ZOS Discrete Agent (“ZDA”) Terms and Conditions of Use

IMPORTANT-READ CAREFULLY: These Terms and Conditions of Use (“Terms and Conditions”) are a legal and binding agreement between You the End User (“End User” or “You” or “Your”) and ZOS Communications, LLC (“ZOS”) for the use of the ZOS Discrete Agent (also “ZDA” or “Software”) as set forth and defined herein.

You are about to download, and/or install, and/or use Software provided to You by ZOS and or its licensees and or agents.

BY CLICKING ON THE ACCEPTANCE BUTTON OR OTHERWISE INSTALLING OR USING ANY PART OF THE SOFTWARE, YOU ARE CONSENTING TO BECOME A PARTY TO THIS AGREEMENT AND TO BE BOUND BY ITS TERMS. YOUR WRITTEN APPROVAL IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT.

IF YOU DO NOT WANT TO BECOME A PARTY TO THIS AGREEMENT OR DO NOT AGREE WITH OR CANNOT COMPLY WITH ALL OF ITS TERMS, DO NOT CLICK ON THE ACCEPTANCE BUTTON OR INSTALL OR USE ANY PART OF THE SOFTWARE, AND YOU WILL NOT BE LICENSED TO THE SOFTWARE OR BE AUTHORIZED TO USE ANY PART OF THE SOFTWARE.

Definitions:
As used herein, the following terms shall have the designated meanings:


1. “Application:” ZOS Software (“ZDA”) that is or will be used for business or entertainment by End Users.
2. “End User:” The person and/or company who uses Software that has been developed and distributed by ZOS.
3. “Content:” Text, video, photos, images, clipart, and other types of data provided by third parties that are outside of ZOS control and responsibility.
4. “End User Personal Information:” Includes, but is not limited to End User’s name, email address, birth date, gender, address, cell phone number, cell phone service provider, current location, places of interest, personal habits, path of travel, occupation, industry, personal interests, relationship information, lifestyle information, social media interactions, and personal pictures/photographs. Additionally, information from any device or browser used to view, register or download products and services including but not limited to cell phone, tablet, PDA, computer and car. Such additional information may include but is not limited to IP address, unique identifier number (IMEI and the like), cookie information, software and hardware attributes, location, location information and webpage requests.
5. “License:” Restricted right to use ZOS Software.
6. “Locatee:” The End User or device whose location is being requested by an individual or system.
7. “Locator:” The individual or system that is requesting an End User or device location.
8. “Software:” The ZOS Discrete Agent (“ZDA”) together with all related materials, documentation, updates or modifications provided to You by ZOS or its licensees or agents.
9. “ZDA:” The ZOS Discrete Agent is an application that resides on mobile devices to enable communications and interactivity with the ZOS Platform.

1. Use License.
   1. End User License. Subject to Your compliance with these Terms and Conditions and the restrictions and exceptions set forth in the Software "README" file, if any, incorporated herein by reference, ZOS hereby grants to You a limited non-exclusive license for:
      1. use of the Software in accordance with the Restrictions and Conditions detailed below.
      2. download and use of as many copies of the Software from platform app stores as needed for supported smartphones, tablets, and personal computers in accordance with the Restrictions and Conditions mentioned below.
2. License Restrictions.
   1. General Restrictions. You shall not (nor shall You permit anyone else to) directly or indirectly: (i) copy (except as expressly set forth above), modify the Software or any portion thereof; (ii) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organization of the Software or any portion thereof (except where the foregoing is permitted by applicable local law, and then only to the extent so permitted); (iii) rent or lease the Software or any portion thereof to a third party, or otherwise use or allow the use of the Software or any portion thereof to be used for any commercial purpose or on behalf of any third party without ZOS being properly compensated; (iv) remove or obscure any proprietary notices on the Software; (v) post or otherwise make available the Software, or any portion thereof, in any form, on the Internet or other publicly-available forum; (vi) use a previous version of the Software after you receive a new version and are asked to discontinue using the previous version; (viii) export or re-export the Software in violation of any laws or regulations. You are responsible for all fees and costs associated with the copying and installation of the Software.
   2. Specific Conditions. As a specific condition of this license, (i) you agree to defend and indemnify ZOS and its licensors from and against any damages, costs, liabilities, settlement amounts and/or expenses (including attorneys' fees) incurred in connection with any claim, lawsuit or action by any third party that arises or results from the use or distribution of any and all Programs and/or Software; (ii) You agree to use the Software in compliance with all applicable laws, including without limitation copyright laws. (iii) You acknowledge the Software and its features and functions, when used alone or in combination with a computing device or other systems, may be protected by one or more of US and/or foreign patents. A listing of any such patents may be included in the “About” box or menu associated with the Software and ZOS reserves the right update that listing from time to time, but You should not consider any such listing to be a complete or exhaustive list of all patents that may cover the Software and You should not consider the absence of any such listing to be an indication that no patents cover the Software.


3. Special Restrictions, Disclaimers and Liability Limitations With Respect to the Use of the Software.
   1. Third Party Mapping Products, Data and Content. The Software may work in conjunction with or rely upon third party mapping products, data and Content that are not owned or controlled by ZOS in any way and which are used at Your own risk. ZOS disclaims all liability that might arise from the use of such products, data or Content. ZOS does not verify the validity or accuracy of such products, data and Content and Your right to use, copy or do anything with such products, data or Content is solely at the discretion of the third party provider of such products, data and Content.
   2. Utilization of Software under Dangerous Conditions. Use of the Software by the End User under certain conditions, such as walking, driving or in other conditions where their attention may be impaired, can lead to injury or death or to the injury or death of third parties. ZOS disclaims all liability that might arise from End Users that use of the Software under any circumstances where doing so might put them, their possessions, or third parties at risk or in any kind of danger.
   3. Dangerous Locations. ZOS does not provide information regarding the safety or acceptability of locations for which You have received directions or a map. You should only follow directions or maps to locations that You know and trust and should not follow directions or maps to locations with which You are unfamiliar or uncomfortable. Your use of the Software to travel to an unsafe location can lead to Your loss of possessions, injury or death, or to the injury or death of third parties and You accepts all risk associated with such use. ZOS disclaims all liability that might arise from Your use of the Software to travel to a location under any circumstances where doing so might put You, Your possessions, or third parties at risk or any kind of danger.
   4. Use of Content with Software. To the degree You are able to use the Software to incorporate or receive any Content. in messages sent to You or other parties or in association with the Software on any computing device, You do so solely at Your own risk. You may not create scandalous, obscene, defamatory, immoral, infringing or illegal works using the Content nor use the Content for any other purpose which is prohibited by law. If the Content is owned by a third party, You are solely responsible for acquiring the right to copy, use or do anything else with that Content from that third party. ZOS disclaims all liability that might arise from Your use of the Content in association with the Software.
The Software is subject to the following restrictions, disclaimers and liability limitations:


4. Proprietary Rights.

ZOS and its licensors shall own and retain all right, title, and (except as expressly licensed hereunder) interest in and to the Software, and all copies thereof. The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Notwithstanding anything else, the Software is licensed and not sold. All rights in the Software not specifically granted in this Agreement are reserved by ZOS and its licensors.


5. Confidentiality.

You agree to maintain the Software and any data contained therein in confidence and that You will not, other than provided for herein, disclose or distribute the Software to any third party without the express written consent of ZOS. You may not use the Software except as set forth herein. You further agree to take all reasonable precautions to preclude access of unauthorized persons to the Software.


6. Term and Termination.

This license is effective until terminated hereunder. You may terminate the license at any time by destroying the Software (including the related documentation) together with all copies or modifications in any form. ZOS will have the right to terminate the license granted herein immediately if You fail to comply with or breach any term or condition of this Agreement. The license granted to You herein will terminate automatically upon any breach of Sections 1, 2, 3, 13 or 14. ZOS will also have the right to terminate the license granted herein immediately upon its sole discretion. Upon termination of this Agreement for any reason, You shall immediately stop using the Software and shall destroy and remove from all devices containing the software including, but not limited to, computers, hard drives, networks, mobile phones, tablets, appliances and M2M devices. Sections 2 through 17 shall survive any termination of this Agreement.


7. Limited Warranty.

ZOS and its licensors warrant only that the Software will perform substantially in accordance with the specifications stated for the Software in any documentation, if any, accompanying the Software for a period of ninety (90) days (the “Warranty Period”). THIS WARRANTY SHALL NOT APPLY TO ANY SOFTWARE WHICH HAS BEEN ABUSED, MISUSED, DAMAGED, ALTERED, NEGLECTED, OR SUBJECTED TO UNAUTHORIZED REPAIR OR INSTALLATION, AS REASONABLY DETERMINED BY ZOS. NOTWITHSTANDING ANYTHING ELSE HEREIN, THE ENTIRE LIABILITY OF ZOS AND ITS LICENSORS, AND YOUR EXCLUSIVE REMEDY FOR A BREACH OF THE FORGOING WARRANTY, SHALL BE, AT ZOS’ OPTION AND EXPENSE: (A) REPAIR OR REPLACEMENT OF THE SOFTWARE FOR SOFTWARE THAT MEETS THE WARRANTY OR (B) IF REPAIRING OR REPLACING THE SOFTWARE IS NOT COMMERCIALLY PRACTICABLE IN ZOS’ SOLE DISCRETION, REFUND OF THE PURCHASE PRICE PAID BY YOU, IF ANY, IN BOTH CASES ONLY WHERE THE SOFTWARE IS RETURNED TO ZOS, WITHIN THE WARRANTY PERIOD.


8. Warranty Disclaimer.

THE LIMITED WARRANTY SET FORTH IN SECTION 7 IS THE ONLY WARRANTY PROVIDED BY ZOS. EXCEPT FOR THE FOREGOING, THE SOFTWARE AND ANY SERVICES ARE PROVIDED “AS IS” AND ZOS MAKES NO WARRANTY OF ANY KIND WITH REGARD TO THE SOFTWARE OR ANY SERVICES PROVIDED BY ZOS HEREUNDER. ZOS EXPRESSLY DISCLAIMS ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.

FURTHER, ZOS DOES NOT WARRANT RESULTS OF USE OR THAT THE SOFTWARE IS BUG FREE OR THAT ITS USE WILL BE UNINTERRUPTED. ZOS AND ITS LICENSORS DO NOT AND CANNOT WARRANT THE RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.


9. Limitation of Liability.

NOTWITHSTANDING ANYTHING ELSE HEREIN, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, SHALL ZOS OR ITS LICENSORS BE LIABLE TO YOU OR ANY OTHER PERSON (I) FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, OR DAMAGES RESULTING FROM YOUR USE OF THE SOFTWARE OR THE SERVICES PROVIDED BY OR ON BEHALF OF ZOS, OR (II) FOR ANY MATTER BEYOND ZOS' OR ITS LICENSORS' REASONABLE CONTROL. ZOS’ AND ITS LICENSORS' MAXIMUM LIABILITY FOR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE PURCHASE PRICE PAID BY YOU FOR THE SOFTWARE, EXCEPT WHERE NOT PERMITTED BY APPLICABLE LAW, IN WHICH CASE ZOS’ LIABILITY SHALL BE LIMITED TO THE MINIMUM AMOUNT PERMITTED BY SUCH APPLICABLE LAW. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF ZOS HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.


10. Export.

You shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control (“OFAC”), or other United States or foreign agency or authority, and You shall not export, or allow the export or re-export of the Software in violation of any such restrictions, laws or regulations. By using the Software, You agree to the foregoing and represent and warrant that You are not located in, under the control of, or a national or resident of any restricted country.


11. Indemnity.

You shall indemnify and hold harmless ZOS from any third party claims, damages, liabilities, costs and fees (including reasonable attorney fees) arising from Your use of the Software as well as from Your failure to comply with any term of this Agreement.


12. Government Restricted Rights.

If You are or are developing an Application for an agency, department, or other entity of the United States Government (“Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of the Software, or any related documentation of any kind, including technical data or related manuals, is restricted in accordance with Federal Acquisition Regulation 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement 227.7202 for military agencies. This Software is commercial computer software and the related documentation is commercial computer software documentation. The use of the Software and related documentation is further restricted in accordance with the terms of this Agreement, or any modification hereto. ZOS Communications, LLC is located at 1300 Santa Barbara Street, Suite A, Santa Barbara, CA 93109.


13. End User Personal Information.

ZOS collects and uses, Personal Information received, directly or indirectly, by End Users strictly in accordance with best industry practices as detailed in the ZOS Privacy Policy available at http://www.zoscomm.com/privacy-policy. ZOS complies with all applicable laws, rules and regulations relating to the protection and privacy of such Personal Information.


14. Notices and Consent.
    
    (1.a) Notice

ZOS software may from time to time utilize the End User’s network operator and or a location aggregator to help garner a location from a device.

At any time You may elect not to receive messages from ZOS and discontinue use of ZOS Software and services through its removal from all devices containing the software including, but not limited to, computers, hard drives, networks, mobile phones, tablets, appliances and M2M devices. Note: ZOS indefinitely retains historical location data obtained through your use of ZOS products and services. ZOS retains such information to improve its products and services and for ZOS products and services to function properly. ZOS may be required to retain certain information by law. See the ZOS Communications Privacy Policy for more information about ZOS data use and retention practices.

ZOS Software is not provided by Your network operator. If you use ZOS Software, it may require such network operator to disclose Your personal information, including location information, to ZOS or some other third party. By providing Your consent, You authorize your network operator, ZOS or some other third party to disclose your information to third parties solely for the purpose of enabling this application. Please review this document and the ZOS Privacy Policy for more information about how ZOS collects, accesses, uses, and/or discloses Your information. If You are not comfortable with ZOS Software Terms and Conditions of Use, do not use ZOS Software and Services.

(1.a.i) Additional Notice Requirements
You must expressly and affirmatively accept the notice before continuing.


15. Safeguards

End User shall carefully consider the safety implications of each location-based service and implement the appropriate safeguards to address foreseeable risks. End User shall not conduct any activity that violates any applicable policies or other relevant terms of use, including any fraudulent, inappropriate or potentially harmful behavior. ZOS Software and services are not designed to attract children under the age of 13.


16. Trademarks and Logos.

You acknowledge and agree between you and ZOS that ZOS owns all of its trademarks and all ZOS related trademarks, service marks, logos and other brand designations ("ZOS Marks"), and you agree to comply with the ZOS Trademark and Logo Usage Requirements. Any use you make of the ZOS Marks inures to ZOS's benefit.


17. General.

This Agreement represents the complete agreement concerning this license between the parties and supersedes all prior agreements and representations between them. This Agreement may be amended only by a writing executed by both parties. If any provision of this Agreement is held to be illegal or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary to make it legal and enforceable and this Agreement shall otherwise remain in full force and effect and enforceable. The failure of ZOS to act with respect to a breach of this Agreement by You or others does not constitute a waiver and shall not limit ZOS’ rights with respect to such breach or any subsequent breaches. This Agreement is personal to You and may not be assigned or transferred for any reason whatsoever without ZOS’ prior written consent and any action or conduct in violation of the foregoing shall be void and without effect. ZOS expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder. This Agreement shall be governed by and construed under California law (without regard to its conflicts of laws provisions) as such law applies to agreements between California residents entered into and to be performed within California. The sole and exclusive jurisdiction and venue for actions arising under this Agreement shall be the State and Federal courts in Santa Barbara County, California. You hereby agree to service of process in accordance with the rules of such courts.

Each party recognizes and agrees that the warranty disclaimers and liability and remedy limitations in this Agreement are material bargained for bases of this Agreement and that they have been taken into account and reflected in determining the consideration to be given by each party under this agreement and in the decision by each party to enter into this agreement.

Questions concerning this Agreement should be sent to the address set forth below. Any notices or correspondences will only be effective if sent to such address.

ZOS Communications, LLC
1300 Santa Barbara Street, Suite A, Santa Barbara, California 93101