Visor de contenido web (JSR 286)

Straight Talk Car Connection Terms and Conditions

Please read these Terms and Conditions of Service carefully. These Terms and Conditions of Service are a legally binding agreement (“Agreement”) between you and Straight Talk. They contain important information about your legal rights, and require that certain disputes be resolved through Arbitration instead of a court trial. Straight Talk reserves the right to change or modify any of these Terms and Conditions of Service at any time and in its sole discretion. Any changes or modifications to these Terms and Conditions of Service will be binding upon you once posted on the Straight Talk website found at straightalkcarconnection.com. Straight Talk Car Connection is a brand and service of TF Wireless Products, LLC.

By purchasing and/or activating a Straight Talk Car Connection device and/or using any Straight Talk Car Connection service (“Service”), customer (“You”) acknowledges and agrees to the following terms and conditions:

1. ACCESS TO CAR CONNECTION; RESTRICTIONS ON USE AND LICENSES

Access to Car Connection. During the term of this Agreement and subject to the terms and conditions herein, Straight Talk hereby grants You a limited, non-exclusive, non-transferable, non-royalty-bearing license to access Car Connection through the Internet solely for the purpose of Tracking and Monitoring Devices (“Device"). Car Connection shall be made available to You on-line www.mycarconnection.com/straighttalk or such other website as may be designated by Straight Talk from time to time from a third party hosted facility and/or other systems used by Straight Talk to host the Services.

Use by Sub-Account Holders. A Customer may authorize other individuals (“Sub-Account Holders”) to use the Devices and Services ordered by the Customer under this Agreement. In such cases, Customer shall ensure that such Sub-Account Holders use the Devices and Services in a manner that complies with all applicable laws and this Agreement. Customer is solely responsible for such Sub-Account Holders’ usage of the Devices and Services. Customer agrees to require each Sub-Account Holder using Customer's account to comply with the obligations set forth in this Agreement, including, without limitation, the restrictions contained herein.

Restrictions on Use; No Modification. You, your Sub-Account Holders and Monitored Users shall not engage in any of the following acts (individually, a “Prohibited Act”, and collectively, “Prohibited Acts”):  (i) willfully tamper with the security of any Straight Talk devices or services; (ii) access data not associated with your account via Straight Talk Devices or Services; (iii) log into an unauthorized server or another Straight Talk account without authorization; (iv) attempt to probe, scan or test the vulnerability of any Straight Talk services or to breach Straight Talk’s security or authentication measures without proper authorization; (v) willfully render any part of Straight Talk’s devices or services unusable; (vi) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of any Straight Talk services; (vii) modify, translate, or create derivative works based on any Straight Talk services; (viii) rent, lease, distribute, license, sublicense, sell, resell, assign, or otherwise commercially exploit any Straight Talk services or make any Straight Talk services available to a third party other than as contemplated in this Agreement; (ix) use any Straight Talk services for timesharing or service bureau purposes or otherwise for the benefit of a third party; (x) publish or disclose to third parties any evaluation of Straight Talk services without Straight Talk’s prior written consent; (xi) remove, modify, obscure any copyright, trademark, patent or other proprietary notice that appears on Straight Talk’s website(s) or in association with its services; (xii) create any link to Straight Talk’s website(s) or frame or mirror any content contained or accessible from Straight Talk’s website(s); or (xiii) use any data or information obtained through the use of Straight Talk’s devices for any unlawful purpose or in violation of any applicable law (including, without limitation, data protection and privacy laws). Except as expressly provided in this Agreement, no right or license is granted hereunder, by implication, estoppel or otherwise (xiv) attempt to remove the SIM card from your Device or to attempt to use it in any other device.  This Device and Service is for use in the United States only.

Ownership. You acknowledge that, as between You, your Sub-Account Holders, and Straight Talk, all right, title and interest in the Car Connection Service, any software, provided under this Agreement, and all modifications and enhancements thereof, including all rights under copyright and patent and other intellectual property rights, belong to Straight Talk. This Agreement does not provide you with title or ownership of Car Connection Service or any software provided under this Agreement, but only the rights specified in this Agreement. You will own Your Device.

2. SERVICES

Availability of Services. Subject to the terms and conditions of this Agreement, Straight Talk shall use commercially reasonable efforts to make the Services available for twenty-four (24) hours a day, seven (7) days a week. You agree that from time to time the Services may be inaccessible or inoperable for reasons beyond the control of Straight Talk, including, but not limited to: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Straight Talk may undertake; or, (iii) interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures. You shall not be entitled to any setoff, discount, refund or other credit as a result of unavailability of the Services. You agree that Straight Talk has no control of availability of Services on a continuous or uninterrupted basis.  Straight Talk does not guarantee any specific response rate (bandwidth).  Any unavailability of the Services will be relayed to you as soon as possible.

Security. Straight Talk shall use commercially reasonable efforts to prevent unauthorized access to restricted areas of Car Connection and any databases or other sensitive material; and, Straight Talk shall notify You of any known security breaches to its systems that are reasonably likely to adversely affect You or your account, in accordance with applicable law.

Uninterrupted Power Supply (UPS). Straight Talk will implement a high-availability architecture at the data center to ensure, as much as possible, continued availability of access to the Services even when there is power failure and/or hardware malfunction.

Car Connection Support. The manufacturer of Your Device will provide customer technical support for problems with the Car Connection Service and Your Device. Support hours and contact numbers are listed at www.mycarconnection.com/straighttalk

Customer Data. Straight Talk does not collect or retain monitoring and tracking data collected by your Device. Any requests for that information, including subpoenas must be directed to Omnilink at optout@omnilink.com

3. CUSTOMER RESPONSIBILITIES

Use of Services. WARNING: THE UNAUTHORIZED TRACKING OR MONITORING OF AN INDIVIDUAL MAY BE A CRIMINAL ACT.  Consult the laws of your state for more information. You acknowledge and agree that You will not use the Services to: (i) Track and/or Monitor any individual without such individual’s prior express permission unless such individual is a minor with whom You have a lawful guardian relationship and you are permitted by law to track or monitor such minor; (ii) send spam or otherwise unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or violating of third party privacy rights; (iii) send messages to any email lists, distribution lists, newsgroups, or spam email addresses; or, (iv) send or store material containing malicious code, including, without limitation, software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs. You agree to report immediately to Straight Talk, and to use best efforts to stop immediately, any violation of the terms and conditions set forth in this Section or any of Straight Talk’s published policies (collectively, “Policies”), including but not limited to the Straight Talk Privacy Policy located at straightalkcarconnection.com/privacy-policy.htm which are incorporated herein by reference. In the event of any suspected violation of the terms, conditions and restrictions set forth in this Section or the Straight Talk Privacy Policy, Straight Talk may immediately disable your access to the Services and suspend its provision of such Services.

THE UNAUTHORIZED USE OF A TRACKING DEVICE TO TRACK OR MONITOR ANOTHER PERSON WITHOUT THEIR CONSENT IS AGAINST THE LAW IN SOME STATES.  YOU AGREE NOT TO EMPLOY THIS DEVICE OR SERVICE IN ANY MANNER WHICH IS INCONSISTENT WITH APPLICABLE LAW.   

Access To Hosted Services. Straight Talk will provide You with a user name, password and other information necessary to access the Car Connection service. You are responsible for keeping the respective user names and passwords confidential and for any communications or transactions made using user name and password. You are responsible for changing the respective user names and password if it is believed that the same has been stolen or might otherwise be misused.

Equipment and Utilities. You are responsible and shall bear the costs associated with providing and maintaining Internet access and all necessary telecommunications equipment, software and other materials necessary for accessing the Car Connection service.

Consents. You shall obtain the necessary consent(s) from those Monitored Users who are being Tracked and/or Monitored by Your use and Your Sub-Account Holders’ uses of the Device(s) and shall authorize the Tracking and/or Monitoring of such Device(s) by Straight Talk and its subcontractors. If a Monitored User is a minor, You acknowledge that You and/or Your Sub-Account Holder have lawful guardianship over such minor and You further acknowledge that You and/or Your Sub-Account Holder may lawfully Monitor such Monitored User in the location or locations where the Device(s) is used. You agree to indemnify and hold Straight Talk its agents and subcontractors harmless from any and all costs and expenses regarding any claim(s) arising from the unauthorized Tracking and/or Monitoring of the Device(s) by you or your Sub-Account Holders.

4. DEVICES

No Warranties on Devices. The manufacturer of Your Device provides all warranties, if any, regarding Your Device. Straight Talk makes no warranties or representations regarding the Devices.

STRAIGHT TALK EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OR USE. THE FOREGOING LIMITED WARRANTY IS THE CONSUMER’S SOLE AND EXCLUSIVE REMEDY AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. STRAIGHT TALK SHALL NOT BE LIABLE FOR SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF ANTICIPATED BENEFITS OR PROFITS, LOSS OF SAVINGS OR REVENUE, LOSS OF DATA, PUNITIVE DAMAGES, LOSS OF USE OF THE PRODUCT OR ANY ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF ANY SUBSTITUTE EQUIPMENT OR FACILITIES, DOWNTIME, THE CLAIMS OF ANY THIRD PARTIES, INCLUDING CUSTOMERS, AND INJURY TO PROPERTY, RESULTING FROM THE PURCHASE OR USE OF THE PRODUCT OR ARISING FROM BREACH OF THE WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF STRAIGHT TALK KNEW OF THE LIKELIHOOD OF SUCH DAMAGES. STRAIGHT TALK SHALL NOT BE LIABLE FOR DELAY IN RENDERING SERVICE UNDER THE LIMITED WARRANTY, LOSS OF USE DURING THE PERIOD THAT THE PRODUCT IS RETURNED FOR REPLACEMENT OR WARRANTY SERVICE OR FOR THE LOSS OR UNAUTHORIZED USE OF CUSTOMER DATA.

5. LIMITATION OF LIABILITY

LIMITATION OF LIABILITY FOR STRAIGHT TALK CAR CONNECTION SERVICE: IN NO EVENT SHALL STRAIGHT TALK, ITS EMPLOYEES OR LICENSORS OR AFFILIATES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE, SALES OR DATA; ANY COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; PROPERTY DAMAGE, PERSONAL INJURY, INTERRUPTION OF BUSINESS, OR LOSS OF BUSINESS INFORMATION; OR FOR ANY OTHER SPECIAL, DIRECT, INDIRECT, INCIDENTAL, ECONOMIC, COVER, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, OR OTHER THEORY OF LIABILITY ARISING OUT OF THE USE OF OR INABILITY TO USE ANY SERVICE, EVEN IF STRAIGHT TALK, OR THEIR RESPECTIVE LICENSORS OR AFFILIATES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITH RESPECT TO JURISDICTIONS THAT MAY NOT ALLOW THE EXCLUSION OF LIABILITY, BUT MAY ALLOW LIABILITY TO BE LIMITED IN SOME CASES, STRAIGHT TALK, ITS EMPLOYEES, LICENSORS AND AFFILIATES' LIABILITY SHALL BE LIMITED TO U.S. $50.

INDEMNIFICATION: You agree to indemnify and hold harmless Straight Talk from any and all liabilities, penalties, claims, causes of action, and demands brought by third parties (including the costs, expenses, and attorneys’ fees on account thereof resulting from your use of the Services, whether based in contract or tort (including strict liability) and regardless of the form of action.

6. CONFIDENTIALITY

Each Party will use commercially reasonable efforts to maintain the other Party’s Confidential Information in confidence and to not use or disclose any portion of the other Party’s Confidential Information to third parties, except as reasonably necessary to perform this Agreement and as expressly authorized in this Agreement. 

7. DISPUTE RESOLUTION

You agree that you will first contact us with any dispute and provide a written description of the nature of the dispute, all relevant documents and other information concerning the dispute and your proposed resolution before taking any legal action.  You must forward your written dispute to:  TF Wireless Products, LLC, Attn: Executive Resolution Department, 9700 NW 112 Avenue, Miami, FL 33178.

If we are unable to reach a resolution of your dispute within 60 days of your notice to us, you agree that instead of filing a lawsuit or small claims action in a court of law, you will submit the dispute to binding arbitration as set forth in this provision.

BINDING ARBITRATION:  PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS RIGHTS THAT YOU MAY OTHERWISE HAVE. IT PROVIDES FOR RESOLUTION OF ALL DISPUTES AND CLAIMS (INCLUDING ONES THAT ALREADY ARE THE SUBJECT OF LITIGATION), EXCEPT FOR CLAIMS CONCERNING THE UNAUTHORIZED RESALE, EXPORT, ALTERATION, AND/OR TAMPERING OF YOUR STRAIGHT TALK DEVICE, ITS SOFTWARE, THE SERVICE AND/OR PIN NUMBERS, THROUGH ARBITRATION INSTEAD OF SUING IN COURT IN THE EVENT THE PARTIES ARE UNABLE TO RESOLVE A DISPUTE OR CLAIM. ARBITRATION IS BINDING AND SUBJECT TO ONLY A VERY LIMITED REVIEW BY A COURT. THIS ARBITRATION CLAUSE SHALL SURVIVE TERMINATION OF STRAIGHT TALK’S AGREEMENT WITH YOU. This provision is intended to encompass all disputes or claims arising out of your relationship with Straight Talk, arising out of or relating to the Service or any equipment used in connection with the Service (whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory). Nothing contained in this arbitration provision shall preclude Straight Talk from bringing claims concerning the unauthorized resale, export, alteration, and/or tampering of your Straight Talk device, its software, the Service and/or PIN numbers in state or federal court. References to you and Straight Talk include, where applicable, our respective subsidiaries, affiliates, predecessors in interest, successors, and assigns. All claims will be resolved by binding arbitration where permitted by law. You must first present any claim or dispute to Straight Talk by contacting Customer Care to allow an opportunity to resolve the dispute prior to initiating arbitration. The arbitration of any dispute or claim shall be conducted in accordance with the American Arbitration Association ("AAA") under the Wireless Industry Arbitration Rules ("WIA Rules"), as modified by this agreement. You and Straight Talk agree that use of the Service evidences a transaction in interstate commerce and this arbitration provision will be interpreted and enforced in accordance with the Federal Arbitration Act and federal arbitration law. All issues are for the arbitrator to decide, including the scope of this arbitration clause, but the arbitrator is bound by the terms of this agreement. You and Straight Talk agree that any arbitration will be conducted on an individual basis and not on a consolidated, class wide or representative basis. Further, you agree that the arbitrator may not consolidate proceedings or more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. If the preclusion of consolidated, class wide or representative proceedings is found to be unenforceable, then this entire arbitration clause shall be null and void. All fees and expenses of arbitration will be divided between you and Straight Talk in accordance with the WIA Rules, except that Straight Talk will reimburse you for the amount of the filing fee in the event you prevail in the arbitration. Each party will bear the expenses of its own counsel, experts, witnesses, and preparation and presentation of evidence. If for any reason this arbitration provision is deemed inapplicable or invalid, or to the extent this arbitration provision allows for litigation of disputes in court, you waive to the fullest extent permitted by law, (i) the right to a trial by jury and (ii) any claims for punitive or exemplary damages. Unless Straight Talk and you agree otherwise, the location of any arbitration shall be Miami, Florida. Except where prohibited by law, Straight Talk and you agree that no arbitrator has the authority to award punitive damages or any other damages not measured by the prevailing party’s actual damages. Neither you nor Straight Talk shall disclose the existence, contents, or results of any arbitration except to the extent required by law. Judgment on the award rendered may be entered by any court having jurisdiction.

8. CHOICE OF LAW

These Terms shall be construed under the laws of the state in which You reside within the United States without regard to the choice of law rules of that state, except for the arbitration provision contained in these Terms and Conditions, which will be governed by the Federal Arbitration Act. If you reside outside of the United States, these Terms shall be construed under the laws of the State of Florida. This governing law provision applies no matter where You reside, or where You use or pay for the Services.

9. ENTIRE AGREEMENT

This Agreement, along with the documents referenced herein, constitutes the entire Agreement between the Parties concerning the subject matter hereof, superseding all previous agreements, proposals, representations, or understandings, whether oral or written.

The Parties may waive this Agreement only by a writing executed by the Party against whom the waiver is sought to be enforced. No failure or delay in exercising any right or remedy or requiring the satisfaction of any condition under this Agreement, and no act, omission or course of dealing between the Parties operates as a waiver or estoppel of any right, remedy or condition. A waiver made in writing on one occasion is effective only in that instance and only for the purposes stated.

If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions of this Agreement remain in full force, if the essential provisions of this Agreement for each Party remain valid, legal and enforceable.

© 2014 TF Wireless Products, LLC

Version No. 20140709

Should You use the Agnik Vyncs Data Service, the following terms and conditions will apply to You and Agnik, Inc.:

AGNIK, LLC VYNCS DATA END USER LICENSE AGREEMENT (EULA)

This is an Agreement between you, the end user, and Agnik, LLC. By using the VYNCS DATA (as defined in this agreement), (the "System") you are agreeing to be bound by the terms of this Agreement and you also accept the Vyncs Privacy Policy enclosed in this agreement. If you do not agree with the terms of this Agreement, you may not use the VYNCS DATA in the Car Connection Portal. 

VYNCS DATA

  • Vehicle Health
    • Vehicle Health Alerts
    • Vehicle Maintenance Alerts
    • Vehicle Health Scores
    • Vehicle Recall Information
  • Driver Behavior
    • Driver Score
    • Driver Alerts from OBD Data, not from GPS data
  • Fuel Consumption
    • Personalized Fuel Savings Tips
    • Fuel Consumption

LICENSE TERMS AND CONDITIONS

THE LICENSED SYSTEM

The System consists of Agnik’s utility patent 7,715,961, Patent Applications 20100017870, 13,173,408 and other patents pending on OnBoard Fleet, Vehicle, and Driver Monitoring Techniques. Agnik’s copyrighted computer program for the use of those processes and related functions and compilations of vehicle and driver data are proprietary to Agnik’s or its licensors. The System is protected by U.S. and foreign copyright laws. You have no ownership rights in the System. Rather, you have a license to use the System as long as this Agreement remains in full force and effect.

 
INFORMATION COLLECTION ABOUT YOU AND YOUR VEHICLE

By using VYNCS DATA embedded in the Car Connection Portal you allow us to collect the following information about yourself and your vehicle.

  • Information you provide at the Car Connection portal. For example, the Car Connection services require you to sign up for a Car Connection account for accessing VYNCS DATA. When you do, you are asked for personal information, like your name, email address, telephone number, and your vehicle information.
  • Information we get from your use of our services. We may collect and store information from the services that you use and how you use them, like the health condition of your vehicle, how you drive, and your location information.
  • Unique Device Number: You purchase a device from a Third Party other than Agnik. This device has a serial number which is stored in our system and associated with your vehicle.

You agree that we may use information we collect in the following ways:

  • We use the information we collect from all of our services to provide VYNCS DATA, maintain, protect and improve them, to develop new ones, and to protect Agnik and our users. We also use this information to offer you tailored content – like providing you with analytics tailored to your vehicle and your driving behavior. Please note that Agnik does not provide any of the location-related features at the Car Connection portal. We may use your vehicle and driving data for providing other Agnik services.
  • When you contact customer service, we may keep a record of your communication to help solve any issues you might be facing. We may use your email address to inform you about our services, such as letting you know about upcoming changes or improvements.

YOUR USE OF THE SYSTEM

Permitted Use. Provided that you have purchased a valid license, this Agreement permits you to use the System on a non-exclusive basis for personal, reference or business purposes, all as further set forth later in this Agreement. You may use the System as instructed by the documentation to perform its designed functions only for the purposes authorized by this Agreement. Legend. Any System output that is provided to a third party must include the following credit and copyright notice:  Copyright ©AGNIK, LLC. All Rights Reserved. You may not remove, alter, or conceal any copyright or trademark notices appearing on any System output.

You understand and agree that the Agnik trademarks, trade names, service marks, copyrights and other proprietary rights of Agnik are and shall remain the sole and exclusive property of Agnik, and that you will not hold yourself out as having any ownership rights thereto. You further agree that you will make no use of such rights except as provided in this Agreement.

PROHIBITIONS ON USE

No Commercial Use. You do not have the right to sell, or to reproduce or distribute for sale, any part of the System or output of the System alone or in combination with any other text, data, software, or graphic matter.

No Interactive Use. You do not have the right to combine the System interactively with the operation of other software unless licensed to do so by Agnik.

No Modifications or Decompilation. You have no right to modify the System in any way, incorporate any part or product of it into a compilation or create any derivative work. You may not reverse engineer, decompile, disassemble or otherwise access source code or the logical structure and contents of the System database.

No Third Party/Service Bureau Use. You may not (a) permit any third party to use the System or transfer, disclose or otherwise make available the System to any third party, (b) use the System in the operation of a service bureau. You agree to secure and protect the System in a manner consistent with the maintenance of Agnik’s rights therein and to take appropriate action by instruction or agreement with the other users under your account who are permitted access to the System to satisfy your obligations hereunder.

No Ownership of Vehicle Data. You agree that Agnik remains the sole owner of all VYNCS DATA , all representations and derivatives of VYNCS DATA and reports generated from the vehicles using VYNCS DATA.

No Copies. The copying of the System, any portion of the System, or any of the printed materials accompanying the System is strictly prohibited.
All rights regarding VYNCS DATA and any associated reports not specifically granted by this Agreement are reserved by Agnik.

WARNING, WARRANTIES, DISCLAIMER

Agnik does not provide warranties on the services  acquired from others or anything in the Car Connection portal that is not related to VYNCS DATA, e.g., any location/GPS related features, even if acquired with Agnik’s assistance. Unless otherwise agreed in writing, downtime is not a breach of this Agreement by Agnik and will not entitle the End-User to any refunds or credits from Agnik.

Disclaimer of Warranty on Onboard and Web Portal Software. Neither Agnik nor its licensors warrant the completeness or accuracy of the results of the VYNCS DATA , or that its use will meet your needs or be uninterrupted or error-free. PROVIDED THAT END-USER HAS A VALID LICENSE, AGNIK GUARANTEES THAT FOR A PERIOD OF 90 DAYS FROM THE DATE OF SALE TO USE VYNCS DATA OR THE SHORTEST PERIOD PERMITTED BY APPLICABLE LAW IT WILL PERFORM SUBSTANTIALLY AS DESCRIBED IN THE USER MANUAL PROVIDED DIRECTLY BY AGNIK ONLY ON REQUEST; IN THE EVENT THAT VYNCS DATA FAILS TO COMPLY WITH THIS GUARANTEE, AGNIK WILL ISSUE UPDATES/PATCHES TO THE VYNCS DATA AT NO COST TO THE END-USER. THIS GUARANTEE IS VOID IF FAILURE OF THE VYNCS DATA RESULTS FROM ACCIDENT, ABUSE OR MISAPPLICATION. THE END-USER AGREES THAT THE ABOVE GUARANTEE IS THE SOLE GUARANTEE IN RELATION TO THE SOFTWARE AND ANY SUPPORT SERVICES.
WHILE VYNCS TECHNOLOGY MAKES EVERY EFFORT TO COLLECT ALL THE DIAGNOSTIC INFORMATION FROM THE VEHICLE, IT MAY NOT ALWAYS REPORT ALL THE HEALTH-ISSUES OR FUEL COMSUMPTION RELATED INFORMATION ABOUT THE VEHICLE. AMONG OTHER THINGS, VYNCS MAY NOT REPORT SOME MANUFACTURER-SPECIFIC VEHICLE HEALTH ISSUES THAT TURN ON SOME OF THE VEHICLE DASH BOARD LIGHTS. VYNCS DATA IS FOR INFORMATIONAL PURPOSES ONLY AND IT IS NOT INTENDED FOR USE IN VEHICLE REPAIRS WITHOUT CONSULTATION WITH A QUALIFIED TECHNICIAN. AGNIK NOR ITS LICENSORS, RESELLERS, OR SUBSIDIARIES ARE RESPONSIBLE FOR ANY ACTIONS YOU MAY TAKE ON ANY VEHICLES. YOU SHOULD ALWAYS CONSULT A QUALIFIED TECHNICIAN BEFORE PERFORMING ANY REPAIR OR MAINTENANCE OPERATION ON A VEHICLE.

USER ACKNOWLEDGES THAT THE CAR CONNECTION PORTAL REPORTS LOCATION INFORMATION ONCE EVERY FIVE MINUTES WHILE THE VEHICLE IS ON, ONCE EVERY HOUR WHEN THE VEHICLE IS OFF, AND ALL VYNCS DATA ONCE EVERY TWENTY-FOUR HOURS OR EVERY TIME THE VEHICLE IS DRIVEN, WHICHEVER COMES LATER.

THE DEVICE THAT YOU INSTALL IN YOUR VEHICLE DRAWS POWER ALL THE TIMES. ALTHOUGH THE AGNIK ONBOARD SOFTWARE TRIES TO MINIMIZE THAT POWER DRAW AS MUCH AS POSSIBLE, DEPENDING ON YOUR VEHICLE’S BATTERY OR OTHER RELATED SUBSYSTEM CONDITIONS, YOU MAY EXPERIENCE LOW BATTERY VOLTAGE ISSUE IF YOUR VEHICLE IS NOT DRIVEN FOR A FEW DAYS AT A TIME OR IF YOU ARE GOING FOR A VACATION. AGNIK STRONGLY SUGGEST THAT YOU DISCONNECT THE DEVICE FROM THE OBDII PORT IF YOU ARE GOING FOR A VACATION OR PLAN NOT TO DRIVE YOUR VEHICLE FOR MORE THAN A COUPLE OF DAYS AT A TIME.

AGNIK IS NOT RESPONSIBLE FOR (A) DELAYS IN DELIVERY, INSTALLATION OR PROVIDING THE SERVICE, NO MATTER WHO CAUSED THE DELAY; ANYTHING OUTSIDE AGNIK’S REASONABLE CONTROL OR RESULTING FROM END-USERS’ BREACH; OR AN ITEM ACQUIRED FROM A THIRD-PARTY DIRECTLY ACQUIRED BY THE END-USER AND USED IN CONJUNCTION WITH AGNIK’S SERVICES. END USER ACKNOWLEDGES THAT ONBOARD HARDWARE IS A WIRELESS DEVICE AND THAT SOME DATA (SUCH AS GPS DATA) CANNOT BE COLLECTED USING THE ONBAORD HARDWARE ONCE IT TRAVELS BEYOND A CERTAIN RANGE. THE DELIVERY OF THE VYNCS DATA FROM THE IN-VEHICLE ONBOARD HARDWARE TO THE WEB PORTAL MAY ALSO GET DELAYED BECAUSE OF THIS. THE SOFTWARE SERVICES ARE DEPENDENT ON THE COVERAGE AREAS OF WIRELESS NETWORKS OWNED AND OPERATED BY THIRD PARTIES. COVERAGE AREAS ARE APPROXIMATE AND DO NOT COVER SIGNIFICANT PORTIONS OF NORTH AMERICA. ACTUAL CAPACITY, SYSTEM AND EQUIPMENT UPGRADES, REPAIRS, MAINTENANCE, MODIFICATIONS, RELOCATION, TERRAIN, SIGNAL STRENGTH, STRUCTURAL CONDITIONS, WEATHER AND ATMOSPHERIC CONDITIONS, GOVERNMENTAL REGULATIONS, AND OTHER ACTS OF GOD, AND OTHER CONDITIONS THAT ARE BEYOND AGNIK’S CONTROL. END-USER UNDERSTANDS THAT AGNIK AND THE UNDERLYING CARRIER CANNOT GUARRANTY THE SECURITY OF THE WIRELESS TRANSMISSIONS, AND WILL NOT BE LIABLE FOR ANY LACK OF SECURITY RELATING TO THE USE OF THE SOFTWARE SERVICES.

THE VYNCS DATA MAY NOT BE AVAILABLE IF THE VEHICLE IS IN AN ENCLOSED SPACE, IN BUILDING, BETWEEN BUILDINGS, UNDERGROUND, OR IN CANYONS. THE SERVICES ARE DEPENDENT ON THE AVAILABILITY OF THE INTERNET, WHICH IS OWNED AND OPERATED BY AND ACCESSED THROUGH THIRD PARTIES. AGNIK DOES NOT WARRANT THAT THE RECEIPT OF VYNCS DATA AND OTHER CONTENT RELATED TO VYNCS DATA FROM THE ONBOARD HARDWARE WILL BE UNINTERRUPTED, OR THAT THE TRANSMISSION OF DATA, FROM AGNIK TO THE CAR CONNECTION PORTAL WILL ALWAYS BE TIMELY OR COMPLETE. END-USER ACKNOWLEDGES THAT VYNCS DATA SHALL NOT PREVENT OR DETECT ALL VEHICLE PROBLEMS, OR GUARANTEE THAT AN END-USER VEHICLE WILL NOT BREAK DOWN OR GUARANTEE THAT END-USER (S) WILL NOT INCUR VEHICLE REPAIR BILLS. END-USER ACKNOWLEDGES THAT THE VYNCS DATA  SHOULD NOT BE USED IN LIEU OF A VEHICLE WARRANTY OR STANDARD VEHICLE MAINTENANCE. END-USER ACKNOWLEDGES THAT VYNCS DATA DOES NOT DETECT FAILURES IN INTERNALLY LUBRICATED PARTS AND SYSTEMS NOT MONITORED BY YOUR VEHICLE ‘S COMPUTER. END-USER ALSO ACKNOWLEDGES THAT VYNCS DATA ONLY MONITORS A SUBSET OF THE VEHICLE SYSTEMS. END-USER ACKNOWLEDGES THAT IF THE LOCATION-BASED DATA OR LOCATION-BASED SERVICES ARE USED TO ATTEMPT TO LOCATE A VEHICLE (E.G. A STOLEN VEHICLE), AGNIK DOES NOT GUARANTEE THAT THE VEHICLE WILL BE SUCCESSFULLY LOCATED AND/OR RECOVERED. IN THE EVENT THE VYNCS DATA IS NOT ACTUALLY AVAILABLE OR IS NOT FUNCTIONING PROPERLY ON A PARTICULAR MAKE/MODEL OF VEHICLE, AGNIK SHALL HAVE THE SOLE RIGHT TO REFUSE TO PROVIDE A REPLACEMENT VYNCS DATA SERVICE.
 

EXCEPT FOR THE WARRANTIES SET FORTH ABOVE, THE VYNCS DATA IS LICENSED “AS IS”. AGNIK DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. AGNIK DOES NOT WARRANT THAT THE SOFTWARE OR ANY EQUIPMENT, SYSTEM OR NETWORK ON WHICH THE SOFTWARE IS USED WILL BE FREE OF VULNERABILITY TO INTRUSION OR ATTACK.

NO CONSEQUENTIAL DAMAGES. ALL VYNCS DATA AND AGNIK ANALYTICS SHOULD BE USED FOR INFORMATIONAL PURPOSE ONLY, AS A TOOL FOR DECISION SUPPORT. MANY OF THE ANALYTICS IN VYNCS DATA ARE GENERATED BASED ON A COLLECTION OF POWERFUL DATA MINING AND STATISTICAL TECHNIQUES. WHILE AGNIK MAKES EVERY EFFORT TO MAKE THEM AS ACCURATE AS POSSIBLE, THE PERFORMANCE OF THESE ALGORITHMS DEPENDS ON VARIOUS ISSUES SUCH AS AMOUNT OF DATA ANALYZED, ITS QUALITY, AND THE TECHNIQUES THEMSELVES. SOMETIMES, JUST LIKE THEIR HUMAN COUNTERPARTS, DATA ANALYSIS TECHNIQUES MAY PRODUCE RESULTS THAT MAY NOT BE CORRECT. BAD SENSORS MAY ALSO REPORT INCORRECT DATA. YOU SHOULD ALWAYS VERIFY EVERY ITEM IN THE REPORTS WITH QUALIFIED TECHNICIANS. IN NO EVENT SHALL AGNIK OR ITS LICENSORS BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, VOIDED VEHICLE MANUFACTURER’S OR ANY  OTHER PARTY’s WARRANTY FOR YOUR VEHICLE OR ANY VEHICLE PARTS AND OR LABOR, LOSS OF REVENUES OR PROFITS, ANY INCURRED COST RESULTING FROM THE USE OF THE DEVICE OR VYNCS DATA EVEN IF AGNIK OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Restrictions. This warranty does not apply if the System (a) has been altered, except by Agnik or as authorized herein, (b) the Onboard hardware has not been installed, operated, repaired, or maintained in accordance with instructions supplied by Car Connection product documents only in regard to VYNCS DATA ,(c) has been subjected to abnormal physical or electrical stress, misuse, negligence, or accident; or (d) is licensed, for beta, evaluation, testing or demonstration purposes for which Agnik does not receive a payment of purchase price or license fee.

TERMINATION AND TRANSFER

Agnik may terminate this Agreement at any time for any reason, including, but not limited to, if Agnik finds that you have violated any of the terms of this Agreement or that you have attempted to exceed the licensed uses in any way. Termination will be effective upon written notice to you. Upon termination of this Agreement you agree that Agnik will stop providing VYNCS DATA and all related services. Termination is in addition to and not in lieu of any other remedies available to Agnik. All provisions relating to property rights shall survive termination. You are not authorized to transfer your rights under this Agreement. 

OTHER

This Agreement contains the complete understanding between the parties and supersedes and replaces any prior or contemporaneous agreement or understanding, whether oral or written, with respect to its subject matter. This Agreement shall be governed by the laws of the State of Maryland, applicable to agreements wholly executed and wholly performed in Maryland. Any action relating to this Agreement shall be brought to federal or state court in Maryland and the parties consent to the personal jurisdiction of either such court.

U.S. GOVERNMENT RIGHTS IN COMMERCIAL SOFTWARE

Use, duplication or disclosure by the Government is subject to restrictions set forth in the commercial computer software license agreement under which the software is delivered by Agnik and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) or DFARS 227.225-7013 (OCT 1988), as applicable, or FAR 12.212(a), FAR 52.227-14 or FAR 52.227-19, as applicable.

Last Modified: October 15, 2012.
AGNIK LLC
8840 Stanford Blvd., Suite 1300
Columbia, MD 21045, USA

Should You order or use the ZoomSafer Services, the following terms and conditions will apply to You and AEGIS Mobility.:

ZoomSafer License Agreement for Drivers

THIS LICENSE AGREEMENT FOR DRIVERS (THIS “AGREEMENT”) IS BY AND BETWEEN AEGIS MOBILITY. (“ZOOMSAFER”) AND THE DRIVER OBTAINING THE SERVICE (“DRIVER”).

1. SERVICE

a) Generally. Additional terms applicable to specific services provided at the end of this Agreement, ZoomSafer will make available to Driver the applicable ZoomSafer service, including access to a portal containing server-based software (the “Service”).

b) Description and Modifications. The Service is described in more detail in technical documentation provided by ZoomSafer to Driver describing the functionality of the Service (the “Documentation”).

c) SPECIAL NOTE ABOUT THE SOFTWARE AND SERVICE. DRIVING IS AN INHERENTLY DANGEROUS ACTIVITY THAT REQUIRES FULL ATTENTION BY THE VEHICLE OPERATOR. THE SERVICE PROVIDES A NUMBER OF FUNCTIONS INTENDED TO REDUCE DISTRACTIONS FROM A MOBILE DEVICE WHILE DRIVING. ANY USE OF A MOBILE DEVICE WHILE DRIVING DIVERTS THE ATTENTION OF A VEHICLE OPERATOR FROM THE ROAD AND COULD RESULT IN A CRASH. ADDITIONALLY, USING A MOBILE DEVICE WHILE DRIVING MAY BE ILLEGAL IN CERTAIN JURISDICTIONS. DRIVER IS RESPONSIBLE FOR KNOWING THE LAWS OF THE JURISDICTION IN WHICH THEY DRIVE AND FOR COMPLYING WITH SUCH LAWS AS WELL AS ALL OTHER PRECAUTIONS NECESSARY FOR SAFE DRIVING.

2. PAYMENT TERMS

Payment terms, as appropriate, are as provided when Driver signs up for the applicable Service. Without limiting other terms, failure to make timely payments will result in termination of the Service.

3. RESTRICTIONS

a) Driver shall use the Service (including any software, information or other technology provided by ZoomSafer) only for its personal purposes. The use of any software, information or other technology provided by ZoomSafer is permitted only in conjunction with the Service and not with any technology or service provided by any party other than ZoomSafer unless explicitly authorized in writing by ZoomSafer.

b) Except to the extent expressly permitted in this Agreement, Driver shall not: (i) permit any third party to use any software, information or other technology provided by ZoomSafer; (ii) market, sell, rent, lease, disclose, distribute, sublicense or otherwise offer or transfer any software, information or other technology provided by ZoomSafer (or any portion thereof); (iii) make copies of any software, information or other technology provided by ZoomSafer; (iv) access the Service through any means other than any software, information or other technology provided by ZoomSafer  in conjunction with a single Driver cell phone, personal digital assistant (“PDAs”) or other mobile device specified during the registration process  (“Designated Mobile Device”) and through the ZoomSafer website or as otherwise permitted by ZoomSafer; (v) use any software, information or other technology provided by ZoomSafer (or any portion thereof) for commercial time-sharing, service bureau or any other commercial use; (vi) reverse engineer, disassemble, decompile or otherwise attempt to derive the source code from software (if any) provided by ZoomSafer, use  any software, information or other technology provided by ZoomSafer for any evaluation of the structure or design of such software or other technology or any other form of competitive analysis, or permit any third party to do any of the foregoing; (vii) modify or create any derivative works based on any software, information or other technology provided by ZoomSafer; or (viii) alter, remove or obscure any copyright, trademark or other protective notices contained in or on any portion of any software, information, or other technology provided by ZoomSafer or audibly announced by the Service.

4. OWNERSHIP

Any software, information, or other technology provided by ZoomSafer is licensed, not sold. As between Driver and ZoomSafer, all rights, title and interest in and to any software, information, or other technology provided by ZoomSafer and the Service, any modifications or derivative works of and any copies of the foregoing, and all intellectual property rights related to all of the foregoing, will be owned by ZoomSafer.

5. COMPLIANCE WITH LAW, NOTIFICATIONS, AND PERMISSIONS

Driver is responsible for compliance with all federal, state, local and foreign laws applicable to Driver’s and any Driver’s use of the Service and any software, information, or other technology provided by ZoomSafer. Driver will indemnify and hold harmless ZoomSafer against all losses, liabilities, judgments, awards, and costs arising out of or relating to this Service.

TERM AND TERMINATION

a) The Agreement for each applicable Service will begin on the date of first use and will continue for the period agreed to by Driver.

b) ZoomSafer reserves the right to immediately terminate this Agreement, Driver’s use of any software, information, and other technology provided by ZoomSafer or Driver’s access to and use of the Services, at any time and for any reason, with or without cause. Upon termination of this Agreement by either party, Driver’s right to use any software, information and other technology provided by ZoomSafer and the Services shall immediately cease, and each party shall delete or destroy, all copies of any software, information and other technology provided by the other party and all Confidential Information, including any copies or partial copies thereof, whether made under the terms of this Agreement or otherwise. Sections 1.c (Special Note About Software and Service), 3.b (Restrictions), 4 (Ownership), 5 (Compliance with Law and Permissions), 6 (Termination), 8(b) (Warranty Disclaimers), 9 (Limitation of Liability; Exclusion of Damages), 10 (Indemnity), 11 (Jurisdictional Issues), 12 (Government Rights), and 13(Miscellaneous) of this Agreement, and any payment obligations hereunder, will survive termination of this Agreement.

7. THIRD PARTY APPLICATIONS AND CONTENT

a) The Service may require use of technology (including hardware and software) and information provided by third parties, including the mobile carriers, email and SMS programs, Bluetooth hardware, data from GPS and telematics services/providers, cell phone usage data from mobile carriers or email applications and servers, and phone dialers and other applications. The Service may send or receive information and electronic data in conjunction with these third party technologies and information, and the malfunctioning, latency, accuracy or other errors of such third party technology and information may affect the functioning of any software, information, and other technology provided by ZoomSafer and/or Service. This Agreement does not apply to any such third party technology or information. ZoomSafer is not responsible for any functionality, content, suitability, privacy, support or other attributes of the technology and information that Driver may request from or deliver to a Designated Mobile Device or in conjunction with the functioning of Software and/or Service.

b) The Service may also use information and messaging networks operated by a third party to send information from a Designated Mobile Device to ZoomSafer’s servers, and to serve information back to such Designated Mobile Device. Depending on Driver’s or a Driver’s data and messaging plan, Driver may incur charges from the wireless service provider for use of its networks and/or for specific services such as making phone calls, sending or receiving text messages and/or emails, or other wireless data services. Driver is solely responsible for any and all costs Driver incurs as a result of the usage of the Service.

8. LIMITED WARRANTY AND DISCLAIMER OF WARRANTY

a) Provided that Driver complies with the technical and use requirements of this Agreement, including the Documentation, ZoomSafer warrants for a period of ninety days after Driver first uses the Service, the applicable Service will materially comply with the Documentation.  As Driver’s sole remedy for such warranty, ZoomSafer will use reasonable efforts to repair any noncompliance.  If ZoomSafer is unable to do so, ZoomSafer will refund the amounts paid for the applicable Service and will terminate the Agreement as it applies to such Service.

b) DISCLAIMERS: i) EXCEPT AS PROVIDED IN THIS SECTION THE SERVICE AND SOFTWARE, INFORMATION, AND OTHER TECHNOLOGY PROVIDED BY ZOOMSAFER ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. ZOOMSAFER DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ALL WARRANTIES THAT MAY ARISE FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. ZOOMSAFER DOES NOT WARRANT THAT SOFTWARE, INFORMATION, OR OTHER TECHNOLOGY PROVIDED BY ZOOMSAFER OR THE SERVICE WILL BE SECURE, ACCURATE, OR RELIABLE OR WILL MEET DRIVER’S REQUIREMENTS. ii) DRIVER ACKNOWLEDGES AND AGREES THAT ITS USE OF THE SERVICE AND SOFTWARE, INFORMATION, AND OTHER TECHNOLOGY PROVIDED BY ZOOMSAFER IS AT ITS OWN DISCRETION AND RISK, AND THAT DRIVER IS SOLELY RESPONSIBLE FOR ANY AND ALL DAMAGES OR INJURIES (INCLUDING WITHOUT LIMITATION PROPERTY DAMAGE, PERSONAL INJURIES AND DEATH), SUFFERED OR INCURRED BY DRIVER, OR OTHERS IN CONNECTION WITH DRIVER’S USE OF THE SERVICE AND SOFTWARE, INFORMATION, AND OTHER TECHNOLOGY PROVIDED BY ZOOMSAFER, INCLUDING WHILE DRIVING. iii) DRIVER ACKNOWLEDGES THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET, EMAIL, MOBILE CARRIER BILLING DATA AND EMAIL APPLICATIONS AND LOGS, AND VOICE AND ELECTRONIC COMMUNICATIONS. ZOOMSAFER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR DAMAGES RESULTING FROM SUCH PROBLEMS. iv) DRIVER UNDERSTANDS AND AGREES THAT IT DOWNLOADS OR OTHERWISE OBTAINS MATERIAL OR DATA THROUGH THE SERVICE AT ITS OWN DISCRETION AND RISK. DRIVER ACKNOWLEDGES THAT LICENSOR DOES NOT GUARANTEE THE COMPLETENESS OF EVENT AND OTHER DATA CAPTURED THROUGH THE SERVICE. THE DATA CAPTURED MAY BE SUSCEPTIBLE TO DELAYS AS WELL AS MISSING DATA DUE TO HANDSET PERFORMANCE, THE MOBILE NETWORK, MOBILE CARRIER BILLIG DATA, EMAIL APPLICATIONS AND LOGS, THIRD PARTY SERVICES INCLUDING TELEMATICS VENDORS AND OTHER TECHNOLOGY BEYOND ZOOMSAFER’S CONTROL. v) DRIVER FURTHER ACKNOWLEDGES AND AGREES THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY IN THIS AGREEMENT REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN DRIVER AND ZOOMSAFER. vi) FOR CONSUMERS OBTAINING THE SOFTWARE/SERVICE FROM A THIRD PARTY. IF AN IMPLIED WARRANTY OR CONDITION IS CREATED BY YOUR STATE/JURISDICTION AND FEDERAL OR STATE/PROVINCIAL LAW PROHIBITS DISCLAIMER OF IT, YOU ALSO HAVE AN IMPLIED WARRANTY OR CONDITION, BUT ONLY AS TO DEFECTS DISCOVERED DURING THE PERIOD OF THIS LIMITED WARRANTY (NINETY DAYS). AS TO ANY DEFECTS DISCOVERED AFTER THE NINETY (90) DAY PERIOD, THERE IS NO WARRANTY OR CONDITION OF ANY KIND. SOME STATES/JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY OR CONDITION LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. ANY SUPPLEMENTS OR UPDATES TO THE SERVICE AFTER THE EXPIRATION OF THE NINETY DAY LIMITED WARRANTY PERIOD ARE NOT COVERED BY ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY.

9. LIMITATION OF LIABILITY; EXCLUSION OF DAMAGES

a) ZOOMSAFER’S MAXIMUM LIABILITY FOR DAMAGES HEREUNDER (INCLUDING, WITHOUT LIMITATION, LIABILITY FOR NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, MISREPRESENTATION AND OTHER CONTRACT OR TORT CLAIMS) WILL NOT EXCEED THE AMOUNTS PAID FOR THE SERVICE AND SOFTWARE, INFORMATION, AND OTHER TECHNOLOGY PROVIDED BY ZOOMSAFER DURING THE ONE YEAR PERIOD IMMEDIATELY PRECEDING THE APPLICABLE CLAIM FOR THE APPLICABLE SERVICE.

b) IN NO EVENT WILL EITHER ZOOMSAFER BE LIABLE TO DRIVER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR SIMILAR DAMAGES ARISING OUT OF THIS AGREEMENT OR THE USE OF THE SOFTWARE, INFORMATION, AND OTHER TECHNOLOGY PROVIDED BY ZOOMSAFER OR THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS OR LOST DATA, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF ZOOMSAFER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

c) The parties acknowledge that the limitations of liability in this Section and the allocation of risk herein are an essential element of the bargain between the parties, without which ZoomSafer would not have entered into this Agreement. Because some jurisdictions do not allow the exclusion or limitation of liability for certain types of damages incurred by certain parties, all or portions of this limitation may not apply to Driver.

10. INDEMNITY

Driver agrees to defend, indemnify and hold harmless ZoomSafer and its employees, officers, directors, shareholders, affiliates, agents, representatives, suppliers an members from and against all claims, losses, costs and expenses (including attorney’s fees) arising out of Driver’s use of, or activities in connection with the Service or any violation of the Agreement by Driver.

11. PRIVACY POLICY

ZoomSafer’s Privacy Policy is available at http://www.ZoomSafer.com/privacy-statement.aspx, and is incorporated herein by reference. ZoomSafer will provide Driver with notice of any updated Privacy Policy and inform Drivers that such policy applies to the Drivers' use of the Service. Please note: the information gathered by ZoomSafer is stored in the United States of America and is subject to American law.

12. GOVERNMENT RIGHTS

This Agreement does not apply to government usage of the ZoomSafer service. Usage of the ZoomSafer service by government entities is by separate agreement

13. MISCELLANEOUS

a) Data. ZoomSafer collects personally identifiable information, such as e-mail address, name, home or work address or telephone number. Depending on the nature of the technology used in conjunction with ZoomSafer services when a vehicle is driven, ZoomSafer may collect information based on the type of technology used. For example, if GPS technology is used in conjunction with ZoomSafer services, ZoomSafer may collect data concerning location, speed, and number of satellites. Through use of ZoomSafer services, ZoomSafer may identify when and Driver is driving. ZoomSafer services may correlate driving and mobile telecommunications behaviors and generate reports regarding such activity. ZoomSafer may generate aggregated, non-personally identifiable information based on the foregoing. ZoomSafer may use such aggregated data for research and development purposes, including marketing (by either ZoomSafer or third parties); provided, however, that Driver will not be identifiable in such data.

b) Force Majeure. ZoomSafer shall not be responsible for any delay or failure in performance to the extent that such delay or failure is caused by fires, strikes, embargoes, explosion, earthquakes, floods, wars, labor disputes, government requirements, civil or military authorities, acts of God or by the public enemy, acts or omissions of carriers or suppliers, failure or unavailability of the Internet or any telecommunication services or other causes beyond its reasonable control.

c) Relationship of the Parties. This Agreement shall not be construed as creating an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise, between the parties, and the parties shall at all times be and remain independent contractors. Except as expressly agreed by the parties in writing, neither party shall have any right or authority, express or implied, to assume or create any obligation of any kind, or to make any representation or warranty, on behalf of the other party or to bind the other party in any respect whatsoever.

d) Complete Agreement. This Agreement constitutes the entire agreement between Driver and ZoomSafer concerning the subject matter hereof and supersedes all prior or contemporaneous discussions, proposals or agreements between the parties relating to the subject matter hereof. No amendment, modification or waiver of any provision of this Agreement will be effective unless in writing and signed by both parties.

e) No Waiver. No course of dealing, course of performance or failure of either party strictly to enforce any term, right or condition of this Agreement shall be construed as a waiver of any other term, right or condition. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other subsequent default or breach. 

f) Export Controls. Driver shall comply with all export laws and regulations applicable to the software, information, and other technology provided by ZoomSafer and the Service. The software, information, and other technology provided by ZoomSafer the Service may not be downloaded or otherwise exported or re-exported (a) into any country for which the United States or Canada has a trade embargo, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders. Driver represents and warrants that it is not located in, under the control of, or a national or resident of any such country or on any such list.

g) Governing Law. This Agreement will be governed by the laws of the Commonwealth of Virginia, USA, without reference to its conflicts of law provisions. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be commenced in a federal court in the Eastern District of Virginia or in state court in the County of Fairfax, Virginia, and each party irrevocably submits to the exclusive jurisdiction and venue of any such court in any such suit, action or proceeding. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.

h) Assignment. Driver shall not assign this Agreement or any of its rights or obligations hereunder without the prior written consent of ZoomSafer. Any purported assignment or delegation by Driver in violation of the foregoing will be null and void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.

i) Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining portions hereof will remain in full force and effect and such provision will be enforced to the maximum extent possible so as to affect the intent of the parties and will be reformed to the extent necessary to make such provision valid and enforceable. 

The following terms apply to specific services provided by ZoomSafer:
If you have obtained ZoomSafer Mobile, the following additional terms apply:

1. SOFTWARE AND SERVICE

a) Generally. ZoomSafer Mobile (“ZS Mobile”) also includes the ZoomSafer Driver application software provided by ZoomSafer for installation on the Designated Mobile Device together with any updates, revisions, error corrections and enhancements to such software that ZoomSafer may provide, and any manuals, handbooks and other written or electronic material accompanying such application software (the “Handset Software”).

b) Limited License – Handset Software. Subject to Driver’s compliance with the terms and conditions of this Agreement, ZoomSafer hereby grants to Driver a non-exclusive, non-transferable, revocable, nonsublicensable, limited license to install and use the Handset Software on the single Designated Mobile Device and to access such web services such as websites, administrative portals and Driver portals.  Driver shall use the Handset Software only on a single Designated Mobile Device.

c) Delivery. ZoomSafer, or, if applicable, a ZoomSafer reseller, will make the Handset Software available for the  Designated Mobile Device and will inform Driver of the applicable methods for accessing such Handset Software.

2. REGISTRATION

In order to access and use ZoomSafer Mobile, Driver may be required to provide ZoomSafer with certain information (e.g. mobile number, name, email address) to allow ZoomSafer to Driver.  Driver represents and warrants to ZoomSafer that it has sufficient rights and authorization to provide all such information to ZoomSafer.

3. DISCLAIMER OF WARRANTY

THE FOLLOWING IS ADDED TO THE WARRANTY DISCLAIMER ABOVE: DRIVER ACKNOWLEDGES THAT THE SPEED SENSING AND AUTOMATIC ACTIVATION FUNCTIONS OF ZOOMSAFER MOBILE AND THE HANDSET SOFTWARE ARE DEPENDENT UPON ONE OR MORE THIRD PARTY SERVICES INCLUDING BUT NOT LIMITED TO THE GPS ON THE MOBILE DEVICE ON WHICH THE HANDSET SOFTWARE IS LOADED, A BLUETOOTH CONNECTION WITH AN IN CAR ACCESSORY OR TELEMATICS SYSTEM AND/OR A COMMAND SENT FROM A TELEMATICS PROVIDER TO THE ZOOMSAFER NETWORK SERVICE. DRIVER ACKNOWLEDGES AND AGREES THAT ZS  MOBILE MAY NOT ACTIVATE AUTOMATICALLY ON A DESIGNATED MOBILE DEVICE IF (I) IF ANY OF THESE ARE NOT FUNCTIONING PROPERLY, OR (II) IF THE INTERFACES FROM THESE ARE NOT FUNCTIONING PROPERLY, OR (III) IF THE WIRELESS CARRIER FOR THAT PHONE DOES NOT ALLOW THIRD PARTY ACCESS TO THESE SERVICES, OR (IV) IF THE PHONE IS IN A LOCATION (FOR EXAMPLE BUT NOT LIMITED TO UNDERGROUND AREAS) WHERE THESE SERVICES ARE NOT AVAILABLE, THE AUTOMATIC ACTIVATION FUNCTIONS OF ZS MOBILE AND THE HANDSET SOFTWARE MAY NOT ACTIVATE AUTOMATICALLY. DRIVER SHALL ENSURE THAT DRIVERS MANUALLY LAUNCH THE HANDSET SOFTWARE EACH TIME BEFORE THEY BEGIN TO DRIVE IF SUCH SOFTWARE DOES NOT AUTOMATICALLY ACTIVATE. THIS SECTION SURVIVES TERMINATION OF THIS AGREEMENT.

If you have obtained ZoomSafer Vision, the following additional terms apply:

1. REGISTRATION AND SET UP

Driver represents and warrants to ZoomSafer that it has sufficient rights and authorization to provide all information to ZoomSafer specified below. Driver further agrees to provide ZoomSafer access to the required information, in whatever form is required for the purpose of delivering an analytics-based safe driving service called ZoomSafer Vision (“ZS Vision”). Through ZS Vision, ZoomSafer will provide to Driver or its employer/contractor information concerning Driver usage of a Designated Mobile Devices during the operation of motor vehicles enabled to provide telematics data. Driver should confirm the terms of usage and use of data with its employer/contractor.

2. INFORMATION COLLECTED AND INTENDED USE

The data collected is used for matching Cell Phone Data (mobile carrier billing information), Telematics Data and Email Data for use by ZoomSafer Vision.

3. CELL PHONE DATA

In the performance of ZS Vision, Driver will provide and/or grant access to cell phone usage (“Cell Phone Data”), that may include, without limitation, the following data elements related to Driver’s Drivers: Driver Id, name, title, location, corporate e-mail address, department/cost center, phone numbers, corporate address as well as call detail records including information regarding inbound and outbound phone calls, text messages, and MMS messages.

4. TELEMATICS AND TRIP DATA

In the performance of ZS Vision, Driver will provide and/or grant access to trip data accessible through approved telematics devices (“Telematics Data”), that may include, without limitation, the following data elements: vehicle identification, driver identification, driver name, GPS Location, speed, trip start/stop data (including waypoints and other information regarding the use of a vehicle, such as hard braking, fast acceleration, etc.).

5. EMAIL DATA

Additionally, in the performance of ZS Vision, Driver will provide and/or grant access to information regarding Driver email usage (“Email Data”) that may include, without limitation, the following data elements: name, title, location, corporate e-mail address as well as information regarding when email messages were read, sent and/or received. 

6. OTHER DATA

As technology and services evolve, Driver will provide and/or grant access to information regarding applicable Driver usage for the purposes of this Agreement.

7. FAIR CREDIT REPORTING ACT (“FCRA”)

Usage of Driver data by an employer or contractor is subject to FCRA. Driver should consult with Driver’s employer /contractor regarding Driver’s rights.