Version 0.1.0
Effective Date: 08/24/2023
Last Updated Date: 08/24/2023
Welcome to LM Studio,
which is owned and operated by Element Labs, Inc., a Delaware corporation
(together, the "Company," "we," or "us"). The Company has developed
and makes available a desktop software application to search, download, and run
large artificial intelligence models.
PLEASE READ THIS TERMS OF USE AGREEMENT (THE “TERMS OF USE”) CAREFULLY. THIS WEBSITE (THE “WEBSITE”) AND THE INFORMATION ON IT ARE CONTROLLED BY COMPANY. THESE TERMS OF USE GOVERN THE USE OF THE WEBSITE AND OTHER COMPANY PROPERTIES, AND APPLY TO ALL INTERNET USERS VISITING THE WEBSITE BY ACCESS OR USING THE WEBSITE IN ANY WAY, INCLUDING USING THE SERVICES, SOFTWARE AND RESOURCES AVAILABLE OR ENABLED VIA THE WEBSITE (EACH A “SERVICE” AND COLLECTIVELY, THE “SERVICES”). BY CLICKING ON THE “I ACCEPT” BUTTON, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH COMPANY, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE PERSONALLY OR ON BEHALF OF COMPANY YOU HAVE NAMED AS THE USER, AND TO BIND THAT COMPANY TO THE TERMS OF USE. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY USING THE COMPANY PROPERTIES, INCLUDING THE SERVICES OR WEBSITE. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THE COMPANY PROPERTIES, INCLUDING THIS WEBSITE OR THE SERVICES.
PLEASE BE AWARE THAT SECTION 12 CONTAINS
PROVISIONS GOVERNING HOW TO RESOLVE DISPUTES BETWEEN YOU AND COMPANY. AMONG OTHER THINGS, SECTION 12 INCLUDES AN
AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL
DISPUTES BETWEEN YOU AND US SHALL BE RESOLVED BY BINDING AND FINAL
ARBITRATION. SECTION 12 ALSO CONTAINS A
CLASS ACTION AND JURY TRIAL WAIVER.
PLEASE READ SECTION 12 CAREFULLY.
UNLESS YOU OPT OUT OF THE AGREEMENT TO
ARBITRATE WITHIN 30 DAYS: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR
CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR
CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND YOU WAIVE
YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION;
AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF
IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO
YOUR USE OF THE WEBSITE, THE SERVICES OR THE COMPANY PROPERTIES WILL BE
GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK,
CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY
PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER
JURISDICTION.
Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Use or will be presented to you for your acceptance when you sign up to use the supplemental Service. If the Terms of Use are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. The Terms of Use and any applicable Supplemental Terms are referred to herein as the “Agreement.”
PLEASE NOTE THAT The Agreement IS subject to change by Company in its sole discretion at any time. When changes are made, Company will make a new copy of the Terms of Use available at the Website. Any changes to the Agreement will be effective immediately for new users of the Website and/ or Services and will be effective thirty (30) days after posting notice of such changes on the Website. If you do not agree to any change(s), you shall stop using the Services. Otherwise, your continued use of the Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
1.
USE OF THE SERVICES AND COMPANY
PROPERTIES. The Software, the Website, the Services, and
the information and content available on the Website and the Services (as these
terms are defined herein) (each, a “Company
Property” and collectively, the “Company
Properties”) are protected by copyright laws throughout the world. Subject to the Agreement, Company grants you
a limited license to reproduce portions of Company Properties for the sole
purpose of using the Services for your personal, non-commercial purposes. Unless otherwise specified by Company in a
separate license, your right to use any and all
Company Properties is subject to the Agreement.
1.1
Company Software. Use of any software and associated documentation that is made available
via the Website or the Services (“Software”) is governed by the terms of the license agreement in
this that accompanies or is included with the Software, or by the license
agreement expressly stated on the Website page(s) accompanying the
Software. These license terms may be
posted with the Software downloads or at the Website page where the Software
can be accessed. You shall not use,
download or install any Software that is accompanied by or includes a license
agreement unless you agree to the terms of such license agreement. At no time will Company provide you with any
tangible copy of our Software. Company
shall deliver access to the Software via electronic transfer or download and
shall not use or deliver any tangible media in connection with the (a)
delivery, installation, updating or problem resolution of any Software
(including any new releases); or (b) delivery, correction or updating of
documentation. For the purposes of this
section tangible media shall include, but not be limited to, any tape disk,
compact disk, card, flash drive, or any other comparable physical medium. Unless the accompanying license agreement
expressly allows otherwise, any copying or redistribution of the Software is
prohibited, including any copying or redistribution of the Software to any
other server or location, or redistribution or use on a service bureau
basis. If there is any conflict between
the Agreement and the license agreement, the license agreement shall take precedence
in relation to that Software (except as provided in the following sentence). If the Software is a pre-release version,
then, notwithstanding anything to the contrary included within an accompanying
license agreement, you are not permitted to use or otherwise rely on the
Software for any commercial or production purposes. If no license agreement accompanies use of
the Software, use of the Software will be governed by the Agreement. Subject to your compliance with the
Agreement, Company grants you a non-assignable, non-transferable,
non-sublicensable, revocable non-exclusive license to use the Software for the
sole purpose of enabling you to use the Services in the manner permitted by the
Agreement.
1.2
Updates. You understand that Company
Properties are evolving. As a result,
Company may require you to accept updates to Company Properties that you have
installed on your computer or mobile device.
You acknowledge and agree that Company may update Company Properties
with or without notifying you. You may
need to update third-party software from time to time in order to use Company
Properties.
1.3
Certain Restrictions. The
rights granted to you in the Agreement are subject to the following
restrictions: (a) you shall not license, sell, rent, lease, transfer, assign,
reproduce, distribute, host or otherwise commercially exploit Company
Properties or any portion of Company Properties, including the Website, (b) you
shall not frame or utilize framing techniques to enclose any trademark, logo,
or other Company Properties (including images, text, page layout or form) of
Company; (c) you shall not use any metatags or other “hidden text” using
Company’s name or trademarks; (d) you shall not modify, translate, adapt,
merge, make derivative works of, disassemble, decompile, reverse compile or
reverse engineer any part of Company Properties except to the extent the
foregoing restrictions are expressly prohibited by applicable law; (e) you
shall not use any manual or automated software, devices or other processes (including
but not limited to spiders, robots, scrapers, crawlers, avatars, data mining
tools or the like) to “scrape” or download data from any web pages contained in
the Website (except that we grant the operators of public search engines
revocable permission to use spiders to copy materials from the Website for the
sole purpose of and solely to the extent necessary for creating publicly
available searchable indices of the materials, but not caches or archives of
such materials); (f) you shall not access Company Properties in order to build
a similar or competitive website, application or service; (g) except as
expressly stated herein, no part of Company Properties may be copied,
reproduced, distributed, republished, downloaded, displayed, posted or transmitted
in any form or by any means; and (h) you shall not remove or destroy any
copyright notices or other proprietary markings contained on or in Company
Properties. Any future release, update
or other addition to Company Properties shall be subject to the Agreement. Company, its suppliers and service providers
reserve all rights not granted in the Agreement. Any unauthorized use of any Company Property
terminates the licenses granted by Company pursuant to the Agreement.
1.4
Third-Party Materials. As a
part of Company Properties, you may have access to materials that are hosted by
another party. You agree that it is
impossible for Company to monitor such materials and that you access these
materials at your own risk.
2.
EQUIPMENT AND SOFTWARE. You
must provide all equipment and software necessary to connect to Company
Properties. You are solely responsible
for any fees, including Internet connection that you incur when accessing
Company Properties.
3.
OWNERSHIP.
3.1
Company Properties. You
agree that Company owns all rights, title and interest in Company Properties
(including but not limited to, any titles, computer code, themes, objects, concepts,
methods of operation, moral rights, documentation). You will not remove, alter or obscure any
copyright, trademark, service mark or other proprietary rights notices
incorporated in or accompanying any Company Properties.
3.2
Trademarks. “LM
Studio” and all related logos, service marks and trade names used on or in
connection with any Company Properties or in connection with the Services are
the trademarks of Company and may not be used without permission in connection
with your or any third-party products or services. Other trademarks, service marks and trade
names that may appear on or in Company Properties are the property of their
respective owners.
3.3
Feedback. You
agree that any submission of ideas, suggestions, documents, and/or proposals to
Company through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and
that Company has no obligations (including without limitation obligations of
confidentiality) with respect to such Feedback.
You represent and warrant that you have all rights necessary to submit
the Feedback. You hereby grant to
Company a fully paid, royalty-free, perpetual, irrevocable, worldwide,
non-exclusive, and fully sublicensable right and license to use, reproduce,
perform, display, distribute, adapt, modify, re-format, create derivative works
of, and otherwise commercially or non-commercially exploit in any manner, any
and all Feedback, and to sublicense the foregoing rights, in connection with
the operation and maintenance of Company Properties and/or Company’s business.
4.
USER CONDUCT.
4.1
Cheating and Hacking. You
agree that you will not, under any circumstances:
(a)
Interfere with or damage Company Properties, including, without
limitation, through the use of viruses, cancel bots, Trojan horses, harmful
code, flood pings, denial-of-service attacks, packet or IP spoofing, forged
routing or electronic mail address information, or similar methods or technology;
(b)
Modify or cause to be modified any files that are a part of Company Properties;
(c)
Disrupt, overburden, or aid or assist in the disruption or
overburdening of: (i) any computer or server used to offer or support Company
Properties; or (ii) the enjoyment of Company Properties by any other person;
(d)
Institute, assist, or become involved in any type of attack, including,
but not limited to, distribution of a virus, denial of service attacks upon
Company Properties, or other attempts to disrupt Company Properties or any
other person’s use or enjoyment of Company Properties;
(e)
Attempt to gain unauthorized access to Company Properties, or to the
computers, servers or networks connected to Company Properties by any means
other than the user interface provided by Company, including, but not limited
to, by circumventing or modifying, attempting to circumvent or modify, or
encouraging or assisting any other person to circumvent or modify, any
security, technology, device or software that is part of Company Properties;
(f)
Access, tamper with or use non-public areas of Company Properties,
Company’s computer systems, or the technical delivery systems of Company’s providers;
(g)
Attempt to probe, scan, or test the vulnerability of any Company system
or network, or breach any security or authentication measures;
(h)
Disrupt or interfere with the security of, or otherwise cause harm to,
Company Properties, systems, resources, servers or networks connected to or
accessible through Company Properties or any affiliated or linked sites; or
(i)
Avoid, bypass, remove, deactivate, impair, descramble, or otherwise
circumvent any technological measure implemented by Company or any of Company’s
providers or any other third party (including another user) to protect Company
Properties.
4.2
Commercial Activities. You
agree that you will not (except to the extent expressly authorized by the
Agreement or under a separate license agreement with the Company):
(a)
Reproduce, duplicate, copy, sell, trade, resell or exploit for any
commercial purpose any portion of Company Properties, or access to or use of
Company Properties;
(b)
Use Company Properties or any part thereof for any commercial or
business purpose; or
(c)
Engage in any chain letters, contests, junk email, pyramid schemes,
spamming, surveys or other duplicative or unsolicited messages (commercial or
otherwise) in connection with Company Properties.
4.3
Unauthorized Use or Access. You
agree that you will not, under any circumstances:
(a)
Interfere or attempt to interfere with the proper functioning of
Company Properties or connect to or use Company Properties in any way not
expressly permitted by the Agreement;
(b)
Systematically retrieve data or other content from Company Properties
to create or compile, directly or indirectly, in single or multiple downloads,
a collection, compilation, database, directory or the like, whether by manual
methods or through the use of bots, crawlers, spiders, or otherwise;
(c)
Use, display, mirror or frame Company Properties, or any individual
element within Company Properties, Company’s name, any Company trademark, logo
or other proprietary information, or the layout and design of any page or form
contained on a page, without Company’s express written consent;
(d)
Use any unauthorized software that accesses, intercepts, “mines” or
otherwise collects information from or through Company Properties or that is in
transit from or to Company Properties, including, but not limited to, any
software that reads areas of RAM or streams of network traffic used by Company Properties;
(e)
Intercept, examine or otherwise observe any proprietary communications
protocol used by a client, a server or Company Properties, whether through the
use of a network analyzer, packet sniffer or other device;
(f)
Make any automated use of Company Properties, or take any action that
imposes or may impose (in Company’s sole discretion) an unreasonable or
disproportionately large load on the infrastructure for Company Properties;
(g)
Bypass any robot exclusion headers or other measures Company takes to
restrict access to Company Properties, or use any software, technology or
device to send content or messages, scrape, spider or crawl Company Properties,
or harvest or manipulate data;
(h)
Use, facilitate, create, or maintain any unauthorized connection to
Company Properties, including, but not limited to: (i) any connection to any
unauthorized server that emulates, or attempts to emulate, any part of Company
Properties; or (ii) any connection using programs, tools or software not
expressly approved by Company;
(i)
Reverse engineer, decompile, disassemble, decipher or otherwise attempt
to derive the source code for any underlying software or other intellectual
property used to provide Company Properties;
(j)
Upload, post, e-mail, transmit or otherwise make available any material
that contains software viruses or any other computer
code, files or programs designed to interrupt, destroy or limit the
functionality of any computer software or hardware or telecommunications
equipment;
(k)
Solicit or attempt to solicit personal information from other users of
Company Properties;
(l)
Use Company Properties to collect, harvest, transmit, distribute, post
or submit any information concerning any other person or entity, including
without limitation, photographs of others without their permission, personal
contact information or credit, debit, calling card or account numbers; or
(m)
Upload or transmit (or attempt to upload or to transmit) any material
that acts as a passive or active information collection or transmission
mechanism, including, but not limited to, clear GIFs, 1x1 pixels, web bugs,
cookies or other similar devices (sometimes referred to as “spyware,” “passive
collection mechanisms” or “pcms”).
4.4
INVESTIGATIONS.
Company may, but is not obligated to, monitor or review Company
Properties at any time. Although Company
does not generally monitor user activity occurring in connection with Company
Properties, if Company becomes aware of any possible violations by you of any
provision of the Agreement, Company reserves the right to investigate such
violations, and Company may, at its sole discretion, immediately terminate your
license to use Company Properties, without prior notice to you.
5.
THIRD-PARTY SERVICES.
5.1
Third-Party Websites and
Applications. Company Properties may contain links to third-party
websites (“Third-Party Websites”) and
applications, including large language model applications (“Third-Party Applications”).
When you click on a link to a Third-Party Website or Third-Party
Application, we will not warn you that you have left Company Properties and are
subject to the terms and conditions (including privacy policies) of another
website or destination. Such Third-Party
Websites and Third-Party Applications are not under the control of
Company. Company is not responsible for
any Third-Party Websites or Third-Party Applications. Company does not review, approve, monitor,
endorse, warrant, or make any representations with respect to Third-Party
Websites or Third-Party Applications, or any product or service provided in
connection therewith. You use all links
in Third-Party Websites and Third-Party Applications at your own risk. When you leave our Website, the Agreement and
policies no longer govern. You should
review applicable terms and policies, including privacy and data gathering
practices, of any Third-Party Websites or Third-Party Applications, and make
whatever investigation you feel necessary or appropriate before proceeding with
any transaction with any third party.
6.
Indemnification. You agree to indemnify and hold Company, its parents, subsidiaries,
affiliates, officers, employees, agents, partners, suppliers, and licensors
(each, a “Company Party” and
collectively, the “Company Parties”)
harmless from any losses, costs, liabilities and expenses (including reasonable
attorneys’ fees) relating to or arising out of any and all of the following:
(a) your use of, or inability to use, any Company Property; (b) your violation
of the Agreement; (c) your violation of any rights of another party; or (d)
your violation of any applicable laws, rules or regulations. Company reserves the right, at its own cost,
to assume the exclusive defense and control of any matter otherwise subject to
indemnification by you, in which event you will fully cooperate with Company in
asserting any available defenses. You
agree that the provisions in this section will survive any termination of the
Agreement and/or your access to Company Properties.
7.
DISCLAIMER OF WARRANTIES AND
CONDITIONS.
7.1
As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO
THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF COMPANY PROPERTIES IS AT
YOUR SOLE RISK, AND COMPANY PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS
AVAILABLE” BASIS, WITH ALL FAULTS.
COMPANY PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND
CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED
TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF ANY COMPANY
PROPERTIES, INCLUDING THE WEBSITE AND THE SERVICES.
(a) COMPANY PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) COMPANY PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF COMPANY PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF COMPANY PROPERTIES WILL BE ACCURATE OR RELIABLE.
(b)
ANY SOFTWARE DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH COMPANY
PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE
FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER
SYSTEM AND ANY DEVICE YOU USE TO ACCESS COMPANY PROPERTIES.
(c)
THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER
DISRUPTIONS. COMPANY MAKES NO WARRANTY,
REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED
TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF
SERVICES.
(d)
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM
COMPANY OR THROUGH COMPANY PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY
MADE HEREIN.
(e)
From time to time, Company may offer new
“beta” features or tools with which its users may experiment. Such features or tools are offered solely for
experimental purposes and without any warranty of any kind, and may be modified
or discontinued at Company’s sole discretion.
The provisions of this section apply with full force to such features or
tools.
7.2
No Liability for Conduct of
Third Parties. YOU ACKNOWLEDGE AND AGREE THAT COMPANY
PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD COMPANY PARTIES
LIABLE, FOR THE CONDUCT OF THIRD PARTIES, AND THAT THE RISK OF DAMAGES FROM
SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. COMPANY MAKES NO WARRANTY THAT ANY
SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE
ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. COMPANY MAKES NO WARRANTY REGARDING THE
QUALITY OF ANY SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS,
COMPLETENESS OR RELIABILITY OF COMPANY PROPERTIES.
8.
LIMITATION OF LIABILITY.
8.1
Disclaimer and Cap on Liability. YOU
UNDERSTAND AND AGREE THAT IN NO EVENT SHALL COMPANY PARTIES BE LIABLE FOR ANY
LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR
CONSEQUENTIAL DAMAGES, IN EACH CASE WHETHER OR NOT COMPANY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE
AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF
COMPANY PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR
INABILITY TO USE COMPANY PROPERTIES; (2) STATEMENTS OR CONDUCT OF ANY THIRD
PARTY ON COMPANY PROPERTIES; OR (3) ANY OTHER MATTER RELATED TO COMPANY
PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE)
OR ANY OTHER LEGAL THEORY. UNDER NO
CIRCUMSTANCES WILL COMPANY PARTIES BE LIABLE TO YOU FOR MORE THAN $100 USD.
9.
REMEDIES.
9.1
Breach. In the event that Company determines, in its sole
discretion, that you have breached any portion of the Agreement, or have
otherwise demonstrated conduct inappropriate for Company Properties, Company
reserves the right to pursue any action which Company deems to be appropriate.
10.
TERM AND TERMINATION.
10.1
Term. The
Agreement commences on the date when you accept them (as described in the
preamble above) and remain in full force and effect while you use Company
Properties, unless terminated earlier in accordance with the Agreement. The Agreement will remain in full force and
effect while you use the Services or any Company Properties. We may suspend or terminate your rights to
use the Services at any time for any reason at our sole discretion, including
for any use of the Services or Company Properties in violation of this
Agreement. Upon termination of your
rights under this Agreement, your right to access and use the Services and
Company Properties will terminate immediately and you will promptly and
permanently delete the Software. All
provisions of the Agreement which by their nature should survive, shall survive
termination of Services, including without limitation, ownership provisions,
warranty disclaimers, and limitation of liability.
11.
INTERNATIONAL USERS. Company Properties can be accessed from countries around the world and
may contain references to Services that are not available in your country. These references do not imply that Company
intends to announce such Services in your country. Company Properties are controlled and offered
by Company from its facilities in the United States of America. Company makes no representations that Company
Properties are appropriate or available for use in other locations. Those who access or use Company Properties
from other countries do so at their own volition and are responsible for
compliance with local law.
12.
ARBITRATION AGREEMENT
12.1 Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and Company agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the Company Properties, including the Services or the Website, any communications you receive, or the Terms of Use and prior versions of the Terms of Use, including claims and disputes that arose between us before the effective date of these Terms of Use (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (1) you and Company may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or Company may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the Terms of Use as well as claims that may arise after the termination of these Terms of Use.
12.2 Information Dispute Resolution.
(a) There might be instances when a Dispute arises between you and Company. If that occurs, Company is committed to working with you to reach a reasonable resolution. You and Company agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and Company therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.
(b) The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within 45 days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to Company that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to legal@lmstudio.ai or regular mail to our offices located at 251 Little Falls Drive, Wilmington, New Castle Country, Delaware 19808-1674. The Notice must include: (1) your name, telephone number, mailing address, e‐mail address; (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute.
(c) The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
12.3 Waiver of Jury Trial. YOU AND COMPANY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Company are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the subsection entitled “Applicability of Arbitration Agreement” above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
12.4
Waiver of Class and
Other Non-Individualized Relief. YOU
AND COMPANY AGREE THAT, EXCEPT AS SPECIFIED IN SUBSECTION 12.13, EACH OF US MAY
BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS,
REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO
HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A
CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND
DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED
WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the
arbitrator may award declaratory or injunctive relief only in favor of the
individual party seeking relief and only to the extent necessary to provide
relief warranted by the party's individual claim. Nothing in this paragraph is intended to, nor
shall it, affect the terms and conditions under the subsection 12.13 entitled
“Batch Arbitration.” Notwithstanding anything to the contrary in this Arbitration
Agreement, if a court decides by means of a final decision, not subject to any
further appeal or recourse, that the limitations of this subsection, “Waiver of
Class and Other Non-Individualized Relief,” are invalid or unenforceable as to
a particular claim or request for relief (such as a request for public
injunctive relief), you and Company agree that that particular claim or request
for relief (and only that particular claim or request for relief) shall be
severed from the arbitration and may be litigated in the state or federal
courts located in the State of New York. All other Disputes shall be arbitrated
or litigated in small claims court. This
subsection does not prevent you or Company from participating in a class-wide
settlement of claims.
12.5 Rules and Forum.
(a) The Terms of Use evidence a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution Process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and Company agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf.
(b) A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.
(c) If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
(d) Unless you and Company otherwise agree, or the Batch Arbitration process discussed in subsection 12.13 is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely as set forth in the applicable AAA Rules.
(e)
You and Company agree
that all materials and documents exchanged during the arbitration proceedings
shall be kept confidential and shall not be shared with anyone except the
parties’ attorneys, accountants, or business advisors, and then subject to the
condition that they agree to keep all materials and documents exchanged during
the arbitration proceedings confidential.
12.6
Arbitrator. The arbitrator will be either a retired
judge or an attorney licensed to practice law in the state of New York and will
be selected by the parties from the AAA's roster of consumer dispute
arbitrators. If the parties are unable
to agree upon an arbitrator within thirty-five (35) days of delivery of the
Request, then the AAA will appoint the arbitrator in accordance with the AAA
Rules, provided that if the Batch Arbitration process under subsection 12.13 is
triggered, the AAA will appoint the arbitrator for each batch.
12.7
Authority of
Arbitrator. The arbitrator shall
have exclusive authority to resolve any Dispute, including, without limitation,
disputes arising out of or related to the interpretation or application of the
Arbitration Agreement, including the enforceability, revocability, scope, or
validity of the Arbitration Agreement or any portion of the Arbitration
Agreement, except for the following: (1) all Disputes arising out of or
relating to the subsection entitled “Waiver of Class and Other
Non-Individualized Relief,” including any claim that all or part of the
subsection entitled “Waiver of Class and Other Non-Individualized Relief” is
unenforceable, illegal, void or voidable, or that such subsection entitled
“Waiver of Class and Other Non-Individualized Relief” has been breached, shall
be decided by a court of competent jurisdiction and not by an arbitrator; (2)
except as expressly contemplated in the subsection entitled “Batch
Arbitration,” all Disputes about the payment of arbitration fees shall be
decided only by a court of competent jurisdiction and not by an arbitrator; (3)
all Disputes about whether either party has satisfied any condition precedent
to arbitration shall be decided only by a court of competent jurisdiction and
not by an arbitrator; and (4) all Disputes about which version of the
Arbitration Agreement applies shall be decided only by a court of competent
jurisdiction and not by an arbitrator. The
arbitration proceeding will not be consolidated with any other matters or
joined with any other cases or parties, except as expressly provided in the
subsection entitled “Batch Arbitration.” The arbitrator shall have the
authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award
and statement of decision describing the essential findings and conclusions on
which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and
binding upon you and us. Judgment on the
arbitration award may be entered in any court having jurisdiction.
12.8
Attorney’s Fees and
Costs. The parties shall bear their
own attorneys’ fees and costs in arbitration unless the arbitrator finds that
either the substance of the Dispute or the relief sought in the Request was
frivolous or was brought for an improper purpose (as measured by the standards
set forth in Federal Rule of Civil Procedure 11(b)). If you or Company need to invoke the
authority of a court of competent jurisdiction to compel arbitration, then the
party that obtains an order compelling arbitration in such action shall have
the right to collect from the other party its reasonable costs, necessary
disbursements, and reasonable attorneys' fees incurred in securing an order
compelling arbitration. The prevailing
party in any court action relating to whether either party has satisfied any
condition precedent to arbitration, including the Informal Dispute Resolution
Process, is entitled to recover their reasonable costs, necessary
disbursements, and reasonable attorneys’ fees and costs.
12.9 Batch Arbitration.
(a) To increase the efficiency of administration and resolution of arbitrations, you and Company agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against Company by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).
(b) All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Company.
(c) You and Company agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.
(d)
This Batch Arbitration
provision shall in no way be interpreted as authorizing a class, collective
and/or mass arbitration or action of any kind, or arbitration involving joint
or consolidated claims under any circumstances, except as expressly set forth
in this provision.
12.10 30-Day Right to Opt Out. You have the right to opt out of
the provisions of this Arbitration Agreement by sending written notice of your
decision to opt out to: 251 Little Falls Drive,
Wilmington, New Castle Country, Delaware 19808-1674, within thirty (30) days
after first becoming subject to this Arbitration Agreement. Your notice must include your name and
address, the email address, and an unequivocal statement that you want to opt
out of this Arbitration Agreement. If
you opt out of this Arbitration Agreement, all other parts of these Terms of
Use will continue to apply to you. Opting
out of this Arbitration Agreement has no effect on any other arbitration
agreements that you may currently have, or may enter in the future, with us.
12.11 Invalidity, Expiration.
Except as provided in the subsection entitled “Waiver of Class or
Other Non-Individualized Relief”, if any part or parts of this Arbitration
Agreement are found under the law to be invalid or unenforceable, then such
specific part or parts shall be of no force and effect and shall be severed and
the remainder of the Arbitration Agreement shall continue in full force and
effect. You further agree that any
Dispute that you have with Company as detailed in this Arbitration Agreement
must be initiated via arbitration within the applicable statute of limitation
for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable
statutes of limitation will apply to such arbitration in the same manner as
those statutes of limitation would apply in the applicable court of competent
jurisdiction.
12.12 Modification. Notwithstanding
any provision in the Terms of Use to the contrary, we agree that if Company makes
any future material change to this Arbitration Agreement, it will notify you. Unless you reject the change within thirty
(30) days of such change become effective by writing to Company at 251 Little
Falls Drive, Wilmington, New Castle Country, Delaware 19808-1674, your
continued use of the Company Properties, including the Services or the Website,
including the acceptance of Company Properties offered on the Website following
the posting of changes to this Arbitration Agreement constitutes your
acceptance of any such changes. Changes
to this Arbitration Agreement do not provide you with a new opportunity to opt
out of the Arbitration Agreement if you have previously agreed to a version of
these Terms of Use and did not validly opt out of arbitration. If you reject any change or update to this
Arbitration Agreement, and you were bound by an existing agreement to arbitrate
Disputes arising out of or relating in any way to your access to or use of the Company
Properties, including the Services or of the Website, any communications you
receive, any Software distributed through the Website, the Services, or these
Terms of Use, the provisions of this Arbitration Agreement as of the date you
first accepted the Terms of Use (or accepted any subsequent changes to these
Terms of Use) remain in full force and effect.
Company will continue to honor any valid opt outs of the Arbitration
Agreement that you made to a prior version of these Terms of Use.
13.
GENERAL PROVISIONS.
13.1
Electronic Communications. The
communications between you and Company may take place via electronic means,
whether you visit Company Properties or send Company e-mails, or whether
Company posts notices on Company Properties or communicates with you via
e-mail. For contractual purposes, you
(a) consent to receive communications from Company in an electronic form; and
(b) agree that all terms and conditions, agreements, notices, disclosures, and
other communications that Company provides to you electronically satisfy any
legal requirement that such communications would satisfy if it were to be in
writing.
13.2 Release. You hereby release Company Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of Company Properties, including but not limited to, any interactions with third-party websites of any kind arising in connection with or as a result of the Agreement or your use of Company Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
13.3
Assignment. The
Agreement, and your rights and obligations hereunder, may not be assigned,
subcontracted, delegated or otherwise transferred by you without Company’s
prior written consent, and any attempted assignment, subcontract, delegation,
or transfer in violation of the foregoing will be null and void.
13.4
Force Majeure.
Company shall not be liable for any delay or failure to perform
resulting from causes outside its reasonable control, including, but not
limited to, acts of God, war, terrorism, riots, embargos, acts of civil or
military authorities, fire, floods, accidents, strikes or shortages of
transportation facilities, fuel, energy, labor or materials.
13.5
Questions, Complaints, Claims. If
you have any questions, complaints or claims with respect to Company Properties,
please contact us at: business@lmstudio.ai.
We will do our best to address your concerns. If you feel that your concerns have been
addressed incompletely, we invite you to let us know for further investigation.
13.6
Exclusive Venue. To
the extent the parties are permitted under this Agreement to initiate
litigation in a court, both you and Company agree that all claims and disputes
arising out of or relating to the Agreement will be litigated exclusively in
the state or federal courts located in New York, New York.
13.7
Governing Law and Jurisdiction. The Terms and any action related thereto will
be governed and interpreted by and under the laws of the State of NEWY YORK, consistent with the
Federal Arbitration Act, without giving effect to any principles that provide
for the application of the law of another jurisdiction.
13.8
Notice. Where
Company requires that you provide an e-mail address, you are responsible for
providing Company with your most current e-mail address. In the event that
the last e-mail address you provided to Company is not valid, or for any reason
is not capable of delivering to you any notices required/ permitted by the
Agreement, Company’s dispatch of the e-mail containing such notice will
nonetheless constitute effective notice.
You may give notice to Company at the following address: business@lmstudio.ai. Such notice shall be deemed given when
received by Company by letter delivered by nationally recognized overnight
delivery service or first class postage prepaid mail
at the above address.
13.9
Waiver. Any
waiver or failure to enforce any provision of the Agreement on one occasion
will not be deemed a waiver of any other provision or of such provision on any
other occasion.
13.10 Severability. If any portion of this Agreement is held
invalid or unenforceable, that portion shall be construed in a manner to
reflect, as nearly as possible, the original intention of the parties, and the
remaining portions shall remain in full force and effect.
13.11 Export Control. You may not use, export, import, or transfer
Company Properties except as authorized by U.S. law, the laws of the
jurisdiction in which you obtained Company Properties, and any other applicable
laws.
13.12 Entire Agreement. The Agreement is the final, complete and
exclusive agreement of the parties with respect to the subject matter hereof
and supersedes and merges all prior discussions between the parties with
respect to such subject matter.