CREATOR LICENSE AGREEMENT
- PARTIES. This Creator Demonstration License Agreement, together with the incorporated Terms and Conditions (collectively the “Agreement”), is entered into by Soul Machines, Inc. (“Soul Machines”), a Delaware corporation, with its principal office located at 44 Tehama Street, Suite 411, San Francisco CA 94105; and the individual or entity intending to access or use the License and Services (described below) who accepts the terms of this Agreement (the “Licensee”). This Agreement shall be effective as of the date acceptance is electronically acknowledged by the Licensee or the date of first use of the License, whichever shall first occur (the “Effective Date”).
2. ELECTRONIC ACCEPTANCE. THIS AGREEMENT IS AN ELECTRONIC CONTRACT THAT SETS OUT THE LEGALLY BINDING TERMS OF LICENSEE’S USE OF THE LICENSE AND SERVICES IDENTIFIED IN THIS SOUL MACHINES IS ALLOWING USE OF THE LICENSE SOLELY ON THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT (INCLUDING THE TERMS AND CONDITIONS INCORPORATED BELOW IN SECTION 4) AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THIS AGREEMENT. BY CLICKING THE BUTTON ACKNOWLEDGING ACCEPTANCE AND/OR BY ACCESSING OR OTHERWISE USING SOUL MACHINES’ SERVICES AND ANY ASSOCIATED SOFTWARE, LICENSEE EXPRESSLY AGREES TO BE BOUND BY EACH OF THE TERMS CONTAINED IN THIS AGREEMENT. LICENSEE AGREES SOUL MACHINES MAY PROVIDE A COPY OF THIS AGREEMENT IN ELECTRONIC FORM.
IF YOU ARE ELECTRONICALLY ACCEPTING THIS AGREEMENT ON BEHALF OF ANOTHER PERSON, COMPANY, OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND SUCH PERSON, COMPANY, OR LEGAL ENTITY, AND YOU WILL BE JOINTLY AND SEPARATELY LIABLE FOR ALL USE OF THE LICENSE AND SERVICES BY ANY SUCH PERSON, COMPANY, OR LEGAL ENTITY.
3. SOUL MACHINES’ SOFTWARE AND SERVICES. Soul Machines owns products and services consisting of a graphical user interface resembling an animated, human character (“Digital People”) that, when interconnected with the HumanOS Platform, is capable of processing and responding to audio, visual and textual information provided to or from the Customer (or its Permitted Users) when such users access, and interact with, the Digital Services includes any technical support and maintenance services as generally offered by Soul Machines from time to time, and the collective software, platforms, software and services are collectively referred to in this Agreement as the “Services.” The Services are described more fully in the then-current version of any supporting technical documentation or other materials
Soul Machines provides to Customer either directly, or which is made available on the Soul Machines’ website that, among other things, sets out a more detailed description of the Services including any aspect of the features, functionality or requirements of the Services or the user instructions for the Services (“Documentation”). The Services are provided for use only in strict compliance with this Agreement.
4. LICENSE. Soul Machines hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable right during the Term of this Agreement (defined below) to access and use the Services, solely for the purpose of evaluating the Services as a resource to be integrated and used by Licensee in the enhancement and development of Licensee’s own products, services, and technology. Any and all use of the Services will be subject to and in accordance with Soul Machines’ terms and conditions located at https://studio.soulmachines.cloud/terms-and-conditions as the same may be updated by Soul Machines from time to time (“Terms and Conditions”), and as modified by the rights granted to Licensee in this Agreement. The Terms and Conditions are incorporated into this Agreement and, as modified herein, the Terms and Conditions and this Agreement taken together constitute the complete Agreement between the parties. All references to “Customer” in the Terms and Conditions shall mean and include Licensee for purposes of this Agreement. Any capitalized terms not defined in this Agreement, but appearing in the Terms and Conditions, shall have the same definition as used in the Terms and Conditions. In the event of a conflict between the language in this document, and the provisions in the Terms and Conditions, the terms contained in this document shall control.
5. FEES AND EXPANDED The License granted by Soul Machines during the Term of this Agreement is royalty free, and Licensee will not be charged any fees including use, subscription fees, service fees or support fees for the License under this Agreement. Accordingly, Section 6 of the Terms and Conditions shall not apply to this Agreement. In the event Licensee elects to continue use of the Services beyond the Term of this Agreement, or requests expanded Services, technical support, or other matters beyond the scope of this Agreement, the parties shall enter into a separate written agreement or Order Form defining the scope of use, applicable fees and other matters all of which shall be subject to the Terms and Conditions.
6. TERM AND TERMINATION. Section 7 of the Terms and Conditions shall not apply to this Agreement, and instead the following shall govern the Term and Termination of this
6.1 Term. This Agreement will commence upon the Effective Date and continue until Licensee has accessed and utilized One Hundred (100) conversations with one or more Digital People, at which time the License shall automatically expire. (“Term”). Notwithstanding the foregoing, or any provision of this Agreement to the contrary, the Term of this Agreement may be extended on written notice from Soul Machines to Licensee (an “Extension Notice”). Licensee’s continued use of the Services following receipt of an Extension Notice shall constitute acceptance of any extension contained in the Extension Notice and ratification of all of all remaining terms and conditions contained in this Agreement during the Term as modified by the Extension Notice. Upon expiration of the Term, or any extension of the Term as provided above, this Agreement shall automatically terminate unless it was earlier terminated in accordance with the provisions of this Agreement.
6.2 Termination without Cause. Either party may terminate this Agreement without cause upon ten (10) days prior written notice to the other party.
6.3 Termination for Cause; Suspension. Soul Machines may terminate this Agreement immediately upon notice to Licensee if Soul Machines reasonably believes Licensee is in breach of this Agreement or the Terms and Conditions. In addition, and without prejudice to any other rights or remedies available to Soul Machines, Soul Machines may suspend Licensee’s, and/or any Permitted User’s access to the Services in the event Soul Machines, in its discretion, determines that: (a) Licensee, or any of its Permitted Users, has breached any term of this Agreement; (b) the Services are being or have been accessed or used (including unauthorized access by any third party) in breach of this Agreement, applicable law, or in a manner that threatens the security, integrity or availability of the Services; (c) suspension is necessary to protect Soul Machines’ or its Affiliates’ other customers or users of the Services or the reputation of Soul Machines or its Affiliates or the Services (including, without limitation, if any Digital People develop a Negative Cognitive Context); or (d) suspension is required by applicable law or an order from a court of competent jurisdiction.
6.4 Effects of Expiration/Termination; Survivability. Upon expiration of the Term, including any extensions provided under an Extension Notice, or upon the earlier termination by either party, Licensee shall immediately: (a) cease any further use of, or access to, Soul Machines Services and use of the License; (b) cease and no longer be authorized to access Soul Machines’ computer systems, platforms or non-public electronic sites; (c) return or destroy all materials related to Soul Machines Services, including any Documentation and any Confidential Information, and Licensee shall provide Soul Machines with evidence of any such destruction. Upon expiration or termination, all provisions in the Agreement, and in the Terms and Conditions, that, by their nature or content should survive the termination in order to achieve the fundamental purpose of the Agreement, shall survive any such expiration or termination.
7. LICENSEE’S OBLIGATIONS.
7.1 Expense of Doing Business. Licensee will bear all costs, taxes, and expenses of conducting its business in accordance with the terms of this Agreement. Licensee shall be independently responsible for its access and use of the Services by Licensee, its employees, agents, and Permitted Users.
7.2 Use of Soul Machines’ Trade Name. Licensee shall not use, post, publish or duplicate, Soul Machines’ trademarks, service marks, trade names, logos, designs and other designations used by Soul Machines in connection with the Soul Machines Services (collectively, the “Soul Machines Marks”). Licensee will not alter the Soul Machines Marks in any way or remove the Soul Machines Marks from any materials provided by Soul Machines. Any goodwill in Soul Machines Marks resulting from Licensee’s use thereof inures solely to the benefit of Soul Machines and will not create any right, title, or interest for Licensee in the Soul Machines Marks. Soul Machines shall at all times remain the sole and exclusive owner of its intellectual property and the Soul Machines Marks. Upon Soul Machines’ request, Licensee or its individual agents or employees, shall execute, acknowledge and deliver such assignments, certificates or other documents as Soul Machines may consider necessary or appropriate to properly vest in Soul Machines all right, title and interest in such property and Soul Machines Marks.
8. WARRANTY DISCLAIMER. NOTWITHSTANDING SECTION 4.1 OF THE TERMS AND CONDITIONS TO THE CONTRARY, SOUL MACHINES MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. LICENSEE ACCEPTS ALL SOUL MACHINES’ PRODUCTS, DOCUMENTATION, AND SERVICES “AS IS” AND “WITH ALL FAULTS,” AND SOUL MACHINES EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, AND TITLE. SOUL MACHINES DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SOUL MACHINES SERVICES OR AGAINST INFRINGEMENT. LICENSEE WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF SOUL MACHINES TO ANY OTHER THIRD PARTY.
9. LIMITATION OF LIABILITY. Section 5 of the Terms and Conditions shall not apply to this Agreement, and instead the following shall be applicable to Limitation of Damages and
9.1 Disclaimer of Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, SOUL MACHINES WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO LICENSEE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF LICENSEE IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
9.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL SOUL MACHINES’ TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED $500 IN THE AGGREGATE. THE PARTIES AGREE THAT THE LIMITATIONS SPECIFIED IN THIS SECTION SHALL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED ITS ESSENTIAL
10.1 Relationship of the Parties. The relationship of the parties is that of licensor/licensee and/or vendor/customer. There is no relationship of partnership, joint venture, employment, franchise or agency created between the parties and none is created by this Agreement. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
10.2 Non-Assignability and Binding Effect. Licensee shall not assign its rights and obligations under this Agreement without the express written consent of Soul Machines. Soul Machines may assign this Agreement to a successor by way of merger, acquisition, sale of all or substantially all of its assets or ownership interests or operation of law), which assignment to a party’s successor shall only be effective after written notice of such assignment to Licensee. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their successors and assigns.
10.3 Notices. Notice to Soul Machines under this Agreement must be in writing and sent by postage prepaid first-class mail, or receipted courier service to the address in Section 1, or by email addressed to [email protected] All notices to Soul Machines will be effective upon receipt during normal business hours, or on the next business day if received by Soul Machines after normal business hours. Licensee agrees to receive all notices in writing addressed to the email address provided by Licensee at the time of acceptance of this Agreement, and that notice sent to the email address of any user of the Services shall constitute written notice to such user. Email notice to Licensee will be deemed effective at the time shown in an email transmission confirmation unless Soul Machines learns the notice did not reach the person to whom the Notice was sent. Either party may change its address for receipt of notices by giving Notice to the other party in accordance with this Section.
10.4 Force Majeure. Nonperformance of either party will be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts, orders or restrictions, or any other reason where failure to perform is beyond the control and not caused by the negligence of the non-performing party.
10.5 Foreign Corrupt Practices Act. In conformity with the United States Foreign Corrupt Practices Act, Licensee and its employees and agents will not directly or indirectly make and offer payment, promise to pay, or authorize payment, or offer a gift, promise to give, or authorize the giving of anything of value for the purpose of influencing an act or decision of an official of any government within the Territory or the United States Government (including a decision not to act) or inducing such a person to use his influence to affect any such governmental act or decision in order to assist Soul Machines in obtaining, retaining, or directing any such business.
10.6 Governing Law and Litigation. The laws of the State of California govern this Agreement, without giving effect to provisions related to choice of laws or conflict of The application of the United Nations Convention on the Sale of Goods is not applicable and expressly disclaimed by the parties. Venue and jurisdiction of any lawsuit involving this Agreement exists exclusively in the state and federal courts in San Francisco County, California, and each party hereby consents to personal jurisdiction in such courts, and to venue in San Francisco, California.
10.7 Waiver and Severability. The waiver by either party of any breach of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation under this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement. Any provision of this Agreement that is prohibited or determined to be unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions of this Agreement, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by Law, each Party hereby waives any provision of Law that renders any such provision prohibited or unenforceable in any respect
10.8 Entire Agreement. This Agreement, including the applicable Terms and Conditions, is the final and complete expression of all agreements between these parties and supersedes all previous oral and written agreements regarding these It may be changed only by a written agreement signed by the party against whom enforcement is sought.