its assets or business related to this Agreement, provided that prior written notice is given and that the assignee shall agree in writing to assume all of the assignor’s obligations under this Agreement. Any attempted assignment in violation of this Section will be null and void and have no effect. Subject to the foregoing, the Agreement will inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.
10.3. Force Majeure. Neither party shall be liable to the other for any failure or delay in performance of any of the obligations under this Agreement, arising out of any event or circumstance beyond the reasonable control of such party, including war, terrorist act, rebellion, civil commotion, fire, explosion, earthquake, failure or diminishment of power or telecommunications or data networks or services, and acts of God.
10.4. Subcontractors. Eightfold may use the services of subcontractors for performance of the Services under this Agreement, provided that Eightfold remains responsible for compliance of any such subcontractor with the terms of this Agreement, as well as all applicable laws. Eightfold will vet such subcontractors’ professional skills and data security practices and select appropriate subcontractors to fit the need and timing of the Services to Customer. If the applicable Services require performance of the Services at Customer’s premises, prior notice of subcontractor visits to Customer will be required and Eightfold will remain responsible for compliance with Customer’s reasonable safety standards and protocols as provided by Customer to Eightfold in writing.
10.5. Independent Contractors. The parties are independent contractors. Nothing in this Agreement shall create an agency, partnership, joint venture, or employment relationship and neither party (nor any agent or employee of such party) will make any representations or warranties or incur any liability on behalf of the other.
10.6. Export Law Compliance. Each party will comply with the export laws and regulations of the United States, European Union and other applicable jurisdictions in providing and using the Services. Each party represents that it is not on any U.S. government list of persons or entities with whom U.S. persons are prohibited from transacting; nor owned or controlled by, or acting on behalf of or allowing the use of the Services by, any such persons or entities. Customer shall not permit Authorized Users to access or use any Services in a U.S.-embargoed country or in violation of any U.S. export law or regulation.
10.7. Anti-Bribery and Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of the other party’s employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly notify Eightfold’s legal department at legal@eightfold.ai.
10.8. Government Terms. Eightfold provides the Services, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement. If Customer is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement. All other use is prohibited and no rights other than those provided in this Agreement are conferred. The Services were developed fully at private expense.
10.9. Notice. Except as otherwise provided in this Agreement, each party shall deliver all notices, requests, consents, claims, demands, waivers, and other communications under this Agreement in writing and addressed to the other party at the applicable address set forth on the first page of this Agreement with attention to the receiving party’s Legal Department (or to such other address that the receiving party may designate from time to time in accordance with this section). Each party shall deliver all notices by email, internationally recognized overnight courier (with all fees prepaid), or certified or registered U.S. mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a notice is effective only (a) upon receipt by the receiving party and (b) if the party giving the notice has complied with the requirements of this section. For any notice where Customer is the notifying party, Customer shall also provide a courtesy copy of such notice by email to Eightfold at legal@eightfold.ai.
11. Governing law; Binding arbitration and class action waiver
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
11.1. Governing Law. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions.
11.2. Initial Dispute Resolution. Customer agrees that before taking any formal legal action under this Agreement, Customer shall provide written notice to Eightfold of the specific issue(s) in dispute, including reference to the relevant provision(s) of the Agreement which are allegedly being breached. Within thirty (30) days after such notice, representatives of each of the parties shall hold at least one meeting (in person or by video- or tele-conference) for the purpose of attempting, in good faith, to resolve the dispute.
11.3. Binding Arbitration. If the parties do not reach an agreed-upon solution within a period of 30 days from the time informal dispute resolution begins under the Initial Dispute Resolution provision set forth in Section 11.2, then either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to this Agreement (including their formation, performance, and breach), the parties’ relationship with each other and/or Customer’s use of the Eightfold Services shall be finally settled by binding arbitration administered by JAMS in accordance with the provisions of its Streamlined Arbitration and Procedures, excluding any rules or procedures governing or permitting class or representative actions. Except as set forth in Section 11.6, the arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement, including, but not limited to any claim that all or any part of this Agreement are void or voidable, whether a claim is subject to arbitration, and any dispute regarding the payment of JAMS administrative or arbitrator fees (including the timing of such payments and remedies for nonpayment). The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The parties agree that the arbitrator may allow the filing of dispositive motions if they are likely to efficiently resolve or narrow issues in dispute. The arbitrator’s award shall be in writing and binding on the parties and may be entered as a judgment in any court of competent jurisdiction. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. The Streamlined Arbitration Rules governing the arbitration may be accessed at www.jamsadr.com or by calling JAMS at (800) 352-5267. The party initiating arbitration is responsible for paying the costs of filing, and the arbitrator’s fees will be shared equally between the parties. Customer is responsible for its own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise. Any arbitration demand or counterclaim asserted by either party must contain sufficient information to provide fair notice to the other party of the asserting party’s identity, the claims being asserted, and the factual allegations on which they are based, and the arbitrator and/or JAMS may require amendment of any demand or counterclaim that does not satisfy these requirements. The arbitrator has the right to impose sanctions in accordance with JAMS Rule 24 for any claims the arbitrator determines to be frivolous or improper (under the standard set forth in Federal Rule of Civil Procedure 11). The parties agree that JAMS has discretion to modify the amount or timing of any administrative or arbitration fees due under JAMS’s Rules where it deems appropriate, provided that such modification does not increase the costs to Customer, and Customer waives any objection to such fee modification. The parties also agree that a good-faith challenge by either party to the fees imposed by JAMS does not constitute a default, waiver, or breach of this Section 11 while such challenge remains pending before JAMS, the arbitrator, and/or a court of competent jurisdiction. The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
11.4. Location. Arbitration shall take place in Santa Clara, California, or another location mutually agreed to by the parties.
11.5. Class Action Waiver. The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. CUSTOMER AND EIGHTFOLD AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If there is a final judicial determination that applicable law precludes enforcement of this Section’s limitations as to a particular remedy, then that remedy (and only that remedy) must be severed from the arbitration and may be sought in court. The parties agree, however, that any adjudication of remedies not subject to arbitration shall be stayed pending the outcome of any arbitrable claims and remedies.
11.6. Exception – Litigation of Intellectual Property and Small Claims Court Claims. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring an action in state or federal court to protect its intellectual property rights (where “intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also elect to have disputes or claims resolved in a small claims court for claims within the scope of that court’s jurisdiction. Either party may also seek a declaratory judgment or other equitable relief in a court of competent jurisdiction regarding whether a party’s claims are time-barred or may be brought in small claims court in Customer’s state and county of residence. Seeking such relief shall not waive a party’s right to arbitration under this Agreement..
11.7. 30 Day Right to Opt-Out. Customer has the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of its decision to opt-out to the following address: Eightfold AI Inc. 2526 Augustine Dr, Suite 601, Santa Clara, CA 95054 , Attn: Legal or legal@eightfold.ai. The notice must be sent within 30 days of Customer’s assent to this Agreement; otherwise, Customer shall be bound to arbitrate disputes in accordance with the terms of this Section. If Customer opts-out of these arbitration provisions, Eightfold also will not be bound by them.
11.8. Changes to this Section. Eightfold will provide 30 days’ notice of any changes to this Section 11; changes will become effective on the 30th day. If Customer continues to use the Eightfold Services after the 30th day, it agrees that any unfiled claims of which Eightfold does not have actual notice are subject to the revised clause.
11.9. Jurisdiction. For any dispute not subject to arbitration, Customer and Eightfold agree to submit to the personal and exclusive jurisdiction of and venue in the federal and state courts located in Santa Clara, California. Customer further agrees to accept service of process by mail, and hereby waives any and all jurisdictional and venue defenses otherwise available.