Z PLM Free Edition Terms of Service
This Z PLM Free Edition Agreement (the “Agreement“) is entered into by and between Cambrian Lab, Inc., a California corporation, with offices at 7045 Corte Del Oro, Pleasanton, California 94566 (“Cambrian Lab“) and the person or an entity agreeing to the terms herein (“Customer“). This Agreement governs Customer’s access to and use of the Services and will be effective as of the date Customer signs up for a Free Edition of Z PLM.
If you are accepting on behalf of your employer, you represent and warrant that: (i) you have full legal authority to bind your employer, or the applicable entity, to these terms and conditions; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of the party that you represent, to this Agreement. If you do not have the legal authority to bind Customer, please do not use or subscribe to the use of Z PLM in any form. This Agreement governs Customer’s access to and use of the Services.
Software and Services.
- Facilities and Data Transfer. Cambrian Lab primarily uses Public Cloud services and infrastructure provided by Amazon Web Services, Google Cloud Platform and Microsoft Azure for storing and processing Customer Data. All facilities and procedures used by Cambrian Lab to store and process Customer Data will adhere to reasonable security standards. Cambrian Lab has implemented industry standard systems and procedures to ensure the security and confidentiality of Customer Data, protect against anticipated threats or hazards to the security or integrity of Customer Data, and protect against unauthorized access to or use of Customer Data. As part of providing the Services, Cambrian Lab may transfer, store and process Customer Data in the United States or any other country in which Cambrian Lab’s Public Cloud service partners maintain facilities. By using the Services, Customer consents to this transfer, processing and storage of Customer Data.
- To the Services. Cambrian Lab shall have the right to change, suspend or discontinue any aspect of the Service at any time, without notice. If Cambrian Lab makes a material change to the Services, Cambrian Lab will inform Customer, provided that Customer has subscribed with Cambrian Lab to be informed about such change.
- To this Agreement. Cambrian Lab reserves the right to change or modify any of the terms and conditions contained in this Agreement or any policy governing the Service, at any time, by posting the new agreement at http://www.zplm.io/terms or such URL as Cambrian may provide. Customer is responsible for regularly reviewing any updates to this Agreement. Any changes or modifications to this Agreement will become binding (i) by Customer’s online acceptance of updated terms, or (ii) after Customer’s continued use of the Service after such terms have been updated by Cambrian Lab.
- Compliance. Customer will use the Services in accordance with the Acceptable Use Policy. Cambrian Lab may make new applications, features or functionality for the Services available from time to time, the use of which may be contingent upon Customer’s agreement to additional terms.
- Customer Administration of the Services. Customer may specify one or more Administrators who will have the rights to access Admin Account(s) and to administer the End User Accounts. Customer is responsible for: (a) maintaining the confidentiality of the password and Admin Account(s); (b) designating those individuals who are authorized to access the Admin Account(s); and (c) ensuring that all activities that occur in connection with the Admin Account(s) comply with the Agreement. Customer agrees that Cambrian Lab’s responsibilities do not extend to the internal management or administration of the Services for Customer and that Cambrian Lab is merely a data-processor.
- End User Consent. Customer’s Administrators may have the ability to access, monitor, use, or disclose data available to End Users within the End User Accounts. Customer will obtain and maintain all required consents from End Users to allow: (i) Customer’s access, monitoring, use and disclosure of this data and Cambrian Lab providing Customer with the ability to do so and (ii) Cambrian Lab to provide the Services.
- Unauthorized Use. Customer will use commercially reasonable efforts to prevent unauthorized use of the Services and to terminate any unauthorized use. Customer will promptly notify Cambrian Lab of any unauthorized use of, or access to, the Services of which it becomes aware.
- Restrictions on Use. Unless Cambrian Lab specifically agrees in writing, Customer will not, and will use commercially reasonable efforts to make sure a third party does not: (a) sell, resell, lease, or the functional equivalent, the Services to a third party (unless expressly authorized in this Agreement); (b) attempt to reverse engineer the Services or any component; (c) attempt to create a substitute or similar service through use of, or access to, the Services; (d) use the Services for High Risk Activities; or (e) use the Services to store or transfer any Customer Data that is controlled for export under Export Control Laws. Customer is solely responsible for any applicable compliance with HIPAA.
- Third Party Requests. Customer is responsible for responding to Third Party Requests. Cambrian Lab will, to the extent allowed by law and by the terms of the Third Party Request: (a) promptly notify Customer of its receipt of a Third Party Request; (b) comply with Customer’s reasonable requests regarding its efforts to oppose a Third Party Request; and (c) provide Customer with the information or tools required for Customer to respond to the Third Party Request. Customer will first seek to obtain the information required to respond to the Third Party Request on its own, and will contact Cambrian Lab only if it cannot reasonably obtain such information.
- Usage Policies and Limits. Customer is permitted 10 End User Accounts. In addition, Customer is permitted a total of 5 GB of file storage and a maximum of 1,000 objects per class. Customer shall comply with any additional usage policies and limits concerning use of the Service as requested by Cambrian Lab from time to time.
- End Users. Customer agrees that End Users will comply with the Acceptable Use Policy and the End User Terms.
- The Service is provided at no charge to Customer provided that Customer agrees that Cambrian Lab may (a) add optional services to Customer or its End Users for a fee or (b) offer a premium version of the Service for a fee.
Technical Support Services.
- Customer is responsible for responding to any questions and complaints by End Users or other third parties relating to Customer or its End Users’ use of the Services. Cambrian Lab will make available the Help Center to Customer and its End Users.
- Of End User Accounts by Cambrian Lab. If Cambrian Lab becomes aware of an End User’s violation of the Agreement, then Cambrian Lab may specifically request that Customer Deactivate the applicable End User Account. If Customer fails to comply with Cambrian Lab’s request to Deactivate an End User Account, then Cambrian Lab may do so.
- Emergency Security Issues. Notwithstanding the foregoing, if there is an Emergency Security Issue, then Cambrian Lab may automatically Suspend the offending use. Suspension will be to the minimum extent and of the minimum duration required to prevent or terminate the Emergency Security Issue.
- Obligations. Each party will: (a) protect the other party’s Confidential Information with the same standard of care it uses to protect its own Confidential Information; and (b) not disclose the Confidential Information, except to Affiliates, employees and agents who need to know it and who have agreed in writing to keep it confidential. Each party (and any Affiliates, employees and agents to whom it has disclosed Confidential Information) may use Confidential Information only to exercise rights and fulfill its obligations under this Agreement, while using reasonable care to protect it. Each party is responsible for any actions of its Affiliates, employees and agents in violation of this Section.
- Exceptions. Confidential Information does not include information that: (a) the recipient of the Confidential Information already knew; (b) becomes public through no fault of the recipient; (c) was independently developed by the recipient; or (d) was rightfully given to the recipient by another party.
- Required Disclosure. Each party may disclose the other party’s Confidential Information when required by law but only after it, if legally permissible: (a) uses commercially reasonable efforts to notify the other party; and (b) gives the other party the chance to challenge the disclosure.
8. Intellectual Property Rights; Brand Features.
- 8.1 Intellectual Property Rights. Except as expressly set forth herein, this Agreement does not grant either party any rights, implied or otherwise, to the other’s content or any of the other’s intellectual property. As between the parties, Customer owns all Intellectual Property Rights in Customer Data, and Cambrian Lab owns all Intellectual Property Rights in the Services.
- 8.2 Display of Brand Features. Cambrian Lab may display those Customer Brand Features authorized by Customer (such authorization is provided by Customer uploading its Brand Features into the Services) within designated areas of the Service Pages. Customer may specify the nature of this use using the Admin Console. Cambrian Lab may also display Cambrian Lab’s Brand Features on the Service Pages to indicate that the Services are provided by Cambrian Lab. Neither party may display or use the other party’s Brand Features beyond what is allowed in this Agreement without the other party’s prior written consent.
- 8.3 Brand Features Limitation. Any use of a party’s Brand Features will inure to the benefit of the party holding Intellectual Property Rights in those Brand Features. A party may revoke the other party’s right to use its Brand Features pursuant to this Agreement with written notice to the other and a reasonable period to stop the use.
9. Representations, Warranties and Disclaimers.
- 9.1 Representations and Warranties. Each party represents that it has full power and authority to enter into the Agreement. Each party warrants that it will comply with all laws and regulations applicable to its provision, or use, of the Services, as applicable (including applicable security breach notification law).
- 9.2 Disclaimers. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, NEITHER PARTY MAKES ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT. CAMBRIAN LAB MAKES NO REPRESENTATIONS ABOUT ANY CONTENT OR INFORMATION MADE ACCESSIBLE BY OR THROUGH THE SERVICES. CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE NOT A TELEPHONY SERVICE AND THAT THE SERVICES ARE NOT CAPABLE OF PLACING OR RECEIVING ANY CALLS, INCLUDING EMERGENCY SERVICES CALLS, OVER PUBLICLY SWITCHED TELEPHONE NETWORKS.
- 10.1 By Customer. Customer may discontinue use of the Service at any time.
- 10.2 By Cambrian Lab. Customer agrees that Cambrian Lab may at any time and for any reason terminate this Agreement and/or terminate the provision of all or any portion of the Service. Notwithstanding the foregoing, Cambrian Lab will provide at least thirty (30) days notice to Customer prior to terminating or suspending the Service; provided that the Service may be terminated immediately if (i) Customer has breached this Agreement or (ii) Cambrian Lab reasonably determines that it is commercially impractical to continue providing the Service in light of applicable laws.
- 10.3 Effects of Termination. If this Agreement terminates, then: (i) the rights granted by one party to the other will cease immediately (except as set forth in this Section); (ii) Cambrian Lab will provide Customer access to, and the ability to export, the Customer Data for a commercially reasonable period of time; and (iii) after a commercially reasonable period of time, Cambrian Lab will delete Customer Data by removing pointers to it on Cambrian Lab’s active servers and overwriting it over time.
- Customer will indemnify, defend, and hold harmless Cambrian Lab from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third party claim: (i) regarding Customer Data; (ii) that Customer Brand Features infringe or misappropriate any patent, copyright, trade secret or trademark of a third party; or (iii) regarding Customer’s use of the Services in violation of the Acceptable Use Policy. The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party has full control and authority over the defense, except that: (a) any settlement requiring the party seeking indemnification to admit liability or to pay any money will require that party’s prior written consent, such consent not to be unreasonably withheld or delayed; and (b) the other party may join in the defense with its own counsel at its own expense.
12. Limitation of Liability.
- 12.1 Limitation on Indirect Liability. NEITHER PARTY WILL BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.
- 12.2 Limitation on Amount of Liability. NEITHER PARTY MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR MORE THAN ONE THOUSAND DOLLARS ($1000 USD).
- 12.3 Exceptions to Limitations. These limitations of liability apply to the fullest extent permitted by applicable law but do not apply to violations of a party’s Intellectual Property Rights by the other party or indemnification obligations.
- 13.1 Notices. Unless specified otherwise herein: (a) all notices must be in writing and addressed to the attention of the other party’s legal department and primary point of contact; and (b) notice will be deemed given: (i) when verified by written receipt if sent by personal courier, overnight courier, or when received if sent by mail without verification of receipt; or (ii) when verified by automated receipt or electronic logs if sent by facsimile or email.
- 13.2 Assignment. Neither party may assign or transfer any part of this Agreement without the written consent of the other party, except to an Affiliate, but only if: (a) the assignee agrees in writing to be bound by the terms of this Agreement; and (b) the assigning party remains liable for obligations incurred under the Agreement prior to the assignment. Any other attempt to transfer or assign is void.
- 13.3 Change of Control. Upon a change of control (for example, through a stock purchase or sale, merger, or other form of corporate transaction): (a) the party experiencing the change of control will provide written notice to the other party within thirty days after the change of control; and (b) the other party may immediately terminate this Agreement any time between the change of control and thirty days after it receives the written notice in subsection (a).
- 13.4 Force Majeure. Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond the party’s reasonable control.
- 13.5 No Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver.
- 13.6 Severability. If any provision of this Agreement is found unenforceable, the balance of the Agreement will remain in full force and effect.
- 13.7 No Agency. The parties are independent contractors, and this Agreement does not create an agency, partnership or joint venture.
- 13.8 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
- 13.9 Equitable Relief. Nothing in this Agreement will limit either party’s ability to seek equitable relief.
- 13.10 Governing Law. This Agreement is governed by California law, excluding that state’s choice of law rules. FOR ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS IN ALAMEDA COUNTY, CALIFORNIA.
- 13.11 Amendments. Any amendment must be in writing and expressly state that it is amending this Agreement.
- 13.12 Survival. The following sections will survive expiration or termination of this Agreement: Sections 6 (Confidentiality), 7 (Intellectual Property; Brand Features), 9 (Representations, Warranties and Disclaimers), 10 (Termination), 11 (Indemnification), 12 (Limitation of Liability), and 13 (Miscellaneous).
- 13.13 Entire Agreement. This Agreement, and all documents referenced herein, is the parties’ entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject. The terms located at a URL and referenced in this Agreement are hereby incorporated by this reference.
- 13.14 Interpretation of Conflicting Terms. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the Agreement, and the terms located at any URL.
- “Acceptable Use Policy” means the acceptable use policy for the Services available at http://www.zplm.io/terms or such other URL as may be provided by Cambrian Lab.
- “Admin Account(s)” means the administrative account(s) provided to Customer by Cambrian Lab for the purpose of administering the Services. The use of the Admin Account(s) requires a password, which Cambrian Lab will provide to Customer.
- “Admin Console” means the online tool provided by Cambrian Lab to Customer for use in reporting and certain other administration functions.
- “Administrators” mean the Customer-designated technical personnel who administer the Services to End Users on Customer’s behalf.
- “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a party.
- “Brand Features” means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time.
- “Confidential Information” means information disclosed by a party to the other party under this Agreement that is marked as confidential or would normally be considered confidential under the circumstances. Customer Data is Customer’s Confidential Information.
- “Customer Data” means data, including email, provided, generated, transmitted or displayed via the Services by Customer or End Users.
- “Emergency Security Issue” means either: (a) Customer’s use of the Services in violation of the Acceptable Use Policy, which could disrupt: (i) the Services; (ii) other customers’ use of the Services; or (iii) the Cambrian Lab’s network or servers used to provide the Services; or (b) unauthorized third party access to the Services.
- “End Users” means the individuals Customer permits to use the Services.
- “End User Account” means a Cambrian Lab-hosted user account established by Customer through the Services for an End User.
- “End User Terms” means those terms located at the following URL: http://www.zplm.io/user_terms, or such other URL as Cambrian Lab may provide.
- “Export Control Laws” means all applicable export and reexport control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, tradeand economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State.
- “Support” means the Z PLM Support services accessible at http://www.zplm.io/support, or other such URL as Cambrian Lab may provide.
- “High Risk Activities” means uses such as the operation of nuclear facilities, air traffic control, or life support systems, where the use or failure of the Services could lead to death, personal injury, or environmental damage.
- “HIPAA” means the Health Insurance Portability and Accountability Act of 1996, as may be amended from time to time, and any regulations issued thereunder.
- “Intellectual Property Rights” means current and future worldwide rights under patent law, copyright law, trade secret law, trademark law, moral rights law, and other similar rights.
- “Notification Email Address” means the email address designated by Customer to receive email notifications from Cambrian Lab. Customer may change this email address through the System Configuration.
- “Service Pages” mean the web pages displaying the Services to End Users.
- “Services” means those services full described here: http://www.zplm.io/user_features, or other such URL as Cambrian Lab may provide.
- “Deactivate” means the immediate disabling of access to the Services, or components of the Services, as applicable, to prevent further use of the Services.
- “Term” means the term of the Agreement, which will begin on the Effective Date and continue until the earlier of: (i) the end of the last Services Term or (ii) the Agreement is terminated as set forth herein.
- “Third Party Request” means a request from a third party for records relating to an End User’s use of the Services. Third Party Requests can be a lawful search warrant, court order, subpoena, other valid legal order, or written consent from the End User permitting the disclosure.