LAST UPDATED MAY 25 , 2023
ZIBRA AI INC. (“Zibra AI” or “we”) provides the website service that allows you (“You” or “User”) to purchase the license, which will enable You to use the Software or the Restricted Functionality Software (all as defined below) with all the necessary updates and support services on the terms provided below (collectively “Service”).
Please read the following terms and conditions (“Terms of Service”) and our Privacy Policy, which is incorporated in these Terms of Service, carefully.
This Service includes subscriptions that automatically renew. To avoid being charged, you must affirmatively cancel your subscription at least 24 hours before the end of the free trial or then-current subscription period.
These Terms of Service govern Your access to and use of the Software or the Restricted Functionality Software (all as defined below) under the Indie Plan only. The Indie Plan is available for Eligible Indie Users (as defined below) only. If You do not meet the criteria established for Eligible Indie Users, You shall not be entitled to use the Software under the Indie Plan and should contact Zibra AI to purchase access to the Software under the Studio Plan or Enterprise Plan.
All terms with regards to the use of the Software under the Studio Plan or Enterprise Plan (as defined below) are not covered by these Terms of Service and shall be governed by a separate agreement between You and Zibra AI.
BY ACCESSING OR USING THE SERVICE, OR BY PURCHASING THE SUBSCRIPTION, DOWNLOADING, INSTALLING, OR USING THE SOFTWARE OR THE RESTRICTED FUNCTIONALITY SOFTWARE, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE AND PRIVACY POLICY. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, YOU HAVE NO RIGHT TO ACCESS OR USE THE SERVICE.
YOU ACKNOWLEDGE THAT ALL FEES PAID FOR THE SERVICES ARE NON-REFUNDABLE, EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS OF SERVICE OR AS REQUIRED BY APPLICABLE LAW.
PLEASE NOTE: THESE TERMS OF SERVICE CONTAIN A BINDING ARBITRATION PROVISION IN CLAUSE 14 THAT AFFECTS YOUR RIGHTS WITH RESPECT TO ALL SERVICE(S). THE ARBITRATION PROVISION REQUIRES THAT DISPUTES BE RESOLVED IN ARBITRATION ON AN INDIVIDUAL BASIS. IN ARBITRATION, THERE IS NO JUDGE OR JURY, AND THERE IS LESS APPELLATE REVIEW THAN IN COURT.
FURTHERMORE, THESE TERMS OF SERVICE CONTAIN DISCLAIMERS OF WARRANTIES, LIMITATIONS OF LIABILITY, AND A CLASS ACTION WAIVER.
1. Definitions
In these Terms of Service, the following definitions shall have the meaning assigned to them in this clause unless the context requires otherwise:
“Eligible Indie User” means an individual or a legal entity that meets the following criteria:
- it develops a Product independently, without the support of a video game publisher; and
- it has an annual budget for the development of the Product of USD20,000 or less; and
- it does not use the Software for the development of the Product for a third party upon an order or request of such third party;
“Enterprise Plan” means the Subscription Plan, which includes access to the Software and additional features listed in the description of the relevant Subscription Plan at: https://effects.zibra.ai/pricing
“Indie Plan” means the Subscription Plan, which includes access to the Software and additional features listed in the description of the relevant Subscription Plan at: https://effects.zibra.ai/pricing. The Indie Plan is available for Eligible Indie Users only;
“License” has the meaning assigned to this term in clause 4.1;
“Licensed Software” has the meaning assigned to this term in clause 4.1;
“Product” has the meaning assigned to this term in clause 4.2;
“Restricted Functionality Software” means the Software with limited functionality, which is not supported, updated, or modified by Zibra AI as described in clause 6.4. The Software becomes the Restricted Functionality Software in cases and according to the terms provided by clause 6.4;
“Software” means “Zibra Effects”, a cross-platform GPU-based plugin for real-time Liquids, Smoke, and Fire physics simulation and rendering;
“Studio Plan” means the Subscription Plan, which includes access to the Software and additional features listed in the description of the relevant Subscription Plan at: https://effects.zibra.ai/pricing;
“Subscription” has the meaning assigned to this term in clause 3.3;
“Subscription Plan” has the meaning assigned to this term in clause 3.3;
“Support Services” means services listed on the relevant page of the Subscription Plan https://effects.zibra.ai/pricing provided by Zibra AI to You during the applicable subscription period; and
“Updates” has the meaning assigned to this term in clause 4.4.
2. Modification and Eligibility
2.1 Modification
WE RESERVE THE RIGHT TO CHANGE THESE TERMS OF SERVICE AT ANY TIME, IN OUR SOLE DISCRETION AND WITHOUT PRIOR NOTICE TO YOU. PLEASE CHECK THESE TERMS OF SERVICE PERIODICALLY FOR CHANGES. When changes are made, we will make a new copy of these Terms of Service available on this website. We will also update the “Last Updated” date at the top of the Terms of Service. Any changes to the Terms of Service will be effective immediately, unless otherwise is indicated in the relevant versions of the Terms of Service.
We may provide you with a notice about some critical changes, for example, by email or by posting notifications on the Service, but are not obliged to do so in every case.
If You do not agree to any change(s) or modifications to these Terms of Service, You must stop using the Service. Otherwise, Your continued use of the Service constitutes Your acceptance of such change(s) or modifications.
NOTE: IF YOU DOWNLOADED, INSTALLED, OR STARTED USING THE SOFTWARE BEFORE 25 MAY 2023, YOUR SOFTWARE WILL BE AUTOMATICALLY UPGRADED TO ZIBRA EFFECTS, AND YOUR USE OF THE SOFTWARE SHALL BE GOVERNED BY THE TERMS OF SERVICE THAT WERE IN EFFECT AT THE TIME OF YOUR SUBSCRIPTION PURCHASE. ZIBRA AI CAN MAKE AVAILABLE A COPY OF SUCH TERMS OF SERVICE FOR YOU UPON REQUEST VIA E-MAIL SUPPORT@ZIBRA.AI
AFTER THE EXPIRATION OF THE RELEVANT SUBSCRIPTION PLAN, YOUR USE OF THE SOFTWARE SHALL BE GOVERNED BY THESE TERMS OF SERVICE.
2.2 Eligibility
You recognize and acknowledge that the Indie Plan is available to Eligible Indie Users only. You represent and warrant that You satisfy the criteria set out for the Eligible Indie Users if you purchase access to Software under the Indie Plan. Zibra AI reserves the right to request from you reasonable evidence confirming that You meet the criteria established for Eligible Indie Users, and You agree to promptly provide such evidence upon our request.
If You do not meet the criteria for Eligible Indie Users or fail to provide reasonable evidence of Your eligibility, You shall not be entitled to use the Software under the Indie Plan and should contact Zibra AI to purchase access to the Software under the Studio Plan or Enterprise Plan. Zibra AI may, at its sole discretion, terminate your access to the Indie Plan if you do not meet the criteria of Eligible Indie Users or fail to provide sufficient evidence and require you to purchase access to the Software under the Studio Plan.
The Service is intended solely for persons 18 years of age or older. Any access to or use of the Service by anyone under 18 is prohibited.
If You accept these Terms of Service on behalf of the company or other legal entity, You warrant that You have the full legal capacity to accept these Terms of Service on behalf of such company or other legal entity.
We reserve the right to restrict the use of the Software for Users from certain countries, including from countries indicated in clause 15.10.
3. Service and Subscription Plans
3.1 General. The Service offers You a platform to purchase the License (as defined below) and other downloadable software along with all the necessary Updates and Support Services on the terms provided below.
3.2 Software. You may purchase the License by visiting the product page on our website and choosing the Subscription Plan (as defined below). After completing the payment information, You should pay for the Subscription Plan using the payment instructions. Upon successful payment, we will send You a license key to activate the Software along with the installment instructions.
3.3 Subscription Plans. Zibra AI offers various subscription plans (“Subscription Plan”), which may differ by the price, duration, the number of hardware devices on which You may have access to the Software, the functionality of the Software, eligible users, etc. Detailed information about Subscription Plans may be found here
These Terms of Service govern your use of the Software under the Indie Plan only. As of now, Zibra AI offers You a subscription to the Indie Plan (“Subscription”) on a monthly (“Monthly Subscription”) and annual basis (“Annual Subscription”).
By purchasing the Monthly Subscription, You obtain the License to use the Software or the Restricted Functionality Software on the terms provided below and clause 4. The Monthly Subscription is valid for 30 (thirty) calendar days starting from the date of purchasing the Monthly Subscription.
By purchasing the Annual Subscription, You obtain the License to use the Software or the Restricted Functionality Software on the terms provided below and clause 4. The Annual Subscription is valid for twelve (12) months starting from the date of purchasing the Annual Subscription.
4. License
4.1 Grant of License. Subject to Your compliance with the Terms of Service and payment of the applicable Subscription Fee, we grant You a non-exclusive, non-transferable, non-sublicensable, worldwide, revocable, perpetual, and limited license to install, access, and use the Software, or, as the case may be, the Restricted Functionality Software, (for the purposes of this clause the Software and the Restricted Functionality Software shall be collectively referred to as the “Licensed Software”) for the internal use and commercial purposes only as described below on two (2) hardware devices linked to one (1) User ID (“License”).
4.2 Permitted use. Under the License, the User shall have the right to use the Licensed Software to (a) incorporate the Licensed Software, together with substantial, original content not obtained through the use of the Licensed Software, into an electronic application or gaming product developed and/or owned by the User that has a purpose, features, and functions beyond the display, performance, distribution, or use of the Licensed Software as an embedded component of the product (the “Product”), such that the Licensed Software does not comprise a substantial portion of the Product; (b) to reproduce, publicly display, publicly perform, transmit, distribute, sell or otherwise use the Licensed Software as incorporated and embedded in that Product for commercial and non-commercial purposes.
4.3 Prohibited uses. Unless otherwise provided in these Terms of Service, the User shall not (i) modify, adapt, redistribute, decompile, reverse-engineer, disassemble, incorporate the Licensed Software into or with other products or software not contemplated by these Terms of Service or otherwise attempt to derive the source code of the Licensed Software; (ii) sell, allow access to, rent, encumber, give, or sublicense or otherwise transfer to anyone the Licensed Software, or any portions thereof, (iii) use the Licensed Software other than for the purposes indicated in clauses 4.1 and 4.2; (iv) copy or otherwise reproduce the Licensed Software; (v) violate in any way any applicable federal, state, local, or international law or regulation or these Terms of Service; (vi) enable a customer or user of a Product to sell, transfer, distribute, lease, or lend the Licensed Software for commercial gain; (vii) use the Licensed Software for the purposes of creation of content and/or products of any kind promoting violence, harassment and/or having pornography character or mention Zibra AI among persons related to the creation and/or promotion of creation of such content and/or products; (viii) without prior written express authorization, monetize the Licensed Software in the Product where the Product’s primary purpose is to create user-generated content; and (ix) without prior written express authorization of Zibra AI, use the Licensed Software in any digital representation of value, ownership, or contractual rights.
Zibra AI shall have the right to investigate and prosecute violations of any of the above to the fullest extent permitted by law. Zibra AI may involve and cooperate with law enforcement authorities in prosecuting Users who violate these Terms of Service. Zibra AI reserves the right, at any time and without prior notice, to remove or disable access to the Software, and/or Restricted Functionality Software, that Zibra AI, in its sole discretion, considers violating these Terms of Service or otherwise harmful to the Service or Users of the Service.
4.4 Further restrictions on use of Software. The User agrees that it will not, and will not permit any third party to, directly or indirectly: (i) use the Licensed Software to conduct any competitive analysis of or with the Licensed Software; (ii) access the Licensed Software in order to compete or build a competitive product or service, or impair the market for the Licensed Software or any part thereof; or (iii) copy any features, functions, graphics or other component of the Licensed Software.
4.5 Updates and Support Services. Zibra AI may, from time to time in its sole discretion and without prior notification to You, develop and release the Software updates, which may include upgrades, bug fixes, patches, and other error corrections and/or new features (collectively “Updates”). Updates may also modify or delete certain features and functionality of the Software. You agree to implement any Updates in a commercially reasonable time to the extent expressly requested by Zibra AI. We can also provide You with Support Services as described here. The Updates and Support Services are provided for the whole duration of Your Subscription. As soon as the Subscription expires or You fail to pay for the extension of the Subscription, the User will no longer receive any Updates and Support Services.
Zibra AI shall use its best endeavors but is not obliged to keep the Software up to date with updates on Unity or Unreal Engine platforms.
If You do not implement the Updates or avoid, suspend, or delay such implementation, Zibra AI will not guarantee the stable operation of the Software and, in such case, shall not be responsible for any bugs, errors, limitations, or restrictions of the Software functionality that caused or may be caused by such avoidance, suspension, delay or failure.
Any maintenance and support provided by Zibra AI, including the provision of Updates, will be provided reasonably on an “as is” basis without any warranty expressed or implied, as soon as reasonably practicable, and subject to the staff’s availability.
Unless otherwise specified in these Terms of Service, Zibra AI is not obliged to provide any maintenance, technical, or other support for the Licensed Software, including the Updates.
4.5 Ownership. Zibra AI retains all rights, title, and interest in and to all the intellectual property (including without limitation all patent, trademark, copyright, trade dress, trade secrets, database rights, and all other intellectual property rights) embodied in or associated with the Licensed Software and the accompanying Services, source and object code, technology and any content created or derived therefrom. The User acknowledges that the License granted under these Terms of Service does not provide the User with title or ownership to the Licensed Software, but only a right of limited use subject to the terms and conditions of these Terms of Service. This License does not create any implied licenses, and Zibra AI expressly reserves all rights not expressly granted to the User under these Terms of Service. User shall not use the Software in any way not explicitly permitted by these Terms of Service and incompliant with the ownership rights stated herein.
4.6 No Reverse Engineering. Users shall have no rights to any source code for the Licensed Software. Users may not reverse engineer, decompile, disassemble, or otherwise modify the Licensed Software.
4.7 Term. Unless terminated earlier under these Terms of Service, the License shall be perpetual. For the avoidance of doubt, nothing in the clause shall be interpreted as limiting our right to impose certain restrictions on the Software’s functionality as described in these Terms of Service and on the relevant page describing the Subscription Plan.
5. Trial period
We offer fully functional 3-day free trials for using the Software. After confirming Your agreement with these Terms of Service, You can trial the Software for a one-time, limited term of three (3) consecutive calendar days for the sole purpose of testing and evaluating the Software. You may activate Your free trial by following the instructions on our website. Your free trial will automatically terminate after three (3) consecutive calendar days following activation of the free trial.
After You activate the trial period, we grant You the License to use the Software for internal use and evaluation purposes only. You are not entitled to use the Software for information, advertising or commercial or non-commercial purposes or with regard to the release of any of Your products. You are not allowed to post or make available to the public any pieces of Your content which contain the Software or which is created through the Software. For the avoidance of doubts, all restrictions on the use of the Software described in clause 4.3 also apply during the trial period.
If You are charged for a Subscription during the trial period, please contact support@zibra.ai to have the charges reversed.
UNLESS YOU CANCEL BEFORE THE END OF THE FREE TRIAL, OR UNLESS OTHERWISE STATED, YOUR ACCESS TO THE SOFTWARE WILL AUTOMATICALLY CONTINUE, AND YOU WILL BE BILLED THE APPLICABLE FEES ESTABLISHED FOR THE MONTHLY PLAN. IT IS ULTIMATELY YOUR RESPONSIBILITY TO KNOW WHEN THE FREE TRIAL WILL END. WE RESERVE THE RIGHT, IN OUR ABSOLUTE DISCRETION, TO MODIFY OR TERMINATE ANY FREE TRIAL OFFER, YOUR ACCESS TO THE SERVICE DURING THE FREE TRIAL, OR ANY OF THESE TERMS WITHOUT NOTICE AND WITH NO LIABILITY.
Each User shall be entitled to use the free trial only once. We reserve the right to restrict the use of the Software for the Users who abuse their right to a free trial period and use it more than once.
6. Fees, payment terms, refunds
6.1 Payment. You agree to pay all fees or charges for the Services in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. As a condition to subscribing to the Service, You must provide Zibra AI’s Third-Party Payment Processor (as defined in clause 13.1) with a valid credit or debit card number (Visa, MasterCard, or any other issuer accepted by us) (“Payment Method”).
6.2 Subscription Fees. You will be responsible for paying the applicable fee for the Subscription (“Subscription Fee”) when You select Your Subscription Plan and receive payment details. Zibra AI may suspend Your use of the Software, without liability to Zibra AI, in the event that any amounts payable by You are past due or You are otherwise in breach of these Terms of Services.
6.3 Automatic renewal. Billing cycle. Unless You cancel Your Subscription before the end of Your current Subscription period, Your Subscription will automatically renew for another period of the same duration, and Your payment method will be charged the applicable Subscription fee.
We will send You an email and in-plugin popup notification on the upcoming end of Your Monthly Subscription no later than seven (7) calendar days and one (1) calendar day before the end of Your Monthly Subscription reminding You of the end of Your Subscription and the upcoming automatic renewal.
We will send You an email and in-plugin popup notification on the upcoming end of Your Annual Subscription no later than thirty (30) calendar days and one (1) calendar day before the end of Your Annual Subscription period, reminding You of the end of Your Subscription and the upcoming automatic renewal.
BY PURCHASING THE SUBSCRIPTION PLAN, YOU AGREE THAT ZIBRA AI WILL BE ABLE TO CHARGE YOUR PAYMENT METHOD EACH 30 (THIRTY) CALENDAR DAYS OR TWELVE (12) MONTHS (DEPENDING ON THE PURCHASED SUBSCRIPTION PLAN) ON THE DAY CORRESPONDING TO THE DATE YOU PURCHASED THE SUBSCRIPTION PLAN UNLESS YOU CANCEL YOUR SUBSCRIPTION PLAN OR PUT IT ON HOLD, AS FURTHER DESCRIBED BELOW.
IN SOME CASES, YOUR PAYMENT DATE OR BILLING CYCLE MAY CHANGE, FOR EXAMPLE, IF YOUR PAYMENT METHOD HAS NOT SUCCESSFULLY SETTLED, WHEN YOU CHANGE YOUR SUBSCRIPTION PLAN, OR IF YOUR SUBSCRIPTION BEGAN ON A DAY NOT CONTAINED IN A GIVEN MONTH.
6.4 Cancellation. You can cancel Your Subscription at any time, and You will continue to have access to the Service until the end of Your Subscription Plan period. To cancel the Subscription, please contact us at: support@zibra.ai. You may also cancel Your Subscription at any time before the end of Your current Subscription period by following the cancellation instructions in Your Stripe account.
If Your Subscription has expired or been canceled by You, the Software will be modified to the Restricted Functionality Software. It means that you will not be entitled to (1) receive any Updates and Support Services and (2) generate new Zibra neural colliders via the Software. There might be other restrictions on the functionality of the Restricted Functionality Software, which can be described on our website.
No refund will be made if You forget to cancel Your subscription.
6.5 Changes to the price of Subscription Plan. We may, at our reasonable discretion, change the price of our Subscription Plan from time to time to reflect the effect of changes in the total costs associated with our Service.
6.6 Special offers. Zibra AI may introduce special offers (e.g., “hot” prices for Subscriptions, discounts, sales, etc.), information about which will be provided on our website. Special offers and promotions are no longer valid once they are changed or removed or after any end date or time specified in the offer.
6.7 Taxes. The payments required under clause 6.2 do not include any Sales Tax (as defined below) that may be due in connection with the Services provided under these Terms of Service. If Zibra AI determines it has a legal obligation to collect a Sales Tax from You in connection with these Terms of Services, Zibra AI shall collect such Sales Tax in addition to the payments required under clause 6.2. If any services, or payments for any services under these Terms of Service are subject to any Sales Tax in any jurisdiction and You have not remitted the applicable Sales Tax to Zibra AI, You will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and You will indemnify Zibra AI for any liability or expense Zibra AI may incur in connection with such Sales Taxes. Upon Zibra AI’s request, You will provide it with official receipts issued by the appropriate taxing authority or other such evidence that You have paid all applicable taxes. For purposes of this clause, “Sales Tax” shall mean any sales or use tax, value-added tax, and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
6.8 Withholding Taxes. You agree to make all payments of fees to Zibra AI free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to Zibra AI will be Your sole responsibility, and You will provide Zibra AI with official receipts issued by the appropriate taxing authority or such other evidence as we may reasonably request to establish that such taxes have been paid.
6.9 Refunds. All fees paid by the User for the relevant Subscription Plans are non-refundable. ZIbra AI does not generally provide any refunds or credits for any cancelation of the Subscription.
The Software is a try-before-buy product. You are responsible for verifying the compatibility, functionality, and suitability of the Software for Your tasks by installing and testing the Software on Your device before purchasing the Subscription during the trial period. You agree to report any encountered technical problem to Zibra AI before You purchase a Subscription.
If you are an EU resident, You hereby expressly consent to the immediate performance of the contract and acknowledge that You will lose Your right of withdrawal from the contract once the download of the Software has begun.
7. Zibra AI marks
Zibra AI, the Zibra AI logo, and other Zibra AI logos and product and service names are registered or unregistered trademarks of Zibra AI (“Zibra Marks”). Without our prior written permission, You may not display or use Zibra Marks, domain names, and other distinctive features in any manner.
8. User Content
8.1 Definition and ownership rights. Anything (other than Feedback) that the User makes available through the Services, including, without limitation, data, texts, files, software codes, images, graphics, software, and videos referred to as “User Content”. Zibra AI does not claim ownership rights in any User Content, and nothing in these Terms of Service will be deemed to restrict any rights that User may have in relation to the User Content. However, we highly encourage Users to mention Zibra AI and/or the Licensed Software in the credits of the Product.
8.2 User Content License. By making any User Content available through the Services, You grant Zibra AI a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable, and transferable license to use the User Content for demonstration and marketing of the Software operation by way of posting the User Content on the official website of Zibra AI, social networks of Zibra AI, media and any other channels which may be used for the promotion of the Software.
8.3 Trademark. Without Your prior approval, Zibra AI is entitled to include Your name and logo or distinctive signs on its web page, on the client list, and may include a quote drafted by You relating to the Service hereunder to be published in press releases.
8.4 User’s Representations and Warranties. User represents and warrants that they have (and will have) all rights necessary to grant Zibra AI the license rights in relation to User Content under these Terms of Service. User represents and warrants that neither the User Content, nor User’s use and provision of the User Content to be made available through the Services, nor any use of the User Content by Zibra AI on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
8.5 Warranty. The User warrants that they have (and will continue to have during the use of the Software) all necessary licenses, rights, consents, and permissions that are required to enable Zibra AI to use the User Content for the provision of the Software, and otherwise to use the User Content in the manner contemplated by the Software or these Terms of Service.
9. Feedback
If You provide input and suggestions about the Software or regarding problems with or proposed modifications or improvements to the Service, including the Software (“Feedback”), such Feedback is given voluntarily. Even if You designate such Feedback as confidential, the Feedback will not be confidential unless expressly otherwise agreed in writing by Zibra AI. You grant Zibra AI a permission and an unrestricted, perpetual, irrevocable, non-exclusive, worldwide, royalty-free, fully transferable, and 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 the Feedback together with Your full name and publicly available photo at its sole discretion in any manner and for any purpose, including to improve the Service and create other products and services. You acknowledge that Your submission of Feedback is at Your own risk and that Zibra AI has no obligations or restrictions of any kind (including, without limitation, obligations of confidentiality, credit, or payment) concerning such Feedback. You also understand that Your photo and Feedback may be cropped or edited to fit the format of the campaign, and You waive Your right to inspect or approve Your photo and release Zibra AI from any liability arising from its use.
10. Disclaimer of Warranties
10.1 TO THE FULLEST EXTENT PERMITTED BY LAW, (A) THE SERVICE, THE SOFTWARE, AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, AND (B) ZIBRA AI DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING: (I) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (II) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. ZIBRA AI DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, THAT ANY OF THOSE ISSUES WILL BE CORRECTED, OR THAT THE RESULTS OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE.
ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICE 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 THE SERVICE OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM ZIBRA AI OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
FROM TIME TO TIME, ZIBRA AI MAY OFFER NEW “BETA” FEATURES, PRODUCTS, OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES, PRODUCTS, OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND AND MAY BE MODIFIED OR DISCONTINUED AT ZIBRA AI’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES, PRODUCTS, OR TOOLS.
10.2 No Liability for conduct of third parties. YOU ACKNOWLEDGE AND AGREE THAT ZIBRA AI ENTITIES (AS DEFINED BELOW) ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD ZIBRA AI ENTITIES LIABLE FOR THE CONDUCT OF THIRD PARTIES, INCLUDING THIRD-PARTY SERVICE PROVIDERS, AND OPERATORS OF THIRD-PARTY WEBSITES, THIRD-PARTY APPLICATIONS, OR THIRD-PARTY ADS (AS DEFINED BELOW), AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
10.3 No Liability for conduct of other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICE. YOU UNDERSTAND THAT ZIBRA AI DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF THE SERVICE USERS. ZIBRA AI MAKES NO WARRANTY THAT THE GOODS OR SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. ZIBRA AI MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SUCH GOODS OR SERVICES OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR RELIABILITY OF ANY USER CONTENT OBTAINED THROUGH THE SERVICE.
10.4 Third-party materials. As a part of the Service, You may have access to materials that another party hosts. You agree that Zibra AI can’t monitor such materials and that You access these materials at Your own risk.
11. Limitation of liability and indemnification
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL ZIBRA AI, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, PARTNERS, AND LICENSORS (COLLECTIVELY, “ZIBRA AI 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 ZIBRA AI ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF ZIBRA AI 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 OF SERVICE, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF USD15.00 AND THE AMOUNTS YOU HAVE PAID TO ZIBRA AI, IF ANY, DURING THE SIX MONTHS PRIOR TO THE DATE OF YOUR CLAIM AGAINST US.
EACH PROVISION OF THESE TERMS OF SERVICE 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 OF SERVICE. 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 OF SERVICE. THE LIMITATIONS IN THIS CLAUSE 11 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
FOR UK USERS, ZIBRA AI DOES NOT IN ANY WAY SEEK TO EXCLUDE OR LIMIT LIABILITY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY ZIBRA AI’S NEGLIGENCE; (B) FRAUD OR FRAUDULENT MISREPRESENTATION; OR (C) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY ENGLISH OR EU LAW.
You hereby release Zibra AI Entities 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 the Service, including but not limited to, any interactions with or conduct of other Users or Third-Party Services of any kind arising in connection with or as a result of these Terms of Service Your use of the Service. 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.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights, and actions of any kind, including personal injuries, death, or property damage for any unconscionable commercial practice by a Zibra AI Entity or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression, or omission of any material fact in connection with the Service provided hereunder.
To the fullest extent permitted by law, You are responsible for Your use of the Service. You will indemnify and hold harmless Zibra AI 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 of Service, or any applicable law or regulation; (d) Your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (e) 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 will cooperate with our defense of those claims.
12. Term and Termination
12.1 Termination by User. Any User may stop using the Services at any time by way of contacting support@zibra.ai asking to terminate the Subscription. Termination of the User’s Subscription does not relieve the User of any obligation to pay any outstanding fees (if any).
12.2 Termination by Zibra AI. If Zibra AI terminates these Terms of Service for reasons other than for cause, Zibra AI will make a reasonable effort to notify the User at least thirty (30) days prior to termination via the email address User has provided to Zibra AI. Zibra AI may, at any time, terminate User’s right to use and access the Software and accompanying Services if: (a) User breaches any provision of these Terms of Service (or act in a manner that clearly shows that the User does not intend to, or is unable to, comply with these Terms of Service); (b) User fails to make the timely payment of fees for Subscription; (c) Zibra AI is required to do so by law (for example, where the provision of the Services to User is, or becomes, unlawful); (d) Zibra AI elects to discontinue the Services, in whole or in part, (such as if it becomes impractical for Zibra AI to continue offering Services in User’s region, including, due to legal requirements).
12.3 Consequences of termination. Upon termination of the Services, Your access to the functionality of the Services will be limited as described in these Terms of Service.
12.4 Survival. Upon termination of these Terms of Service, clauses 6 to 15 inclusively will survive any termination or expiration of these Terms of Service.
13. Third-Party Services
13.1 Third-Party Payment Processor. Zibra AI currently uses Stripe, Inc. and its affiliates (for processing Stripe transactions) and may in the future use Pay Pal, Inc. as the third-party payment processor for payment services (e.g., card acceptance, merchant settlement, and related services) (“Third-Party Payment Processor(s)”). By purchasing the Service, You agree to be bound by the Third-Party Payment Processors’ privacy policy and its terms of service and hereby consent and authorize Zibra AI and the Third-Party Payment Processor(s) to share any information and payment instructions You provide with each other to the maximum extent required to complete Your transactions.
13.2 Third-Party Websites, Applications, and Ads. The Service may contain links to third-party websites (“Third-Party Websites”), applications (“Third-Party Applications”), and advertisements for third parties (“Third-Party Ads”). When You click on a link to a Third-Party Website, Third-Party Application, or Third-Party Ad, we will not warn You that You have left the Service and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites, Third-Party Applications, and Third-Party Ads are not under the control of Zibra AI. Zibra AI is not responsible for any Third-Party Websites, Third-Party Applications, or Third-Party Ads. Zibra AI provides these Third-Party Websites, Third-Party Applications, and Third-Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, Third-Party Applications or Third-Party Ads, or any product or service provided in connection therewith. Your use of all Third-Party Websites, Third-Party Applications, and Third-Party Ads shall be at Your own risk. When You leave the Service, these Terms of Service and our policies shall no longer govern. It shall be Your responsibility to review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, Third-Party Applications, or Third-Party Ads and to make whatever investigation You feel necessary or appropriate before proceeding with any transaction with any third party.
14. Dispute Resolution and Arbitration Agreement
Please read the following arbitration agreement in this clause 14 (“Arbitration Agreement”) carefully. It requires Users to arbitrate disputes with Zibra AI and sets the limits and the manner in which You can seek relief from us.
14.1 Applicability of Arbitration Agreement. User and Zibra AI agree that any dispute, claim, or request for relief by or against Zibra AI relating in any way to Your access to or use of the Service or the Agreement will be resolved by binding arbitration rather than in court, except that (a) You and we may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (b) You or Zibra AI may seek equitable relief in court for infringement or other misuses of intellectual property rights (such as trademarks, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement and the avoidance of any doubt, the terms “we”, “us” or “Zibra AI” mean Zibra AI Inc. and any of its predecessors, successors, assigns, corporate parents, subsidiaries, and affiliates, and each of their respective officers, directors, employees, agents, and representatives.
14.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, You must send a letter requesting arbitration and describing Your dispute or claim, or request for relief to Zibra AI at the contact address found at the end of these Terms of Service. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or requests for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’ most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’ most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. Any arbitration of a dispute relating to Your use of the Service primarily for personal, family, or household purposes shall also be subject to the allocation of arbitration costs and other requirements of the JAMS’ policy regarding Consumer Arbitrations Pursuant to Pre-Dispute Clauses Minimum Standards of Procedural Fairness available at https://www.jamsadr.com/consumer-minimum-standards/. JAMS’ rules are also available at www.jamsadr.com. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where You live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
14.3 Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement, including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities of You and Zibra AI, if any. The arbitration proceeding will not be consolidated with other matters or joined with other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). 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 arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon You and us.
14.4 Waiver of Jury Trial. YOU AND ZIBRA AI 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 Zibra AI are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
14.5 Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a particular claim for relief, then that claim for relief and only that claim for relief shall be severed from the arbitration and brought into the State or Federal Courts located in the State of Delaware. All other disputes, claims, or requests for relief shall be arbitrated.
14.6 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 support@zibra.ai within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include Your name and address, Your 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 this Agreement will continue to apply to You. Opting out of this Arbitration Agreement does not affect any other arbitration agreements that You may currently have or may enter in the future with us.
14.7 Severability. Except as provided in clause 14.5 (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.
14.8 Survival of Agreement. This Arbitration Agreement will survive the termination of Your relationship with Zibra AI.
14.9 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Zibra AI makes any future material change to this Arbitration Agreement, You may reject that change within thirty (30) days of such change becoming effective by following the procedure set forth in clause 14.6 (30-Day Right to Opt-Out) of this Arbitration Agreement.
15. General provisions
15.1 Electronic Communications. The communications between You and Zibra AI may take place via electronic means, whether You visit the Service or send Zibra AI e-mails, or whether Zibra AI posts notices on the Service or communicates with You via e-mail. For contractual purposes, You (a) consent to receive communications from Zibra AI in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Zibra AI provides to You electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing.
15.2 Assignment. These Terms of Service, and Your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by You without the prior written consent of Zibra AI, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
15.3 Force Majeure. Zibra AI shall not be liable for any delay or failure to perform resulting from any event or circumstance, regardless of whether it was foreseeable that was not caused by Zibra AI and that prevents Zibra AI from complying with any of its obligations under these Terms of Service. For UK Users, if a force majeure event occurs that affects Zibra AI’s performance of its obligations under these Terms of Service: (a) Zibra AI will contact You as soon as reasonably possible to notify You; and (b) Zibra AI’s obligations under these Terms of Service will be suspended and the time for Zibra AI’s performance of its obligations will be extended for the duration of the force majeure event. You may cancel the Services affected by a force majeure event that has continued for more than 120 days. To cancel, please contact support@zibra.ai.
15.4 Questions, complaints, claims. If You have any questions, complaints, or claims with respect to the Service, please contact us at the mailing or email address found at the end of these Terms of Service. We will do our best to address Your concerns.
15.5 Exclusive Venue. To the extent the Parties are permitted under these Terms of Service to initiate litigation in a court, both You and Zibra AI agree that all claims and disputes arising out of or relating to the Terms of Service will be litigated exclusively in the state or federal courts located in the State of Delaware.
15.6 Governing Law. THESE TERMS OF SERVICE AND ANY ACTION RELATED TO THEM WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF DELAWARE, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THESE TERMS OF SERVICE.
15.7 Notice. Where Zibra AI requires that You provide an e-mail address, You are responsible for providing Zibra AI with Your current e-mail address. If the last e-mail address You provided to Zibra AI is not valid or for any reason is not capable of delivering to You any notices required/ permitted by these Terms of Service, Zibra AI’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Zibra AI at the address below. Such notice shall be deemed given when received by Zibra AI by letter delivered by a nationally recognized overnight delivery service or first-class postage prepaid mail at the above address.
15.8 Waiver. Any waiver or failure to enforce any provision of the Terms of Service on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
15.9 Severability. If any portion of the Terms of Service is held invalid, unlawful, 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 to the full extent permitted by law.
15.10 Export Control. You may not use, export, import, or transfer the Service or any part thereof except as authorized by U.S. law, the laws of the jurisdiction in which You obtained the Service, and any other applicable laws, including the U.S. Export Administration Regulations and the U.S. sanctions laws administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”). In particular, but without limitation, the Service or any part thereof may not be exported, re-exported, or otherwise transferred or provided to any person or entity (a) located, organized, or resident in any jurisdiction subject to comprehensive U.S. and European Union trade sanctions, including, among others, Belarus, Cuba, Iran, North Korea, Syria, Russia, and the Crimea and Donetsk People’s Republic or Luhansk People’s Republic regions of Ukraine (the “Sanctioned Countries”), or (b) on any export- or sanctioned-related U.S. restricted party list, including OFAC’s Specially Designated Nationals and Blocked Persons List, Foreign Sanctions Evaders List, and Sectoral Sanctions Identifications List, or the U.S. Department of Commerce’s Denied Person’s List, Unverified List, or Entity List (the “Restricted Party Lists”). By using the Service, You represent and warrant that You are not, and are not owned, controlled, or acting on behalf of any other person or entity that is (i) located, organized, or resident in a Sanctioned Country or (ii) listed on any Restricted Party List. You also will not use the Service for any military end-use or any other purpose prohibited by U.S. law, including the development, design, manufacture, or production of missiles, nuclear, chemical, or biological weapons.
15.11 California Consumer Complaints. In accordance with California Civil Code §1789.3, if You are a California consumer, You may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
15.12 Entire Agreement. Unless otherwise is indicated herein, these Terms of Service and the Privacy Policy are the final, complete, and exclusive agreement of the parties with respect to its subject matter and supersede and merge all prior discussions between the parties with respect to such subject matter.
15.13 Contact Information
Zibra AI Inc.
16192 Coastal Highway
Lewes, Delaware 19958,
support@zibra.ai
