USER TERMS AND CONDITIONS
We, Soul Machines Limited (“we”, “us”, “our”), are a company of AI researchers, neuroscientists, psychologists, artists and innovative thinkers. We use neural networks that combine biologically inspired models of the human brain and key sensory networks to create a virtual central nervous system that we call our “Digital People”™. The Digital People, our website, along with our related applications, and other services provided by us will be collectively called the “Service”.
BY CLICKING “I ACCEPT,” OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING SOUL MACHINES’ PRIVACY POLICY (TOGETHER, THESE “TERMS”). IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE. YOUR USE OF THE SERVICE, AND SOUL MACHINES’ PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY SOUL MACHINES AND BY YOU TO BE BOUND BY THESE TERMS. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
Arbitration Notice for users in the United States. Except for certain kinds of disputes described below, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND SOUL MACHINES ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS UNDER THIS AGREEMENT (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT). YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY.
The Terms
These Terms govern your access and use of the Service.
Please read these Terms carefully before you access the Service. These Terms tell you who we are, how we will provide access to the Service, how you and we may change or end the agreement, what to do if there is a problem and other information.
These Terms are supplemental to any other agreement you may have with us or other third parties, including our commercial partners who are utilizing the Digital People.
Information about us and how to contact us
We are Soul Machines Limited a company registered in New Zealand under company number 6014687, with our registered address as set out below.
You can contact us as follows:
FAO: Director of Licensing and Consumer Business Development
Address: L1, 106 Customs Street West, Auckland, 1010 New Zealand
Email: support@soulmachines.com
Changes to the Terms
We may revise the Terms from time to time, for example if there are changes to relevant laws and regulatory requirements or changes to our business practices. If we revise these Terms we will post the revised Terms on this webpage and update the “Last Updated” date below. Unless otherwise expressly agreed in writing, your access will be subject to the most recent version of the Terms available on this webpage.
Immaterial modifications are effective upon publication. You will be required to accept the then-current version of these Terms with each instance of accessing the Service. We recommend that you read through the Terms available on this webpage regularly so that you can be sure that you are aware of any changes that may apply to you.
Except as expressly permitted in this Section 3, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms.
These Terms were last updated in March 2021.
Important information about your data
Our Digital People will provide you with more personalized and tailored customer support by responding to your facial and vocal expressions. In order to provide such a tailored experience, it is necessary for our Digital People to obtain information about you, including through your computing device and any embedded microphone or camera. If you wish to disable your microphone or camera, please consult your device settings for information about how to disable these features. Please note that if you do disable your microphone or camera we will not be able to provide you with full access to all the features of our Digital People.
Any personal information that we collect from you as you access the Service will be used in accordance with our privacy notice. To find out more about the data we collect from you and how we use it please read our privacy notice available here.
Access to the Digital People
By accessing the Service directly provided by us, you confirm that you have read, understand and agree to be bound by the rules set out in these Terms.
Our Digital People are not intended for children. If you are under the age of 18, please do not access our Digital People at any time or in any manner.
Unless otherwise agreed, access to the Service is currently made available to you free of charge.
Access to the Service is permitted on a temporary basis. We may suspend, withdraw, discontinue or change all or any part of the Service without notice to you.
Subject to your continued compliance with these Terms, we hereby grant to you a non-exclusive, non-transferable, non-sublicensable, revocable, license to access and use the Service for your own personal use. If you breach any provision of these Terms, this license will immediately terminate and you must immediately cease use of the Service.
You are responsible for making all arrangements necessary for you to have access and use the Service.
You are responsible for ensuring that all persons who access or use the Service through your internet connection are aware of these Terms and other applicable terms and conditions, and that they comply with them.
Certain features of the Service may permit users to upload content to the Service, including messages, reviews, images, data, text, and other types of works (“User Content”). You retain any copyright and other proprietary rights that you may hold in the User Content that you post to the Service. By providing User Content to or via the Service, you grant Soul Machines a worldwide, non-exclusive, irrevocable, 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 your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed.
Acceptable use
You agree not to and not to permit any third party to:
A. access or use, or attempt to access or use, any Service to take any action that could harm us or any third party, interfere with or harm any part of the Service or the operation thereof, or use any Service (including by providing information to the Digital People) in any manner that violates any laws or third-party rights;
B. copy the Service (or any element thereof) except where such copying is incidental to normal use or access of the Digital People, or where it is necessary for the purpose of back-up or operational security;
C. not access or use the Service in any way that causes or may cause, damage to the Service or impairment of the availability or accessibility of the Service;
D. not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Service (or any element thereof);
E. modify, translate, reverse engineer, disassemble, decompile or create derivative works of the Service, or allow a third party, directly or indirectly, to do any of the foregoing;
F. permit any third party to access or use the Service except as expressly permitted by these Terms and, in the case of Third Party Content, any applicable third-party license agreement;
G. post, use, store or transmit information that is false, incomplete, outdated, infringing or misappropriating any third party intellectual property right, unlawful or otherwise violate of third party rights, libelous, defamatory, deceptive, obscene, fraudulent, predatory of minors, harassing, threatening or hateful;
H. disrupt or attempt to disrupt the operation of the Service by any method, including through use of viruses, Trojan horses, worms, time bombs, denial of service attacks, flooding or spamming or use any robot, scraper or similar technology;
I. attempt to gain unauthorized access to any user accounts, computer systems or networks, or perform any fraudulent activity including impersonating any person or entity; or
J. engage in behavior towards the Digital People, or encourage the Digital People to engage in behavior, which we deem to be abusive, unlawful, libelous, defamatory, deceptive, obscene, fraudulent, predatory of minors, harassing, threatening, hateful or otherwise harmful or offensive.
Third party content
By accessing the Service, third party services (including data, information, applications, and other products, services, and/or materials) or links (including to third-party websites, applications or services) (collectively, “Third Party Content”) may be made available to you. By using any Third Party Content, you agree that Soul Machines may transfer your information to the applicable third party service. We have no control over any Third Party Content and we are not responsible or liable for such Third Party Content in any way, including its use of your exported information.
The Service may include or incorporate third party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third Party Components under the applicable third party licenses or to limit your use of Third Party Components under those third party licenses.
Third Party Content and Third Party Components are provided “AS IS” and “AS AVAILABLE”, Soul Machines disclaims all warranties of any kind, whether express or implied, relating to the Third Party Content and Third Party Components and all materials and content available through the Third Party Content and Third Party Components.
Intellectual property
We are the owner or the licensee of all intellectual property rights in the Service, our Digital People or any element thereof. Any and all features, content, materials and information available via the Service (with the exception of Third Party Content) are owned or licensed by us and shall remain owned or licensed by us at all times. Except as expressly authorized by Soul Machines, you may not make use of the Service and Soul Machines reserves all rights to the Service not granted expressly in these Terms.
If you copy, use or access any part of the Service in breach of the Terms, your right to use and access the Service will cease immediately and you must destroy any copies of the materials you have made.
All right, title and interest in and to any Third Party Content shall remain with the respective rights holders.
Feedback
We are always looking to try and improve our technology and our Digital People so would welcome any comment, questions, suggestions or ideas (“Feedback”) you have may about us or our Service. By submitting Feedback to us you agree that we may use your Feedback in any way without obligation to you.
Indemnity
To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify Soul Machines and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Soul Machines Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
Disclaimers; No Warranties
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. SOUL MACHINES DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. SOUL MACHINES DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND SOUL MACHINES DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR SOUL MACHINES ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE SOUL MACHINES ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW
Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE SOUL MACHINES ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY SOUL MACHINES ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS SET FORTH IN SECTION 13, THE AGGREGATE LIABILITY OF THE SOUL MACHINES ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO SOUL MACHINES FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (B) $100.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 12 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Other important terms
These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated (a) by Soul Machines, at any time, in its discretion, or (b) by you by ceasing all use of the Service. Upon termination of this terms: (a) your license rights will terminate and you must immediately cease all use of the Service; and (b) any terms which by their nature are intended to survive, shall survive termination of these Terms.
We may transfer our rights and obligations under these Terms to another organization, but this will not affect your rights or our obligations under these Terms. You may only transfer your rights or obligations under these Terms to another person if we agree in writing.
Nobody else has any rights under these Terms, this agreement is between you and us. No other person shall have any rights to enforce any of its terms.
Each of the paragraphs of these Terms operates separately. If any court or relevant authority decides that any part of the Terms are unlawful, the remaining parts will remain in full force and effect.
If we do not insist immediately that you do anything you are required to do under these Terms, or if we delay in taking steps against you in respect of your breach of these Terms, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
If you are using the Service outside of the United States, these Terms and any non-contractual obligations arising out of them shall be governed by and construed in accordance with New Zealand law, without regard to conflict of law principles and you and Soul Machines agree to submit to the exclusive jurisdiction of the state and federal courts located in Auckland, New Zealand for resolution of any lawsuit or court proceeding permitted under these Terms. If you are using the Service in the United States, these Terms and any non-contractual obligations arising out of them shall be governed and construed in accordance with California law, without regard to conflict of law principles and except as stated in Section 13.7, you and Soul Machines 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 these Terms.
Arbitration for users in the United States.
A. Generally. Except as described in below, you and Soul Machines agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, 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 these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND MACHINES ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
B. Exceptions. Despite the provisions of this Section, nothing in these Terms 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.
C. Opt-Out. You may opt out of this Section 13.7 within thirty (30) days after the effective date of these Terms by sending a letter to Soul Machines, Inc., Attention: Legal Department – Arbitration Opt-Out, 44 Tehama Street, San Francisco, CA 94105 that specifies: your full entity or legal name and a statement that you wishes to opt out of arbitration (“Opt-Out Notice”). Once Soul Machines receives your Opt-Out Notice, this Section 13.7 will be void and any action arising out of these Terms will be resolved as set forth in Section 13.6. The remaining provisions of these Terms will not be affected your Opt-Out Notice.
D. Arbitrator. Any arbitration between you and Soul Machines 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 these Terms. 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.
E. 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”). Soul Machines’ 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, you or Soul Machines 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 you or Soul Machines must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Soul Machines in settlement of the dispute prior to the award, Soul Machines will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
F. Fees. If you commence arbitration in accordance with these Terms, Soul Machines will reimburse you for your payment of the filing fee, unless your 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, You 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 your billing address. If the arbitrator finds that either the substance of your 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, you agree to reimburse Soul Machines for all monies previously disbursed by it that are otherwise your 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.
G. No Class Actions. YOU AND SOUL MACHINES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Soul Machines 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.
H. Enforceability. If Section 13.7 is found to be unenforceable, or if Soul Machines receives an Opt-Out Notice, then the entirety of this Section 13.7 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 13.6 will govern any action arising out of or related to these Terms.
By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.