Last updated January 8, 2026
These Terms of Service (the "Terms") constitute a legally binding agreement made between you, the natural person or entity that has agreed to be bound by these Terms ("you"), and Embedded Foundry, Inc. ("Embedded Foundry," "we," or "us"), concerning your access to and use of the Alpha Service (as defined below). The Alpha Service is offered subject to your acceptance of all terms and conditions set forth herein.
PLEASE READ THESE TERMS CAREFULLY. BY CLICKING "I ACCEPT" OR BY ACCESSING OR USING THE ALPHA SERVICE IN ANY MANNER, YOU: (A) ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS AND BY SUCH OTHER TERMS, CONDITIONS, POLICIES, AND DOCUMENTS THAT MAY BE INCORPORATED HEREIN BY REFERENCE, INCLUDING, WITHOUT LIMITATION, THE EMBEDDED FOUNDRY PRIVACY POLICY; (B) AFFIRM THAT YOU ARE AT LEAST 18 YEARS OF AGE (OR HAVE REACHED THE AGE OF MAJORITY IN THE JURISDICTION WHERE YOU RESIDE); AND (C) IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF A COMPANY OR OTHER ORGANIZATION, REPRESENT AND WARRANT THAT YOU HAVE THE ORGANIZATIONAL AND LEGAL AUTHORITY TO ACCEPT THESE TERMS ON SUCH COMPANY'S OR OTHER ORGANIZATION'S BEHALF AND TO BIND SUCH COMPANY OR ORGANIZATION. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ACCESS OR USE THE ALPHA SERVICE IN ANY MANNER.
THESE TERMS MAY REQUIRE THE USE OF BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES RATHER THAN JURY TRIALS OR CLASS ACTIONS, IN ACCORDANCE WITH THE TERMS OF SECTION 21 (DISPUTE RESOLUTION) BELOW.
EMBEDDED FOUNDRY MAY REFUSE ACCESS TO OR USE OF THE ALPHA SERVICE FOR NONCOMPLIANCE WITH ANY PART OF THESE TERMS. THESE TERMS ARE VOID WHERE PROHIBITED BY LAW, AND ANY RIGHTS TO ACCESS OR USE THE ALPHA SERVICE ARE REVOKED IN SUCH JURISDICTIONS.
Embedded Foundry has developed an AI-powered, autonomous firmware creation engine, accessible through its website with a homepage at https://embeddedfoundry.com/, including such subdomains and other websites and applications as Embedded Foundry may designate from time to time (the "Site"), and including all features, content, tools, applications, application program interfaces, widgets and other services included on or available through the Site (collectively with the Site, the "Alpha Service"). The Alpha Service is in an early, pre-release stage, and Embedded Foundry is willing to make the Alpha Service available to you, subject to and in accordance with these Terms, in order to allow you to evaluate the Alpha Service and provide feedback to Embedded Foundry with respect to the same.
Embedded Foundry reserves the right to modify or change these Terms, in whole or in part, at any time and in its sole discretion. Any modifications or changes to these Terms will be effective immediately upon posting to the Site or to the Alpha Service, unless otherwise specified in the updated Terms. Your continued access to and use of the Alpha Service confirms your acceptance of these Terms and any changes or modifications made to these Terms. You should review these Terms and the Privacy Policy frequently and ensure you understand all terms, conditions, and policies applicable to your access to and use of the Alpha Service.
Subject to your compliance with these Terms, Embedded Foundry hereby grants to you a limited, non-exclusive, non-transferrable, revocable right to access and use the Alpha Service solely for your internal evaluation and testing purposes. Your access to and use of the Alpha Service is subject to such limitations and restrictions as may be set forth in these Terms or in the relevant user documentation. Embedded Foundry may suspend or terminate your access to the Alpha Service or any component thereof at any time and for any reason, including if Embedded Foundry determines you have violated these Terms. We may modify, discontinue, or replace the Alpha Service or any portion thereof from time to time in our sole discretion and without prior notice to you.
In order to access and use the Alpha Service or certain features thereof, you may be required to establish one or more Embedded Foundry profiles and user accounts (each, a "User Account"). You must provide true, accurate, current, and complete information as prompted by the applicable registration form, and you are responsible for keeping such information up to date. You are responsible and liable for all activities conducted through your User Account(s), regardless of who conducts those activities. You are responsible for maintaining the confidentiality of any user IDs, passwords and other credentials associated with your User Account(s), and you may not share your access credentials with any other individuals or permit any other individuals to access the Alpha Service through your User Account. You are responsible and liable for the acts and omissions of anyone accessing the Alpha Service through your User Account or on your behalf, including, without limitation and if you are an enterprise, your employees and contractors. You shall immediately notify Embedded Foundry of any actual or suspected unauthorized access to or use of any of your User Accounts or any associated user IDs, passwords, or other credentials. You will cooperate fully with Embedded Foundry and take all actions that Embedded Foundry reasonably deems necessary to maintain or enhance the security of the Alpha Service or Embedded Foundry's computing systems and networks. Embedded Foundry is not and shall not be deemed liable for any loss or damage to you or any third party arising from your failure to comply with this Section 4.
You agree to access and use the Alpha Service solely for your internal evaluation and testing purposes, in accordance with any Embedded Foundry user documentation, and in accordance with all applicable laws. You shall not: (i) copy, reproduce, frame, mirror, modify, decompile, disassemble, create derivative works based on, or reverse engineer the Alpha Service or any associated software or materials (except to the extent that applicable law prohibits or restricts reverse engineering restrictions); (ii) provide any third parties with access to any of the Alpha Service, or use any of the Alpha Service for time sharing or similar purposes for the benefit of any third party; (iii) sell, resell, rent or lease the Alpha Service; (iv) remove any copyright or proprietary notices contained in the Alpha Service or any output thereof; (v) breach, disable or tamper with, or develop or use (or attempt) any workaround for, any security measure provided or used by the Service; (vi) access the Alpha Service via any bot, web crawler or non-human user; (vii) access or use (or permit a third party to access or use) the Alpha Service for any unlawful purpose or for purposes of monitoring the availability, performance or functionality of the Alpha Service or for any other benchmarking or competitive purposes; (viii) attempt to gain unauthorized access to the Alpha Service or any related systems, software or networks; (ix) access the Alpha Service in order to build a competitive product or service, or copy any features or functions of the Alpha Service; (x) overload or interfere with the proper function of the Alpha Service; (xi) use the Alpha Service to transmit viruses or malicious code; (xii) use the Alpha Service for production, commercial, or mission-critical purposes; or (xiii) make any use of, or take any other action with respect to, the Alpha Service or any component thereof in a manner that violates applicable law, any provision of these Terms, or any contractual obligations to third parties to which you are bound.
In connection with and to facilitate your use of the Alpha Service, you may input, upload or otherwise submit certain information, data, data sheets, materials, or other content to the Alpha Service (collectively, "User Data"). As between you and Embedded Foundry, you are solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all User Data. You will not input, upload, or otherwise submit, directly or indirectly, any User Data or other information, materials, or content that: (a) infringes the intellectual property rights, rights of privacy or publicity, or other proprietary rights of any third party; (b) violates any applicable law; or (c) contains any malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code. By inputting, uploading, or otherwise submitting any User Data to or with respect to the Alpha Service, you represent and warrant to Embedded Foundry that you have all rights, licenses, and consents necessary to provide such User Data to Embedded Foundry and the Alpha Service and to permit the processing thereof as contemplated hereunder. You acknowledge that the Alpha Service is not designed with security and access management for processing or storing any personal information that imposes specific data security obligations on Embedded Foundry for the processing or storage of such data, including, without limitation, any "nonpublic personal information" as defined under the Gramm-Leach-Bliley Act, cardholder, payment card, or related information protected by the Payment Card Industry Data Security Standard, "protected health information" as defined under the Health and Insurance Portability and Accountability Act of 1996, "personal information" as defined under the California Consumer Privacy Act of 2018 (as amended), "personal data" as defined under the General Data Protection Regulation, or other information similar to any of the foregoing, however described, as defined under applicable law (each of the foregoing, "Prohibited Content"). You shall not provide any Prohibited Content to, or upload or submit any Prohibited Content through, the Alpha Service. You are solely responsible for reviewing all User Data and you represent and warrant to Embedded Foundry that no User Data constitutes or contains Prohibited Content. Embedded Foundry makes no representations or warranties with respect to, and disclaims any responsibility or liability for, your User Data, and you will indemnify Embedded Foundry for any failure by you to comply with the requirements of this Section 6(a).
The Alpha Service is designed to allow you to autonomously generate production-ready firmware code. As between you and Embedded Foundry, you are solely and exclusively responsible for your processing of User Data by means of the Alpha Service, for any code, products, software, results, or outputs generated by such processing ("User-Generated Content"), and for any use of or reliance on such User-Generated Content by you or any third party. Embedded Foundry has no control over, and makes no representations or warranties with respect to, the availability, accuracy, quality, or reliability of any User Data or User-Generated Content generated through use of the Alpha Service, and Embedded Foundry shall not have any responsibility or liability to you or any third party with respect to the same. You understand and acknowledge that any User-Generated Content you create through the Alpha Service is a function of your User Data and, where applicable, the interaction of the same with certain artificial intelligence tools. Embedded Foundry does not, and is not obligated to, monitor or review User-Generated Content, including, without limitation, to confirm its accuracy, legality, appropriateness, or otherwise, and Embedded Foundry disclaims any responsibility for or obligation with respect to User-Generated Content. Embedded Foundry makes no representations or warranties whatsoever that any User-Generated Content is or will be (i) accurate, appropriate, or in compliance with applicable laws; (ii) unique to you and not substantially similar to any content generated by other users of the Alpha Service; or (iii) copyrightable or otherwise subject to legal ownership by you. As between you and Embedded Foundry, you are solely and exclusively responsible for any User-Generated Content you create and for your use thereof, and for determining the legality, appropriateness, and suitability of the User-Generated Content, both independently and in the context of your intended use.
You acknowledge that for Embedded Foundry to deliver the Alpha Service to high levels of quality, Embedded Foundry requires the freedom to apply its algorithms, know-how and methodology. Accordingly, and notwithstanding anything in these Terms to the contrary, Embedded Foundry shall have the right to collect, examine, extract, model, manipulate, aggregate, collate, analyze, create analysis using, reproduce and otherwise use, on a de-identified basis, any data or other information that Embedded Foundry learns, acquires, is provided, or obtains in connection with these Terms and its provision of the Alpha Service hereunder (including, without limitation, User Data, User-Generated Content, and performance and usage data with respect to your use of and interactions with the Alpha Service) within the scope of its regular business operations, including, without limitation, (i) developing, operating, training, and ensuring the integrity of our data sets, artificial intelligence models, algorithms and other analytical tools, (ii) testing, implementing, benchmarking, integrating, developing, optimizing, improving and conducting quality assurance testing with respect to our software and other products and services, (iii) conducting research studies, and (iv) marketing, distributing, and otherwise making our products and services available to Embedded Foundry's customers and other third parties.
You agree and acknowledge that Embedded Foundry is not a provider of data back-up, archiving, or data retention services. As between you and Embedded Foundry, you are solely and exclusively responsible for the backing up, archiving, and retaining of all User Data, User-Generated Content, and any other of your information, data, or materials. Embedded Foundry does not make any representations, warranties or guarantees that any User Data, User-Generated Content, or other of your information, data or materials will not be lost, altered, destroyed, damaged, or corrupted. EMBEDDED FOUNDRY HAS NO OBLIGATION OR LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF ANY USER DATA, USER-GENERATED CONTENT, OR OTHER OF YOUR INFORMATION, DATA, OR MATERIALS THROUGH OR IN CONNECTION WITH YOUR USE OF THE ALPHA SERVICE.
You acknowledge and agree that Embedded Foundry does not, nor is it obligated to, monitor or police any data, code, information, materials, software or content (including User Data and User-Generated Content) transmitted through, posted to, generated by, or otherwise available or viewable on the Site or the Alpha Service, and Embedded Foundry will not be responsible for such data, code, information, materials, software or content (including User Data and User-Generated Content). Notwithstanding the foregoing, however, Embedded Foundry may, at its option and in its sole discretion, monitor and review or remove or delete from the Site or the Alpha Service any data, code, information, materials, software or content (including any User Data or User-Generated Content) that Embedded Foundry determines violates these Terms in any manner, or that Embedded Foundry otherwise determines is, or is likely to be, hazardous, objectionable, or exposes Embedded Foundry or any of its licensors, service providers, or other users of the Alpha Service to risk of danger or liability.
Your access to and use of the Alpha Service is dependent upon access to telecommunications and Internet services. You acknowledge that Embedded Foundry is not responsible for acquiring or maintaining any telecommunications or Internet services or other hardware or software that you may need to access and use the Alpha Service or for any costs, fees, expenses, or taxes of any kind related to the foregoing.
These Terms shall remain in full force and effect while you use or have access to the Alpha Service. Embedded Foundry may terminate or restrict your access to any or all of the Alpha Service or to your User Account for any reason, including, without limitation, if Embedded Foundry determines that you have violated any provision of these Terms. Any termination of these Terms is without prejudice to any rights or obligations of the parties accrued up to and including the date of termination. Upon termination of these Terms, you shall immediately cease all access to and use of the Alpha Service and delete from your records, systems, and equipment all tools, documentation, software, or other items made available to you as part of the Alpha Service.
Although the Alpha Service is currently made available to you on a no-fee basis, as consideration for your access to and use of the Alpha Service, you agree to provide Embedded Foundry with such feedback, comments, evaluation results, suggestions, and other input with respect to the Alpha Service (collectively, "Feedback") as Embedded Foundry may request from time to time. You hereby assign and agree to assign to Embedded Foundry all right, title and interest in and to such Feedback, including any intellectual property rights therein, and agree that Embedded Foundry will be free to use such Feedback in any manner, including by implementing such Feedback in the Alpha Service and/or Embedded Foundry's other technologies, products and services, without compensation or other obligation to you.
You acknowledge and agree that information collected by Embedded Foundry is subject to our Privacy Policy. By accessing or using the Alpha Service in any manner, you consent to all actions we take with respect to your information in compliance with our Privacy Policy.
As between you and Embedded Foundry, the Alpha Service (including, without limitation, the Site) and all software and other technologies embodied in or used to provide the same, and all intellectual property rights therein or relating thereto (collectively, "Embedded Foundry IP"), are and shall remain the exclusive property of Embedded Foundry and its licensors. No rights are granted to you other than as expressly set forth herein.
As between you and Embedded Foundry, but subject to the license granted in Section 6(c) hereof, you own all right, title and interest in and to your User Data and, except to the extent containing or based on any Embedded Foundry IP, User-Generated Content.
You acknowledge and agree that, in addition to the rights granted to Embedded Foundry pursuant to Section 6(c) hereof, Embedded Foundry may monitor your use of the Alpha Service and may track and compile data and information related to such use, including, without limitation, statistical and performance information related to the provision and operation of the Alpha Service ("Aggregated Statistics"). As between you and Embedded Foundry, Embedded Foundry is the sole and exclusive owner of all Aggregated Statistics and all intellectual property rights therein or relating thereto. Embedded Foundry may, without limitation, (a) make such Aggregated Statistics publicly available, (b) use the Aggregated Statistics to the extent and in the manner required by applicable law or regulation, and (c) use the Aggregated Statistics to maintain, optimize and improve the Alpha Service, to develop, improve, or offer other Embedded Foundry products or services, or to otherwise operate Embedded Foundry's business.
"Confidential Information" means (subject to the exclusions below) any proprietary or non-public information relating to or disclosed by Embedded Foundry, directly or indirectly, to you that should be reasonably understood to be confidential. Confidential Information shall include, but shall in no way be limited to (a) the Alpha Service and any related software, source code, object code, tools, algorithms, models, architectures, designs, workflows, APIs, features, functions, roadmaps, documentation, specifications, and technical data, (b) Embedded Foundry's product plans, development plans, pricing, business strategies, marketing plans, customer lists, and financial information, (c) performance data, benchmarks, test results, error data, analytics, and usage information relating to the Alpha Service, (d) the existence, scope, and provisions of these Terms and your participation in the alpha program, and (e) all derivatives, summaries, analyses, compilations, and other materials prepared by you or on your behalf and that contain or reflect any of the foregoing. You (i) will use all reasonable efforts to protect the Confidential Information from unauthorized use and disclosure, (ii) will not disclose the Confidential Information to any third party without the prior written authorization of Embedded Foundry, and (iii) will use the Confidential Information only for the purpose expressly permitted under these Terms. Except to the extent this prohibition is void under applicable law, you shall not modify, create other works from, reverse engineer, disassemble, or decompile any prototypes, equipment, software, samples, or other tangible objects or technology constituting or containing Confidential Information.
You will promptly return or destroy any Confidential Information your possession or control upon the earlier to occur of (i) Embedded Foundry's request, or (ii) termination of these Terms. You will, upon written request of Embedded Foundry, confirm your compliance with the requirements of this Section in a signed writing.
If you are required by law, regulation, or court order to disclose any Confidential Information, you shall (to the extent legally permitted) provide Embedded Foundry with prompt written notice and reasonably cooperate with Embedded Foundry in seeking protective treatment or limiting the scope of such disclosure. You shall disclose only that portion of Confidential Information that you are legally required to disclose.
You shall not issue any press release or make any public statement regarding the Alpha Service or your participation in the alpha program without Embedded Foundry's prior written consent.
Embedded Foundry will use commercially reasonable efforts to maintain appropriate physical, administrative, and technical safeguards to protect against the unauthorized accessing, use, destruction, corruption, loss or alteration of User Data or User-Generated Content in a manner appropriate in light of the level of sensitivity of such data. Embedded Foundry will use commercially reasonable efforts to promptly notify you (or, if applicable, the subscribing entity) of any material breach of security with respect to such party's User Data or User-Generated Content in Embedded Foundry's control or possession.
The Alpha Service may contain links to, utilize, integrate with, or allow you to access third party websites, applications, artificial intelligence tools and/or services (collectively, "Third Party Services") that are not owned or controlled by Embedded Foundry. When you access Third Party Services, directly or by means of the Alpha Service, you do so at your own risk. Embedded Foundry encourages you to be aware when you leave the Site and/or the Alpha Service and to read the terms and conditions and privacy policy of each Third Party Service (collectively, "Third Party Terms") that you visit or from which you access any product or service. Embedded Foundry has no control over, and assumes no responsibility for, the content, accuracy, Third Party Terms, or practices of any Third Party Service. In addition, Embedded Foundry will not and cannot monitor, verify, censor, or edit the content of any Third Party Service. When you visit or use any Third Party Service, directly or through the Alpha Service, you acknowledge that such Third Party Service is subject to the applicable Third Party Terms, and you release us from any liability arising from your use of such Third Party Service. You acknowledge that we are not responsible for such third parties or their products or services. Any such activities, and any Third Party Terms associated with such activities, are solely between you and the applicable third party.
YOU UNDERSTAND THAT THE ALPHA SERVICE IS MADE AVAILABLE TO YOU ON AN EARLY-STAGE, PRE-RELEASE BASIS ONLY, AND ACCORDINGLY IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. EMBEDDED FOUNDRY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, TITLE, AND NON-INFRINGEMENT. NEITHER EMBEDDED FOUNDRY NOR ANY PERSON ASSOCIATED WITH EMBEDDED FOUNDRY MAKES ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE ALPHA SERVICE. WITHOUT LIMITING THE FOREGOING, NEITHER EMBEDDED FOUNDRY NOR ANYONE ASSOCIATED WITH EMBEDDED FOUNDRY REPRESENTS OR WARRANTS THAT THE ALPHA SERVICE OR ANY RESULTS, DATA OR OUTPUTS GENERATED THEREFROM OR ACCESSED OR AVAILABLE THERETHROUGH (INCLUDING, WITHOUT LIMITATION, ANY USER DATA OR USER-GENERATED CONTENT) WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE ALPHA SERVICE OR THE SERVERS THAT MAKE THE ALPHA SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE ALPHA SERVICE OR ANY DATA, INFORMATION, OR RESULTS MADE AVAILABLE TO YOU, ACCESSED BY YOU, OR GENERATED BY YOU OR ON YOUR BEHALF IN CONNECTION THEREWITH (INCLUDING, WITHOUT LIMITATION, ANY USER DATA OR USER-GENERATED CONTENT) WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. AS BETWEEN YOU AND EMBEDDED FOUNDRY, YOU ASSUME ALL RISK IN CONNECTION WITH YOUR USE OF, INTERPRETATION OF, AND RELIANCE ON THE ALPHA SERVICE AND ALL CONTENT, RESULTS, AND OUTPUTS GENERATED THEREBY, AND ALL DATA AND INFORMATION AVAILABLE OR ACCESSIBLE THERETHROUGH (INCLUDING, WITHOUT LIMITATION, ALL USER DATA AND USER-GENERATED CONTENT). EMBEDDED FOUNDRY DISCLAIMS ALL RESPONSIBILITY FOR, AND WILL HAVE NO LIABILITY WITH RESPECT TO, THE CONDUCT OR PRODUCTS OF THIRD PARTIES. EMBEDDED FOUNDRY SHALL HAVE NO RESPONSIBILITY OR LIABILITY WHATSOEVER FOR ANY USER DATA OR USER-GENERATED CONTENT, OR FOR ANY LOSS, DAMAGE, OR OTHER ISSUE CAUSED BY THE UNAVAILABILITY, INCOMPLETENESS, OR INACCURACY OF THE SAME. YOU UNDERSTAND AND ACKNOWLEDGE THAT YOU ARE SOLELY AND EXCLUSIVELY RESPONSIBLE FOR YOUR USE OF THE ALPHA SERVICE AND FOR YOUR CREATION AND/OR USE OF ANY USER-GENERATED CONTENT, AND YOU ACCEPT ALL RISKS WITH RESPECT TO ANY ACTIONS YOU TAKE WITH RESPECT TO THE SITE, THE ALPHA SERVICE, AND ANY OUTPUT OR PRODUCT THEREOF.
You agree to indemnify, defend, and hold Embedded Foundry and its officers, directors, employees, agents, licensors, and service providers harmless from and against any claims, liabilities, losses, damages, judgments, awards, costs, and expenses (including reasonable attorneys' fees) arising out of or relating to (i) your access to or use of the Alpha Service, (ii) your violation of these Terms or applicable law; (iii) any claim that the User Data infringes, misappropriates, or otherwise violates the intellectual property rights or rights of privacy or publicity of any third party; (iv) any upload or submission of Prohibited Content to the Alpha Service by or by means of you or on your behalf; and (v) your use of any User Data or User-Generated Content or other data, materials, or information accessed or generated by you or on your behalf through the Alpha Service. Embedded Foundry reserves the right, at its own expense, to assume the exclusive defense and control of any action subject to indemnification under this Section, and in such event you agree to cooperate with Embedded Foundry in defending such action.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EMBEDDED FOUNDRY OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, OR SERVICE PROVIDERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING FROM OR RELATED TO YOUR ACCESS TO, USE OF, OR INABILITY TO ACCESS OR USE THE ALPHA SERVICE, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE, LOSS OF DATA, DAMAGE TO OR LOSS OF PROPERTY, OR PERSONAL INJURY OR DEATH, WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE. IF EMBEDDED FOUNDRY IS NONETHELESS FOUND LIABLE FOR ANY LOSS OR DAMAGE UNDER ANY LEGAL THEORY RELATING IN ANY WAY TO THE SUBJECT MATTER OF THESE TERMS, IN NO EVENT WILL EMBEDDED FOUNDRY'S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY EXCEED THE TOTAL AMOUNT OF FEES, IF ANY, PAID BY YOU TO EMBEDDED FOUNDRY IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT FIRST GIVING RISE TO THE CLAIM. IF YOU ARE NOT SATISFIED WITH THE ALPHA SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO CEASE ALL ACCESS TO AND USE OF THE ALPHA SERVICE.
Some jurisdictions do not allow the limitation of liability for incidental or consequential damages or other damages or liability, so the foregoing limitations may not apply to you. To the extent that in a particular circumstance any limitation on damages or liability set forth in this Section is prohibited by applicable law, then, instead of the provisions hereof in such particular circumstance, Embedded Foundry shall be entitled to the maximum limitations on damages and liability available at law and equity in that particular circumstance.
You and Embedded Foundry understand and agree that the disclaimers, exclusions, and limitations in this Section 18 and in Section 16 are essential elements of these Terms and that they represent a reasonable allocation of risk. In particular, you understand that Embedded Foundry would be unable to make the Alpha Service available to you except on these terms and agree that these Terms will survive and apply even if any limited remedy specified in these Terms is found to have failed of its essential purpose.
Using the Alpha Service may be prohibited or restricted in certain countries. If you access or use any component of the Alpha Service from outside of the United States, you are responsible for complying with the laws and regulations of the applicable territory. Without limiting the foregoing, if you attempt to use the Site or the Alpha Service from a physical location in the European Union, United Kingdom, Asia, or any other region with laws or regulations governing personal data collection, use, and disclosure that differ from United States laws, please be advised that through your continued use of the Site or the Alpha Service, which is governed by U.S. law and these Terms (including the Embedded Foundry Privacy Policy): (i) you are transferring your personal information to the United States; and (ii) you hereby consent to such transfer, to the application of the laws of the United States and the State of Delaware with respect to any dispute arising from or related to the Privacy Policy and your use of the Alpha Service, and to the exclusive jurisdiction of the courts of the United States.
Embedded Foundry is committed to respecting and protecting the legal rights of copyright owners in accordance with the Digital Millennium Copyright Act (Section 512(c)(3) of the DMCA (17 U.S.C. § 512 et seq.)). If you believe any content infringes your intellectual property rights, please submit a notice to us describing such infringement (a "DMCA Takedown Notice") with the following information:
Any DMCA Takedown Notice should be sent to: support@embeddedfoundry.com. You acknowledge that for Embedded Foundry to be authorized to takedown any content, your DMCA Takedown Notice must comply with all of the requirements of this Section.
Please read this Section carefully. It impacts the rights that you may otherwise have. It provides for resolution of most disputes through individual arbitration instead of trial courts and class actions. This "Dispute Resolution" section survives any expiration or earlier termination of these Terms.
As a condition precedent which must be satisfied prior to initiating any arbitration or other action against the other party, both you and Embedded Foundry agree to the following dispute resolution procedure: In the event of any controversy, claim, action or dispute arising out of or related to the Site or the Alpha Service, or the breach, enforcement, interpretation, or validity of these Terms ("Claim"), the party asserting the Claim must first try in good faith to settle such Claim by providing written notice, by first class or registered mail, to the other party describing the facts and circumstances (including any supporting documentation) of the Claim. The party asserting the Claim must allow the receiving party 30 days in which to respond to or settle the Claim.
For purposes of this Section, notices must be sent as follows:
To the extent you cannot resolve any Claim through the informal dispute resolution procedure set forth above, and except as otherwise set forth herein, a Claim must be resolved through binding individual arbitration. You agree to give up your right to go to court to assert or defend your rights under these Terms and with respect to any Claim. You and Embedded Foundry each expressly delegate to the arbitrator the authority to determine the arbitrability of any Claim, including the scope, applicability, validity, and enforceability of this arbitration provision.
To begin an arbitration proceeding, you must send a written request to Embedded Foundry by email at support@embeddedfoundry.com. You agree that the arbitration will be conducted by the American Arbitration Association ("AAA") pursuant to its Consumer Arbitration Rules ("AAA Rules"), as modified by this arbitration agreement. The AAA Rules are available on the AAA's website www.adr.org, or by calling the AAA at (800) 778-7879. In accordance with the AAA Rules, you must also send a copy of your written demand for arbitration to AAA when submitting your request to Embedded Foundry. In the event that the AAA is unable or unwilling to initiate arbitration within fourteen (14) days of receiving a demand for arbitration, arbitration may be conducted by JAMS, Inc. (in accordance with its Streamlined Arbitration Rules & Procedures) or by any other mutually agreeable arbitration administration service. You and Embedded Foundry each agree that these Terms evidence a transaction in interstate commerce and that this arbitration provision will be interpreted and enforced in accordance with the U.S. Federal Arbitration Act and federal arbitration law and will not be governed by state law. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. The arbitration will be conducted in the English language. An arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory relief to the extent required to satisfy your individual claim, and must follow and enforce these Terms as a court would. Any arbitration shall be confidential, and neither you nor Embedded Foundry may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award. Judgment on any arbitration award may be entered in any court having proper jurisdiction.
In lieu of arbitration, and notwithstanding anything in this section to the contrary, either you or Embedded Foundry may bring any individual claim in small claims court consistent with the jurisdictional and dollar limits that may apply, but only if it is brought and maintained as an individual claim. Additionally, and notwithstanding anything herein to the contrary, nothing in this section shall prohibit you or Embedded Foundry from seeking temporary injunctive relief in a court of competent jurisdiction to prevent an imminent or stop an actual breach of these Terms.
You and Embedded Foundry each agree that any proceeding, whether in arbitration or in court, will be conducted only on an individual basis and not in a class, consolidated or representative action. If a court or arbitrator determines in an action between you and Embedded Foundry that this class action waiver is unenforceable, the arbitration agreement set forth above will be void as to you. If for any reason a Claim proceeds in court rather than through arbitration, you waive any right to a jury trial.
You agree and acknowledge that the Alpha Service, or any component thereof, may be temporarily unavailable due to maintenance or other development activities. Embedded Foundry shall not have any liability to you or any third party for any unavailability or downtime, whether unplanned or otherwise.
You may not assign or transfer these Terms or any of your rights or obligations hereunder to any other person without Embedded Foundry's prior written consent. Any purported assignment in violation of this paragraph is void and of no effect. These Terms are freely assignable by Embedded Foundry. These Terms shall be binding on the parties and their permitted successors and assigns. Except as otherwise set forth herein, a person who is not a party to these Terms has no right to benefit under or to enforce any term of these Terms.
We will not be liable for any delay or failure in the performance of our obligations under these Terms if the delay or failure is due to any cause outside of our reasonable control.
These Terms and any dispute or claim arising out of or related to these Terms, their subject matter, or their formation (in each case, including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the State of Delaware, other than such laws and case law that would result in the application of the laws of a jurisdiction other than the State of Delaware. The United Nations Convention on Contracts for the International Sale of Goods shall have no applicability.
Except as otherwise set forth herein, any notice given under these Terms by any party to another party must be in writing and sent by email, and will be deemed to have been given upon transmission. Notices to Embedded Foundry must be sent to support@embeddedfoundry.com. Notices to you will be sent to any email address associated with your User Account or that you otherwise submit to us through your use of the Alpha Service. For contractual purposes, you consent to receive communications from us in electronic form, and you agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
If any part or provision of these Terms is held by a court of competent jurisdiction to be invalid, unenforceable, or in conflict with the law, that part or provision shall be replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision, and the remainder of these Terms will continue in full force and effect. Our failure to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. If we waive any breach of these Terms, such waiver will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
These Terms, together with the Privacy Policy, constitute the sole and entire agreement between you and Embedded Foundry with respect to the subject matter hereof, and supersede and extinguish all prior agreements, representations (whether oral or written), and understandings regarding such subject matter. The provisions of the following Sections will survive any termination of these Terms: Section 2; Section 3 (with respect to the final sentence only); Sections 4 through 6; Section 7 (with respect to the final sentence only); Section 8 (with respect to the final sentence only); Sections 9 through 13; and Sections 15 through 22.
For more information or other questions, please email us at support@embeddedfoundry.com.