LAST UPDATED JANUARY 24, 2023
ZIBRA AI INC (“Zibra AI” or “we”) provides its website service that allows you as an end user (“you” or “User”) to purchase the license, which will enable you to use the Software or the Restricted Functionality Software (all as defined below) and other downloadable software and content along 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”) carefully.
All terms with regards to the use of the Software under the Studio Plan (as defined below) are not covered by these Terms of Services and shall be agreed upon by you and Zibra AI in a separate agreement.
All terms with regards to the use of “Zibra Liquids” (https://www.unrealengine.com/marketplace/en-US/product/zibra-liquids and https://assetstore.unity.com/packages/tools/physics/zibra-liquids-200718) are governed by the terms of Unreal Marketplace and Unity Asset Store respectively.
BY ACCESSING OR USING THE SERVICE, OR BY DOWNLOADING, PURCHASING THE INDIE PLAN, 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. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, YOU HAVE NO RIGHT TO ACCESS OR USE THE SERVICE.
By checking the acceptance box or by starting the use of the Software, you enter into an agreement with Zibra AI on the use of the Software or the Restricted Functionality Software as of that date (“Effective Date”).
In these Terms of Service, the following definitions shall have the meaning assigned to them in this clause unless the context requires otherwise:
“Big Studio” has the meaning assigned to this term in clause 2.2;
“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://zibra.ai/packages/indie/;
“License” has the meaning assigned to this term in clause 4.1;
“Licensed Product” has the meaning assigned to this term in clause 4.2;
“Licensed Software” has the meaning assigned to this term in clause 4.1;
“Product” means a video game or VR project that is developed by You;
“Restricted Functionality Software” means Software with limited functionality, which is not supported, updated, or modified by Zibra AI as described in clause 3.3. The Software becomes the Restricted Functionality in cases and according to the terms provided by clause 3.3;
“Software” means “Zibra Liquids Pro”, a cross-platform GPU-based plugin for real-time fluid physics simulation and rendering, which can be used on Unity or Unreal Engine platforms only;
“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://zibra.ai/packages/studio/;
“Subscription Plan” has the meaning assigned to this term in clause 3.3;
“Support Services” means priority support services 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
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 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 for new users of the Service and on the stated Effective Date for existing Users. Such change(s) or modifications will be effective upon posting on https://zibra.ai/terms-of-service/ or otherwise notifying you, e.g., by using the email address used for your registration or purchase. Zibra AI may require you to consent to the updated Terms of Service in a specified manner before further use of the Service is permitted. If you do not agree to any change(s) or modifications after receiving such notice, you must stop using the Service. Otherwise, your continued use of the Service constitutes your acceptance of such change(s) or modifications.
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 your age is under 18, you may use the Service only under the supervision of a parent or legal guardian who agrees to be bound by these Terms of Service.
The subscription to Indie Plan is recommended for usage by individuals or companies with annual revenue or Product development budget under $200,000.
The Studio Plan shall be used by (1) companies with revenue for the preceding year or a Product development budget over $200,000, or (2) companies that raised over $200,000 in their latest funding round (“Big Studios”).
By accessing or using the Service or otherwise agreeing to these Terms of Service, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Service; and (c) your use of the Service follows any applicable laws and regulations. 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 Plan
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, filing the application, and choosing the Indie Plan (as defined below). After completing the application form, you should pay for the Indie Plan using the payment instructions. Upon successful payment, we will send you an authentication key to activate the Software along with the installment instructions.
3.3 Subscription Plans. Zibra AI offers various subscription plans, 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, etc (“Subscription Plan”). Detailed information about Subscription Plans may be found on the relevant page https://zibra.ai/pricing/
By purchasing a subscription to the Indie Plan, you obtain the License to use the Software or the Restricted Functionality Software on the terms provided below and clause 4. The subscription to the Indie Plan is valid for twelve (12) months starting from the date of its purchase.
We will send you an email notification on the upcoming end of your subscription no later than seven (7) calendar days before its expiration. Such notification will contain instructions on the prolongation of your Indie Plan, payment, and other necessary details for the prolongation or cancellation of your Indie Plan. If you do not pay for the prolongation of your Indie Plan within five (5) calendar days following the termination of the Indie Plan validity period, it will be deemed expired.
The Indie Plan is not available for the Big Studios. If you are a Big Studio, you are eligible for Studio Plan only.
If the Indie Plan expires, 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.
4.1 Grant of License. Subject to your compliance with the Terms of Services, eligibility to use the Indie Plan, and payment of the applicable fees for the Indie Plan, 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 business 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 that has a purpose, features, and functions beyond the display, performance, distribution, or use of the Licensed Software (“Licensed Product”) as an embedded component of that Licensed Product, such that the Licensed Software does not comprise a substantial portion of the Licensed Product; (b) to reproduce, publicly display, publicly perform, transmit, and distribute the Licensed Software as incorporated and embedded in that Licensed Product.
4.3 Prohibited uses. 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, unless otherwise provided for in these Terms of Service, (iii) use the Licensed Software other than for the purposes indicated in these Terms of Service; (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 Licensed Product to sell, transfer, distribute, lease, or lend the Licensed Software for commercial gain or commercialize Licensed Software within a Licensed Product; (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 is strictly prohibited; (viii) without express authorization, monetize the Licensed Software in a Licensed Product where the Licensed Product’s primary purpose is to create user-generated content; and (ix) without an 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 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 https://zibra.ai/pricing/. Updates and Support Services are provided for the whole duration of your Indie Plan. As soon as your Indie Plan expires or you fail to pay for the extension of the Indie Plan, you 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 in 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 Services, 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. User acknowledges that the License granted under these Terms of Services does not provide 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 14-day free trials for using the Software. After confirming your agreement with these Terms of Services, you can trial the Software for a one-time, limited term of fourteen (14) 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 fourteen (14) consecutive calendar days following activation of the free trial. At the end of the trial period, your use of the Software will expire, and any further use of the Software is prohibited unless you pay the applicable Subscription Fee (as defined below).
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 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 the Indie Plan during the trial period, please contact email@example.com to have the charges reversed. 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) or allow for payment through your PayPal account (“Payment Method”).
6.2 Subscription Fees. You will be responsible for paying the applicable fee for the Indie Plan (“Subscription Fee”) when you select the Indie Plan and receive payment details and Software installment instructions via your email. Except as set forth in clause 6.9, all fees for the Services are non-refundable.
6.3 Billing cycle. BY PURCHASING THE INDIE PLAN, YOU AGREE THAT ZIBRA AI WILL BE ABLE TO CHARGE YOUR PAYMENT METHOD EACH YEAR ON THE DAY CORRESPONDING TO THE DATE YOU PURCHASED THE INDIE PLAN UNLESS YOU CANCEL IT 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 OR IF YOUR INDIE PLAN BEGAN ON A DAY NOT CONTAINED IN A GIVEN MONTH.
6.4 Cancellation. You can cancel your Indie Plan anytime, and you will continue to have access to the Software until the end of your Indie Plan period. To cancel the Indie Plan, please contact us at firstname.lastname@example.org. If you cancel your Indie Plan, the Software’s functionality will be limited, and the Software will be modified to the Restricted Functionality Software as described in clause 3.3. Zibra AI reserves the right to cancel the Indie Plan and revoke the License if the User breaches these Terms of Service.
We shall send you an email notification on the upcoming end of your Indie Plan no later than seven (7) calendar days before the end of your Indie Plan so that you can cancel your Indie Plan.
6.5 Changes to the price of Indie Plan. We may, at our reasonable discretion, change the price of the Indie 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 Subscription Plans, discounts, sales, etc.), information about which will be provided on Zibra’s 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 this Agreement, 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 Cooling-off rights. You may cancel your Indie Plan within fourteen (14) calendar days after its purchase (“Cooling Off Period”). If you cancel your Indie Plan, upgrade, or make any purchase during the above period, we will reimburse in full the applicable payment you have made.
If you are an EU resident, you hereby expressly consent to the immediate performance of our agreement with Zibra AI and acknowledge that you will lose your cooling-off right once our servers validate your purchase, and the applicable purchase is successfully delivered to you.
If you take advantage of the trial period, the Cooling-Off Period will commence on the day we accept your order for the free trial, and the duration of the free trial will be included in the Cooling-Off Period.
If we reimburse you the applicable payment, you shall not have any rights to use the Software in any way. Please contact us at email@example.com for reimbursement referred to in this clause 6.9.
If the User is abusing the refund policy (e.g., repeatedly claiming a refund being previously refunded during the Cooling Off Period), Zibra AI, at its discretion, reserves the right to (i) deny the User’s refund, (ii) restrict User from access to the Services, (iii) cancel Indie Plan, and/or (iv) ban any future access to the Services. If Zibra AI disables your access to the Services because of a violation of these Terms of Services, the User will not be eligible to receive a refund.
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 User Content. However, we highly encourage Users to mention Zibra AI and/or the Licensed Software in the credits of the Licensed Product.
8.2 User Content License. By making any User Content available through the Services, you grant Zibra AI a non-exclusive, worldwide, perpetual, 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, social networks, media and any other channels of Zibra AI which may be used for the promotion of the Software.
8.3 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 User Content to be made available through the Services, nor any use of 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.
8.4 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 provision of the Software, and otherwise to use the User Content in the manner contemplated by the Software or these Terms of Service.
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 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 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.
10. Disclaimer of Warranties
10.1 TO THE FULLEST EXTENT PERMITTED BY LAW, (A) THE SERVICE, ZIBRA AI PROPERTY, 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 THE ZIBRA AI ENTITIES (AS DEFINED BELOW) ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE ZIBRA 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 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 ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE 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, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF USD200 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 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. 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 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 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 firstname.lastname@example.org asking to terminate the Services provision. Termination of the Services provision 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; (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) User does not meet the requirements set up for users of the Subscription Plan chosen by such User; (e) 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. At the same time, in case of termination of the Indie Plan, you shall still have the right to use the Restricted Functionality Software in that version available for the User on the terms of the Indie Plan as of the termination date.
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
13.2 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, the Agreement 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. 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 email@example.com 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 the Agreement: (a) Zibra AI will contact you as soon as reasonably possible to notify you; and (b) Zibra AI’s obligations under the Agreement 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 firstname.lastname@example.org.
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 the Agreement 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 Services will be litigated exclusively in the state or federal courts located in the State of Delaware.
15.6 Governing Law. THE AGREEMENT AND ANY ACTION RELATED TO IT 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 THE AGREEMENT.
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 the Agreement, 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. These Terms of Service is 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,