Terms and Conditions

THESE TERMS AND CONDITIONS (the “Agreement”) ARE ENTERED INTO BETWEEN SOUL MACHINES, INC. (“Soul Machines” or “Company”) AND THE INDIVIDUAL OR ENTITY IDENTIFIED ON THE WRITTEN ORDER FORM, ONLINE REGISTRATION FORM, OR OTHER WRITTEN AGREEMENT ENTERED INTO WITH COMPANY REFERENCING THESE TERMS (EACH AN, “Ordering Document”) (“Subscriber”). BY SIGNING AN ORDER FORM OR WRITTEN AGREEMENT REFERENCING THESE TERMS, CLICKING “I ACCEPT,” OR BY OTHERWISE ACCESSING OR USING THE SERVICES, SUBSCRIBER AGREES THAT IT HAS READ AND UNDERSTANDS, AND, AS A CONDITION TO ITS USE OF THE SERVICE, AGREES TO BE BOUND BY THIS AGREEMENT. THIS AGREEMENT TAKES EFFECT ON THE DATE THE PARTIES SIGN OR OTHERWISE ENTER INTO SUBSCRIBER’S ORDERING DOCUMENT (“Effective Date”). IF SUBSCRIBER IS AN ENTITY, THE PERSON ACCEPTING THIS AGREEMENT ON BEHALF OF SUBSCRIBER REPRESENTS THAT SUCH PERSON HAS THE AUTHORITY TO BIND SUBSCRIBER TO THIS AGREEMENT. IF THE PERSON DOES NOT HAVE SUCH AUTHORITY, OR IF THE PERSON DOES NOT AGREE WITH THIS AGREEMENT, THEN THEY MUST NOT ACCEPT THIS AGREEMENT ON SUBSCRIBER’S BEHALF.

ARBITRATION NOTICE. EXCEPT FOR CERTAIN KINDS OF DISPUTES DESCRIBED IN SECTION 12, SUBSCRIBER AGREES THAT DISPUTES ARISING UNDER THIS AGREEMENT WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND BY ACCEPTING THIS AGREEMENT, SUBSCRIBER AND SOUL MACHINES ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. SUBSCRIBER AGREES TO GIVE UP ITS RIGHT TO GO TO COURT TO ASSERT OR DEFEND ITS RIGHTS UNDER THIS AGREEMENT (EXCEPT, IN SOME CASES, FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT). SUBSCRIBER’S RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY.

Definitions
1. “Authorized User(s)” means the employees or contractors of Subscriber identified in an applicable Ordering Document, in each case who are authorized to use the Hosted Services on Subscriber’s behalf.
2. “Digital People” means a graphical user interface that resembles an animated character and that, when interconnected with the HumanOS Platform, is capable of processing and responding to audio, visual and textual information provided by End Users.
3. “Digital People Services” means Company’s HumanOS Platform that enables interactions between Digital People and Subscriber’s Users via a Subscriber Application.
4. “End User(s)” means Subscriber’s end users who access and use the Digital People Services through a Subscriber Application.
5. “End User Agreement” means the terms and conditions that govern End Users use of the Digital People Services, as provided by Company and as may be updated from time to time.
6. “End User Data” means any data that End Users provide to the Services.
7. “Hosted Services” means Company’s software-as-a-service platform providing enterprise applications and services, including without limitation access to customer experience and service data about End Users and the ability to upload Subscriber Content.
8. “HumanOS Platform” means Company’s technology platform that enables the autonomous animation of CGI characters (Digital People).
9. “Services” means the Digital People Services, Hosted Services, and Support Services.
10. “Subscriber Application(s)” means Subscriber’s website, mobile or other application, computer kiosk, or other physical device, owned and operated by Subscriber, on which Subscriber may make the Digital People Services available to End Users under this Agreement.
11. “Subscriber Content” means any content or materials, including without limitation, Subscriber’s name, logos, trademarks and other identifying marks, provided by Subscriber to Company for use in connection with the Services. Subscriber Content does not include any Subscriber Data.
12. “Subscriber Data” means (i) any data that Subscriber or its Authorized Users provide to the Services and (ii) End User Data.
13. “Territory” means the territory specified in the applicable Ordering Document, and in any case excluding any country or territory which is itself the subject or target of any sanctions under OFAC or any applicable law or regulation (at the time of this Agreement, including but not limited to Cuba, Iran, North Korea, Sudan and Syria).
14. “User(s)” means Authorized Users and End Users.
Services
1. Digital People Services and Hosted Services. Subject to Subscriber’s ongoing compliance with the terms of this Agreement and to the extent permitted under the applicable Ordering Document, Company hereby grants to Subscriber a non-exclusive, non-transferable, non-sublicensable right during the applicable Subscription Term to allow:
  1. Authorized Users to access and use the Hosted Services, solely for Subscriber’s business purposes.
  2. End Users in the Territory to access and use the Digital People Services, solely via a Subscriber Application.
2. Authorized Users. Subscriber is responsible for: (a) identifying all Authorized Users in the applicable Ordering Document (Subscriber may not substitute an Authorized User without Company’s prior written consent), (b) approving access by such Authorized Users to the Services, (c) controlling against unauthorized access by Authorized Users, (d) maintaining the confidentiality of usernames, passwords and account information, and (e) all activities that occur under its and its Authorized Users’ usernames, passwords or accounts as a result of Subscriber’s or Subscriber’s Authorized Users’ access to the Services. Company is not responsible for any harm caused by Subscriber’s Authorized Users. Subscriber is solely responsible for ensuring compliance with this Agreement by its Authorized Users and any breach of this Agreement by an Authorized User will be deemed a breach by Subscriber.
3. Restrictions. Subscriber shall not (and will ensure its Users do not), directly or indirectly, and shall not authorize any third party to, (i) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code of, reconstruct, or discover any hidden elements of the Services (except to the extent expressly permitted by applicable law); (ii) translate, adapt, or modify the Services, or any portion of any of the foregoing; (iii) write or develop any program based upon the Services, or any portion thereof, or otherwise use the Services in an manner for the purpose of developing products or services that compete with the Services; (iv) sell, sublicense, transfer, assign, lease, rent, distribute, or grant a security interest in the Services or any rights thereto; (v) use the Services for the benefit of, or allow access to the Services by, unauthorized persons; (vi) transmit unlawful, infringing or harmful data or code to or from the Services; (vii) alter or remove any trademarks or proprietary notices contained in or on the Services; (viii) circumvent or otherwise interfere with any authentication or security measures of the Services, or otherwise interfere with or disrupt the integrity or performance thereof; (ix) use the Services in a manner that violates this Agreement, any third party rights or any applicable laws, rules or regulations; or (x) otherwise use the Services or any Company IP (as defined below) except as expressly permitted hereunder. Subscriber acknowledges and agrees that the Services are provided for the User capacity that is set out in the applicable Ordering Document. Subscriber is responsible for monitoring compliance with such User capacity limitations. In the event that the actual usage of the Services exceeds the User capacity indicated on the applicable Ordering Document and Subscriber does not remedy such overage as directed to by Company, Company may invoice Subscriber for all use exceeding the User capacity at Company’s then-current rates.
4. Acceptable Use. Subscriber shall not (and will ensure its Users do not), directly or indirectly, and shall not authorize any third party to, (i) use the Services in a manner that violates any third party rights or any applicable laws, rules or regulations; (ii) use the Services in furtherance of illegal activities, or any activities that may be harmful to any third party, or Company’s operations or reputation, including offering or disseminating fraudulent goods, services, schemes, or promotions (e.g., make-money-fast schemes, ponzi and pyramid schemes, phishing, or pharming), impersonating another person or entity, or engaging in other deceptive practices; (iii) transmit to the Services any content that is defamatory, obscene, abusive, invasive of privacy, deceptive, pornographic, or otherwise objectionable at the discretion of Company; (iv) transmit to the Services any content or links to any content that is incites violence, threatens violence, contains harassing content or hate speech, creates a risk to a person’s safety or health, or public safety or health, compromises national security or interferes with an investigation by law enforcement; (v) transmit to the Services any content that is unfair or deceptive under the consumer protection laws of any jurisdiction; or (vi) use the Services in connection with the promotion of, selling, or distributing controlled substances, including but not limited to any illegal or prescription drugs, regulated substances or products the sale of which is restricted to buyers of a certain age or who have a certain permit or license, including but not limited to any alcohol, tobacco, or firearms and other weapons.
5. Third-Party Components. Subscriber is solely responsible for obtaining and maintaining the Subscriber Applications and all third-party hardware, software, infrastructure, and connectivity necessary to operate the Services and access and use (and allow Users to access and use) the Services, (“Third-Party Components”), including those Third-Party Components required under the relevant specifications provided by Company from time to time. Company will have no maintenance, support, warranty, or other obligations or liability regarding any Third-Party Components, whether or not Company has provided specifications for such Third-Party Components. In particular, Subscriber acknowledges that a high-speed Internet connection is required at all times in order for the Services to operate properly and that Company will not be obligated to provide Support Services to the extent that such high-speed connection is not in operation, although all fees for such Support Services will continue to accrue during any such connectivity outage.
6. Professional Services. Company will use commercially reasonable efforts to perform any professional services in accordance with any specifications set forth in the Ordering Document or any statement of work executed by the parties. Subscriber will reasonably cooperate with Company to facilitate provision of professional services (as applicable). This cooperation will include, without limitation, (i) performing any tasks reasonably necessary for Company to provide the professional services; (ii) fulfilling any obligations described the applicable Ordering Document in a timely manner; and (iii) responding to Company’s reasonable requests for information related to professional services in a timely manner.
Support services
1. Support Services. Subject to Subscriber’s ongoing compliance with the terms of this Agreement (including timely payment of all applicable fees), Company agrees to (a) provide reasonable technical support to Subscriber, by email or telephone, during Company’s normal business hours of 9am-5pm PST, excluding US holidays; and (b) use commercially reasonable efforts to respond to support requests in a timely manner, and to resolve such issues by providing updates and/or workarounds to Subscriber, consistent with the severity of the issues identified in such requests and their impact on Subscriber’s business operations, in Company’s reasonable discretion.
2. Service Levels; Maintenance. Company will use commercially reasonable efforts to provide the Services in accordance with industry standard availability. Company shall also be entitled to suspend access to the Services from time to time in order to perform routine maintenance, emergency maintenance, upgrades, or other service improvements. Company will use its reasonable efforts to (a) schedule downtime for routine maintenance of the Services and (b) provide advance notice of any such scheduled downtime or suspension to Subscriber.
Data and content
1. Subscriber Data. As between Subscriber and Company, Subscriber Data is and will remain owned by Subscriber. Subscriber grants Company the right to collect, transmit, store, use, disclose, and otherwise process Subscriber Data to provide the Services and as otherwise set forth in this Agreement. Subscriber represents and warrants that it has provided all notices, and obtained all rights, authorizations, and consents, necessary to grant the rights set forth in this Section 4.
2. Usage Data. Subscriber acknowledges and agrees that Company may collect, transmit, store, use, disclose, and otherwise process aggregated and/or deidentified data derived from Subscriber Data or use of the Services (“Usage Data”) for Company’s business purposes, including for industry analysis, benchmarking, and analytics. Aggregated Data will be in an aggregated or deidentified form only and will not identify Subscriber or its Users.
3. Compliance. Subscriber shall comply with all privacy and data protection laws and regulations applicable to Subscriber Data or the use of the Services by Subscriber and its Users.
4. Information Security. Company will implement commercially reasonable security measures that are designed to protect Subscriber Data in its possession or control against unlawful or unauthorized access, use, alteration, or disclosure.
5. Customer Content. By providing Subscriber Content to Company, Subscriber grants Company a worldwide, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute the Subscriber Content, in whole or in part, to Users of the Services (including via the Subscriber Applications). Subscriber acknowledges that Company may, in its discretion, remove any Subscriber Content or Subscriber Data from the Services. In the event Company determines that certain Subscriber Content or Subscriber Data should be removed from the Services, Subscriber will (and will require that its Authorized Users) take all steps necessary, including providing assistance to Company, to remove or disable access to such Subscriber Content or Subscriber Data.
Fees; Payment
1. Fees. For each Subscription Term (defined below), Subscriber will pay Company all applicable fees of the type and amount set forth on the applicable Ordering Document, which may include, without limitation, subscription fees, license fees, and support fees (“Fees”). Unless otherwise agreed to and set forth in an Ordering Document, the Fees for each Subscription Term renewal will be in accordance with Company’s rates posted at the time of such renewal. All Fees are non-refundable and are exclusive of applicable sales tax, value add tax, and any other applicable taxes which shall be paid by Subscriber.
2. Authorization. If applicable, Subscriber authorizes Company or its third party payment processors to charge all sums for Services, including all applicable taxes, to the payment method specified in Subscriber’s account. Company or its third party payment processors may seek pre-authorization of Subscriber’s credit card account prior to Subscriber’s purchase to verify that the credit card is valid and has the necessary funds or credit available to cover Subscriber’s purchase.
3. Payment Terms. Unless otherwise set forth in the applicable Ordering Document, Fees are due annually in advance. Subscriber shall pay such Fees within thirty (30) days of the applicable due date. If applicable, Subscriber authorizes Company or its third party payment processor to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or Subscriber’s account, all Fees on or before the payment due date for those Fees. Unless otherwise set forth in the applicable Ordering Document, Subscriber must cancel Subscriber’s subscription before it renews in order to avoid billing of the next periodic Fee to Subscriber’s account. Subscriber may cancel its subscription in accordance with Section 6 by contacting Company at: [email protected] and 44 Tehama Street, San Francisco, CA 94105. If Company has not received payment by the due date, and without prejudice to any other rights and remedies it may have, Company may charge interest at the greater of, the rate of 1 percent (1%) per month and the maximum amount permitted under applicable law.
Term and termination
1. Term. This Agreement will begin on the Effective Date and unless otherwise stated in the applicable Ordering Document will continue for an initial term of twelve (12) months, following which the term will automatically renew for immediately successive terms of the same length (each such term, collectively and individually, the “Subscription Term”), unless either party provides notice of its intent not to renew at least thirty (30) days prior to the expiration of the applicable Subscription Term.
2. Termination for Cause. Company may terminate this Agreement by written notice (a) if Subscriber is in material breach of this Agreement, provided that, for material breaches capable of cure, Subscriber will have ten (10) days after receipt of notice to cure such material breach, or (b) access to the Services is suspended in accordance with Section 6.3 for a period exceeding sixty (60) days.
3. Suspension of Services. Without prejudice to any other rights or remedies available to Company, Company may suspend Subscriber or any Users access to the Services in the event Company, in its discretion, determines that:
  1. Subscriber or any of its Users has breached any term of this Agreement or the applicable End User Agreement;
  2. The Services are being or have been accessed or used (including unauthorized access by any third party) in breach of this Agreement, applicable End User Agreement or applicable law, or in a manner that threatens the security, integrity or availability of the Services;
  3. Suspension is necessary to protect Company’s other customers or users of the Services or the reputation of Company or the Services (including, if any Digital People develops a Negative Cognitive Context (as defined below)).
4. Termination for Convenience. Subscriber may terminate this Agreement at any time by providing notice to Company at: [email protected] and 44 Tehama Street, San Francisco, CA 94105, provided that no such termination by Subscriber will entitle Subscriber to a refund of any portion of the Fees.
5. Effect of Termination. Upon the effective date of expiration or termination of this Agreement for any reason: (i) the license granted to Subscriber will automatically terminate; (ii) Subscriber must and shall ensure that all Authorized Users immediately cease use of the Hosted Services and delete any copies of the Digital People Services from the Subscriber Applications and certify in writing the same has been completed; (iii) all outstanding payment obligations of Subscriber will become due and payable immediately; (iv) each party will promptly return or destroy any Confidential Information of the other party then in its possession or control. The following provisions will survive the expiration or termination of this Agreement for any reason: Sections 1, 2.3, 2.4, 4, 5 (with respect to Fees due), 6.5, and 7 through 13. Company is under no obligation to retain any Subscriber Data and may destroy or otherwise dispose of all Subscriber Data in its possession after termination or expiration of this Agreement. Subscriber may within ten (10) days of such termination or expiration, request the most recent back-up of Subscriber Data and Company will use reasonable efforts to provide Subscriber with such back-up provided that the Subscriber has paid all outstanding amounts due to Company (including any fees applicable to such delivery of data).
Confidentiality
1. Definition. “Confidential Information” means all nonpublic information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Without limiting the foregoing, the Company IP (as defined below) and Usage Data are Company’s Confidential Information. However, Confidential Information will not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party without breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.
2. Use; Maintenance. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care). In addition, (i) the Receiving Party will only use Confidential Information of the Disclosing Party to perform its obligations or exercise its rights under this Agreement; and (ii) except as otherwise authorized by the Disclosing Party expressly in writing, the Receiving Party will limit access to Confidential Information of the Disclosing Party to those of its employees and agents who need such access to perform obligations under this Agreement and who are bound by confidentiality obligations substantially similar to those set forth in this Agreement. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior written notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
Proprietary rights; Feedback
1. Reservation of Rights. Company owns and retains all rights, title and interest, including all intellectual property rights, in and to (i) the Services, and all technology (other than Subscriber Content and Subscriber Applications) used to provide the Services, including Digital People and the HumanOS Platform; (ii) Company’s Confidential Information; (iii) the Usage Data; and (iv) any work product or deliverables developed by Company in connection with such professional services (“Company IP”). Other than as expressly set forth in this Agreement, no license or other rights in or to the Company IP are granted to Subscriber, and all such rights are expressly reserved by Company.
2. Subscriber Ownership. As between the parties, Subscriber owns the Subscriber Application (except any Company IP incorporated therein) and Subscriber Content.
3. Feedback. If Subscriber or any of its personnel including any Authorized User, provides comments, suggestions, ideas, or other information or materials regarding the Services (“Feedback”) to Company, Company may use, modify, and incorporate such Feedback to improve or enhance the Services or its other products and services, and Subscriber hereby grants to Company a non-exclusive, perpetual, irrevocable, transferable, sublicensable, worldwide and royalty-free license to use, reproduce, disclose, sublicense, distribute, modify, and otherwise exploit such Feedback without restriction and without any obligation to provide attribution or compensation to Subscriber.
Representations and Warranties
1. Mutual. Each party represents and warrants to the other party: (a) it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (b) this Agreement constitutes a valid, binding, and enforceable obligation upon it; and (c) it has the full right, power, and authority to enter into and perform its obligations under this Agreement.
2. By Subscriber. Subscriber represents, warrants and covenants to Company that (a) Subscriber owns or otherwise has and will have the necessary rights, authorizations, and consents in and relating to the Subscriber Data and Subscriber Content so that, as received by Company and used in accordance with this Agreement, it does not and will not infringe, misappropriate, or otherwise violate any intellectual property rights or privacy rights of any third party or violate any applicable laws or regulations; (b) Subscriber will provide all required notices and obtain all required consents from End Users to allow Company to provide such End Users with the Services, including with respect to electronic communication regulations; (c) Without limiting the obligations under 9.2(b), Subscriber will provide and obtain affirmative binding consent from each End User to the End User Agreement prior to such End Users’ first interaction with the Digital People Services. If Subscriber (or any Authorized User) becomes aware of or suspects any actual or threatened breach of this Agreement or an End User Agreement, or of any malfunction or misuse of the Services, including where any Digital People develops negative, offensive or otherwise inappropriate behaviors (“Negative Cognitive Context”), Subscriber represents, warrants and covenants that it will and will require all Authorized Users to immediately: (i) notify Company of such actual or threatened breach, misuse, or malfunction and assist, at its own cost, Company with investigating such actual or threatened breach, misuse, or malfunction; and (ii) take all reasonable steps in Subscriber control to stop, and if requested by Company to remedy, such actual or threatened breach, misuse, or malfunction.
Indemnification
1. By Company. Company will (a) defend, or at its option, settle, any third-party claim brought against Subscriber alleging that Subscriber’s use as authorized in this Agreement of a Service infringes a third party’s intellectual property or proprietary rights (a “Claim”), and (b) pay any damages awarded in a final judgment (or amounts agreed in a monetary settlement) of the Claim defended by Company; provided that Subscriber provides Company (i) prompt written notice of, (ii) sole control over the defense and settlement of, and (iii) all information and assistance reasonably requested by Company in connection with the defense or settlement of the Claim. If any Claim is brought or threatened, Company may, at its sole option and expense: (w) procure for Subscriber the right to continue to use the applicable Service; (x) modify the Service to make it non-infringing; (y) replace the affected aspect of the Service with non-infringing technology having substantially similar capabilities; or (z) if none of the foregoing is commercially practicable, terminate this Agreement. Notwithstanding the foregoing, Company will have no liability to Subscriber for any claim arising out of or based upon (1) modifications of the Service not performed by Company; (2) Third-Party Components; or (3) use of the Service in combination with software, products or services not provided by Company; to the extent that the Service would not be infringing but for such combination or modification, (4) for Subscriber’s failure to use the Service in accordance with this Agreement, or (5) for any claims related to Subscriber Data or Subscriber Content. THIS SECTION 10.1 STATES THE ENTIRE LIABILITY OF COMPANY, AND THE EXCLUSIVE REMEDY OF SUBSCRIBER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY COMPANY, THE SERVICE OR OTHER COMPANY IP, OR ANY PART THEREOF.
2. By Subscriber. Subscriber will defend, or at its option, settle any claim brought against Company or its affiliates or their employees or agents: (i) alleging that the use by or on behalf of Company of the Subscriber Data or Subscriber Content or that the Subscriber Application(s) infringes or misappropriates any third party’s rights or violates any laws or regulations; (ii) arising out of any alleged breach by Subscriber or any Authorized User of this Agreement or applicable Ordering Document; or (iii) arising from Subscriber’s or any Authorized User’s violation of any applicable laws or regulations. Subscriber will pay all damages finally awarded against Company (or the amount of any settlement Subscriber enters into) with respect to such claim defended by Subscriber. Company agrees to provide Subscriber with (i) prompt written notice of; (ii) sole control over the defense and settlement of; and (iii) all information and assistance reasonably requested by Subscriber in connection with the defense or settlement of, any such claim. Company may appear in connection with such claims, at its own expense, through independent counsel.
Disclaimer; Limitation of liability
1. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, COMPANY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, OPERABILITY, USE, UNAUTHORIZED ACCESS TO OR USE OR LOSS OF DATA, ACCURACY OF RESULTS, OR OTHERWISE ARISING FROM A COURSE OF DEALING OR RELIANCE. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED, THAT THE SERVICES WILL BE COMPATIBLE WITH ANY PARTICULAR DEVICE, THAT ANY DATA PROCESSED BY COMPANY WILL BE ACCURATE, OR THAT ITS SECURITY MEASURES WILL BE SUFFICIENT TO PREVENT UNAUTHORIZED ACCESS TO OR USE OR LOSS OF DATA, SUBSCRIBER CONTENT, OR SUBSCRIBER APPLICATIONS. COMPANY SPECIFICALLY DISCLAIMS ALL RESPONSIBILITY FOR ANY THIRD-PARTY COMPONENTS, PRODUCTS, OR SERVICES PROVIDED WITH THE COMPANY SERVICES AND FOR THE AVAILABILITY OR SUBSCRIBER’S USE OF ANY DATA OR INFORMATION STORED ON THE SERVICE. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.
2. Limitation of Liability. EXCEPT FOR SUBSCRIBER’S INDEMNIFICATION OBLIGATIONS AND A BREACH OF SUBSCRIBER’S CONFIDENTIALITY OBLIGATIONS, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, TREBLE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, DATA, OR ECONOMIC ADVANTAGE, AND COSTS OF SUBSTITUTE GOODS OR SERVICES) ARISING OUT OF OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED, AND BASED ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, TORT, OR OTHERWISE, EVEN IF THE OTHER PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY’S TOTAL LIABILITY IN CONTRACT OR TORT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE GREATER OF (A) FEES PAID BY SUBSCRIBER DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE, AND (B) $500. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY.
Dispute Resolution and Governing Law
1. Subscribers in the United States.
  1. Governing Law and Venue. If Subscriber (or its Authorized Users) are using the Services in the United States, this Section 12.1 will apply and this Agreement will be governed by and construed under the laws of the State of California without regard to conflict of law principles. Except as specified in Section 12.1.2, the parties agree to submit to the exclusive jurisdiction of the state and federal courts located in San Francisco County, California for resolution of any lawsuit or court proceeding permitted under this Agreement.
  2. Arbitration.
    1. Generally. Except as described in Section 12.1.2.2 and 12.1.2.3, Subscriber and Company agree that every dispute arising in connection with this Agreement will be resolved by binding arbitration. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. SUBSCRIBER UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, SUBSCRIBER AND COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
    2. Exceptions. Despite the provisions of Section 12.1.2.1, nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
    3. Opt-Out. Subscriber may opt out of this Section 12.1.2 within thirty (30) days after the Effective Date by sending a letter to Soul Machines, Inc., Attention: Legal Department – Arbitration Opt-Out, 44 Tehama Street, San Francisco, CA 94105 that specifies: Subscriber’s full entity or legal name, reference to Subscriber’s Ordering Document, the email address associated with Subscriber’s use of the Service, and a statement that Subscriber wishes to opt out of arbitration (“Opt-Out Notice”). Once Company receives Subscriber’s Opt-Out Notice, this Section 12.1.2 will be void and any action arising out of this Agreement will be resolved as set forth in Section 12.1.1. The remaining provisions of this Agreement will not be affected by Subscriber’s Opt-Out Notice.
    4. Arbitrator. Any arbitration between Subscriber and Company will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by this Agreement. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
    5. Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Company’s address for Notice is Soul Machines, Inc., 44 Tehama Street, San Francisco, CA 94105. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, Subscriber or Company may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by Subscriber or Company must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards Subscriber an amount higher than the last written settlement amount offered by Company in settlement of the dispute prior to the award, Company will pay to Subscriber the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
    6. Fees. If Subscriber commences arbitration in accordance with this Agreement, Company will reimburse Subscriber for Subscriber’s payment of the filing fee, unless Subscriber’s claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in San Francisco county, California, but if the claim is for $10,000 or less, Subscriber may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of Subscriber’s billing address. If the arbitrator finds that either the substance of Subscriber’s claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, Subscriber agrees to reimburse Company for all monies previously disbursed by it that are otherwise Subscriber’s obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within fourteen (14) days of the arbitrator’s ruling on the merits.
    7. No Class Actions. SUBSCRIBER AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN SUBSCRIBER’S OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both Subscriber and Company agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
    8. Modifications to this Arbitration Provision. If Company makes any future change to this arbitration provision, other than a change to Company’s address for Notice of Arbitration, Subscriber may reject the change by sending us written notice within 30 days of the change to Company’s address for Notice of Arbitration, in which case Subscriber’s account with Company will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes Subscriber rejected will survive.
    9. Enforceability. If Section 12.1.2.1 or the entirety of this Section 12.1.2 is found to be unenforceable, or if Company receives an Opt-Out Notice from Subscriber, then the entirety of this Section 12.1.2 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 12.1.2.1 will govern any action arising out of or related to this Agreement.
2. Subscribers Outside of the United States.
  1. Governing Law and Venue. If Subscriber (or its Authorized Users) are using the Services outside of the United States, this Section 12.2 will apply and this Agreement will be governed by and construed under the laws of the England and Wales without regard to conflict of law principles. Except as specified in Section 12.2.2, the parties agree to submit to the exclusive jurisdiction of the courts located in London, England for resolution of any lawsuit or court proceeding permitted under this Agreement.
  2. Arbitration. Other than with respect to the right of either party to apply to a court of competent jurisdiction for a preliminary injunction or other equitable relief to preserve the status quo or prevent irreparable harm, any dispute arising under or relating to this Agreement, including as to the interpretation, enforcement, breach, or termination of this Agreement, will be settled by confidential binding arbitration, conducted in the English language, in London, England under the Rules of Arbitration of the International Chamber of Commerce by one arbitrator appointed in accordance with those rules. Judgment upon the award rendered by the arbitrators may be entered in any court of competent jurisdiction. The prevailing party will be entitled to receive from the other party its attorneys’ fees and costs incurred in connection with any arbitration or litigation instituted in connection with this Agreement.
General provisions
1. Audit. Subscriber will maintain reasonable and accurate records and accounts relating to the Services and Subscriber’s use of the Services during the term of this Agreement and for two (2) years following termination or expiration of this Agreement. These records will include all documents and other information relevant to the performance by Subscriber of its rights and obligations under this Agreement. Upon reasonable advance notice, Company may request in writing to inspect such records. Subscriber shall cooperate with and disclose and produce any and all documentation reasonably requested by the Company. Company’s audit may include reviewing and preserving certain documentation that may include Subscriber Data.
2. Force Majeure; Delays. Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including without limitation an act of war, terrorism, act of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act, epidemic, pandemic, or failure or degradation of the Internet. Company is not responsible for liable for any delay or failure of performance caused in whole or in part by Subscriber’s delay in performing, or failure to perform any of its obligations under the Agreement.
3. Publicity. Company may use Subscriber’s name as a reference for marketing or promotional purposes on Company’s website and in other communication with existing or potential Company customers, subject to any written trademark policies Subscriber may provide Company in writing, with reasonable advanced notice.
4. Export Controls. Subscriber agrees to comply with all applicable export control laws and regulations related to its use of Company IP.
5. Notices. Any notices required or permitted under this Agreement must be submitted to (i) the mailing address or email address on file with Company, in the case of Subscriber or (ii) [email protected] 44 Tehama Street, San Francisco, CA 94105, in the case of Company. Each notice will be deemed delivered on the date the sender can reliably confirm the notice was sent. By using the Services, Subscriber consents to receive certain electronic communications from Company. Company agrees that any notices, agreements, disclosures, or other communications that Company sends to Subscriber electronically will satisfy any legal communication requirements, including that those communications be in writing.
6. Miscellaneous. Subscriber may not assign this Agreement without Company’s prior express written consent, and any change of control undergone by Subscriber, whether via merger, sale of stock, sale of all or substantially all assets, or otherwise, will be deemed an assignment of this Agreement. Company may assign this Agreement freely in its sole discretion. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. This Agreement, including any Ordering Documents, constitutes the entire agreement between the parties concerning the subject matter hereof, and supersedes all prior agreements and understandings with respect to said subject matter, whether oral or written, express or implied. No terms of any purchase order, acknowledgement, or other form provided by Subscriber will modify this Agreement, regardless of any failure of Company to object to such terms. Except as set forth in this Agreement, this Agreement may only be amended in a writing signed by the parties. In the event of any conflict between the terms of his Agreement and an Ordering Document, the Ordering Document will govern. Any ambiguity in this Agreement will be interpreted without regard to which party drafted this Agreement or any part thereof. The relationship between the parties will be that of independent contractors. Any waiver of a right arising under this Agreement must be made in writing and signed by the party making the waiver. Waiver of any term of this Agreement will not constitute a waiver as to any subsequent breach or failure of the same term or a waiver of any other term of this Agreement. Subscriber agrees that any violation or threatened violation of this Agreement would cause irreparable injury to Company for which monetary damages would not be an inadequate remedy, entitling Company to seek injunctive relief in addition to all legal remedies, without the posting of any bond (or any other security) or proof of actual damages. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, then the remaining provisions of this Agreement will remain in effect.