End-user License Agreement
End User
License Agreement (“Agreement”)
IMPORTANT
READ CAREFULLY: This
Agreement is a legal and binding agreement between you (“You” or “Your”) and ZOS
Communications, LLC (“ZOS”) for the software You are about to download and/or
install and any related materials, documentation, updates or modifications
provided to You by ZOS or its licensees or agents (collectively, the
“Software”).
BY CLICKING
ON THE “I ACCEPT” 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 “I ACCEPT” 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.
Under
this Agreement, You are obtaining a Single User License that will allow you to
use one copy of the Software for Your personal use.
1. License.
(a) Single User License. Subject to Your compliance with the terms and
conditions of this Agreement, ZOS hereby grants to You
a limited, personal, non-sublicensable, non-transferable, non-exclusive license
to:
(i) use one copy of
the Software only for Your personal use on a single computing device (including
a mobile phone, personal digital assistant, or personal computer system) and
only in accordance with the accompanying end user documentation for such device;
and
(ii) make
one copy of the Software in machine readable form solely for archival back-up
purposes, provided You reproduce ZOS's copyright proprietary legends in any such
copy.
2. License Restrictions.
(a) General Restrictions. You shall not (nor shall You permit anyone
else to) directly or indirectly: (i) copy (except as expressly set forth
above), modify, or distribute 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; (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)
distribute copies of the Software to others (electronically or otherwise);
(vii) 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
reexport the Software in violation of any laws or regulations; or (ix) make any
single copy of the Software available for use by multiple users over any
network or from any remote workstation or terminal. Each single computer on which the Software is
installed and used shall be primarily available to only a single user. You are responsible for all fees and costs
associated with the copying and installation of the Software. As a specific condition of this license, You
agree to use the Software in compliance with all applicable laws, including
without limitation copyright laws, and that You will not copy, transmit,
perform or distribute any audio, video or other content using the Software
without obtaining all necessary licenses or permissions from the owner of the
content. 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.
The
Software is subject to the following restrictions, disclaimers and liability
limitations:
(a) 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.
(b) Utilization of Software under
Dangerous Conditions. Your use of
the Software under certain conditions, such as walking, driving or in other
conditions where Your attention may be impaired, can
lead to Your injury or death or to the injury or death of third parties and You
accept all risk associated with such use. ZOS disclaims all liability that
might arise from Your use of the Software under any
circumstances where doing so might put You, Your possessions, or third parties
at risk or in any kind of danger.
(c) Dangerous Users. ZOS does not control who can send You a message containing directions and/or a map to a
location. Only follow directions or maps to a location that have been received
from people You know and trust and do not follow
directions or maps from strangers or anyone who might put You or your
possessions in danger. Your use of the Software to travel to a location or to
meet with a user can lead to Your loss of possessions,
to Your injury or death, or to the injury or death of third parties and You
accept all risk associated with such use. ZOS disclaims all liability that
might arise from Your use of the Software to travel to a location or to meet
with another user under any circumstances where doing so might put You, Your
possessions, or third parties at risk or in any kind of danger.
(d) Dangerous Locations ZOS does not
provide information regarding the safety or acceptability of locations for
which You have received directions or a map. Only
follow directions or maps to locations You know and
trust and do 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, to Your
injury or death, or to the injury or death of third parties and You accept 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 in
any kind of danger.
(e) Use of Content with Software. To the degree You are able to use the
Software to incorporate or receive any content, such as text, video, photos,
images, clipart, etc. (“Content”), in messages sent to your 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.
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, all copies or portions
thereof, and any derivative works thereof (by whomever created). 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 or databases contained therein in
confidence and that You will not disclose 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 any term or condition of this
Agreement. The license granted to You herein will terminate automatically upon any breach of
Sections 1, 2, 3 or 5. 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 computers, hard drives, networks, and other storage
media all copies of the Software.
Sections 2 through 13 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, 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 (I) THE PURCHASE PRICE PAID BY YOU FOR THE SOFTWARE, OR (II) IF YOU RECEIVED
THE SOFTWARE FREE OF CHARGE, TWENTY DOLLARS ($20.00), 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 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 121 Gray Avenue, Suite 101, Santa
Barbara, CA 93109.
13. 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
121 Gray Avenue, Suite 101
Santa Barbara,
California 93101
14 April 2010