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.
As used herein, the following terms shall have the designated meanings:
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
(1.a.i) Additional Notice Requirements
You must expressly and affirmatively accept the notice before continuing.
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.
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