Zonar OTAir® TERMS OF USE
Welcome to Zonar Systems, Inc.’s mobile application for facilitating over-the-air software updates to eligible commercial vehicles from a mobile device. PLEASE DO NOT ATTEMPT TO USE THIS APPLICATION OR ANY MOBILE DEVICE WHILE OPERATING A VEHICLE OR HEAVY EQUIPMENT.
ACCESS AND CONSENT
These Terms of Use (“Terms”) govern Your use of the Zonar OTAir® mobile application (“Mobile App”) and define Your relationship with Zonar Systems, Inc. (“ZONAR”). By accessing the Mobile App, You (the Subscriber that downloads and/or accesses the Mobile App) agree to these Terms. If You do not agree to these Terms (in whole or in part), discontinue use of the Mobile App and remove the Mobile App from all mobile devices. ZONAR reserves the right to periodically modify these Terms, so we encourage you to check them from time to time. Your continued use of the Mobile App and Service signifies your acceptance of the Terms as modified. As used in this Agreement, the term “Service” includes the Mobile App. This Service is subject to all of the terms contained in the current Services Agreement, if any, between your employer or principal and ZONAR.
ABOUT THE ZONAR OTAir® SERVICE
The Zonar OTAir® mobile application enables a driver or operator to trigger a software update of a specified engine control module.
YOU ARE RESPONSIBLE FOR ANY DATA COSTS THAT MAY BE CHARGED BY YOUR WIRELESS DATA PROVIDER TO ACCESS AND USE THE SERVICE FROM YOUR MOBILE DEVICE.
A NOTE ON ACCURACY AND AVAILABILITY
Please keep in mind that data provided through the Service may not be accurate, complete or error free. ZONAR does not guarantee the Service will be available for Your use. ZONAR may interrupt or discontinue the Service without any notice to You. You agree that ZONAR will not be liable to You and You release ZONAR from any claims arising from any interruption, discontinuance, or termination of the Service for any reason.
TERM AND TERMINATION
The license is effective until terminated by You or ZONAR. ZONAR may terminate the license at any time. Your rights under this license will terminate automatically without notice from the ZONAR if You fail to comply with any term(s) of this license. Upon termination of the license, You shall cease all use of the Mobile App, and disable and destroy all copies, full or partial, of the Mobile App, and if requested by ZONAR, certify that such deletion occurred. You understand that if You do not remove the Mobile App from Your mobile device that data may continue to be collected by Your mobile device and ZONAR is under no obligation to keep, maintain, transmit, safeguard, store, or notify You of any collection done by Your mobile device after the termination of this Agreement.
ALLOWABLE USE
You agree that your use of this mobile application is for lawful purposes only. You agree that you will not use this mobile application for any unlawful purpose, including committing a criminal offense.
DISCLAIMER
THE SERVICE IS PROVIDED “AS IS” WITH NO WARRANTY OF ANY KIND. YOU ACKNOWLEDGE THAT YOU ARE SOLELY RESPONSIBLE FOR YOUR USE OF THE SERVICE, AND ZONAR EXPRESSLY DISCLAIMS ANY WARRANTY AS TO THE ACCURACY, COMPLETENESS OR SUFFICIENCY THE SERVICE, THE DATA UPON WHICH IT RELIES, OR THE CONTENT. ZONAR MAKES NO WARRANTY THAT THE SERVICE WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ERROR FREE OR OTHERWISE MEET YOUR EXPECTATIONS. ZONAR ALSO EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. YOU ASSUME ALL RISK ASSOCIATED WITH THE USE OF THE SERVICE, INCLUDING WITHOUT LIMITATION THAT THE SERVICE MAY PROVIDE INCORRECT INFORMATION OR THAT ANY MATERIAL DOWNLOADED FROM THE SERVICE MAY CAUSE LOSS OF DATA OR DAMAGE TO YOUR COMPUTER SYSTEM. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
CONFIDENTIALITY
You shall not provide third parties with access to any software and non-public information regarding the Service, and any other confidential information that ZONAR provides, without ZONAR’s prior written consent. Nothing in this section shall prevent you from sharing information with your own employees, subject to adequate confidentiality agreements.
INDEMNIFICATION
You agree to defend, indemnify and hold ZONAR (including its employees, officers, directors and shareholders) harmless from and against any claim, cause of action, demand, cost, expense (including attorneys’ fees), loss suit, proceeding, damage and liability of any kind (collectively, “Claims”) arising out of or in connection with Your use of or inability to use the Service.
INTELLECTUAL PROPERTY
Subject to the terms of this Agreement, ZONAR grants You a non-transferable, non-exclusive, license to install and use the Mobile App software, in executable object code format only. Nothing contained herein, or any other document or agreement related to the Service, shall, by express grant, implication, estoppel or otherwise, create or grant You any right, title, interest, or license in the Service, Site, or Content, or to the inventions, patents, data, computer software, or software documentation associated with any of them. All trademarks, service marks and trade names referenced by or incorporated in the Site, Service, and/or Content are owned by or licensed to ZONAR and You obtain no rights therein by virtue of Your use of the Service, the Site or Content. You covenant and agree not to assert any rights in the Site, Service, Content or in any trademarks used by ZONAR in connection with any of them. The trademarks used by ZONAR and the Content, Site, Service and related software and inventions are protected by United States trademark and copyright and other laws.
LIMITATION OF REMEDIES AND DAMAGES
IN NO EVENT SHALL ZONAR BE LIABLE TO YOU OR TO ANY THIRD PARTY, FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, GOODWILL, PROFITS, INVESTMENTS, USE OF MONEY OR USE OF FACILITIES; INTERRUPTION IN USE OR AVAILABILITY OF DATA; STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS), EVEN IF ZONAR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF (a) THE AVAILABILITY, ACCURACY OR PERFORMANCE OR NON-PERFORMANCE OF THE SERVICE, OR (b) ANY CLAIM, CAUSE OF ACTION, BREACH OF CONTRACT OR ANY EXPRESS OR IMPLIED WARRANTY, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT. ZONAR’S AGGREGATE LIABILITY RELATED TO PROVIDING THE SERVICE SHALL NOT, IN ANY EVENT, REGARDLESS OF WHETHER THE CLAIM IS BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EXCEED THE FEES PAID BY SUBSCRIBER DIRECTLY TO ZONAR FOR THE SERVICE IN THE PRIOR THIRTY (30) DAYS, IF ANY. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER ZONAR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
THE SERVICE SHOULD NOT BE USED OR RELIED ON AS AN EMERGENCY LOCATOR SYSTEM, USED WHILE DRIVING OR OPERATING VEHICLES, OR USED IN CONNECTION WITH ANY HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, OR ANY OTHER APPLICATION IN WHICH THE FAILURE OR INACCURACY OF THE SERVICE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR PROPERTY DAMAGE. THE SERVICE IS NOT SUITED OR INTENDED FOR FAMILY FINDING PURPOSES, FLEET TRACKING, OR ANY OTHER TYPE OF BUSINESS OR ENTERPRISE USE OTHER PRODUCTS EXIST TODAY THAT MAY BE USED SPECIFICALLY FOR THESE PURPOSES.
NOTICE
Any notice required or permitted under this Agreement shall be in writing. If to ZONAR, notice will be delivered in person or by means evidenced by a written confirmation to Zonar Systems, Inc., 18200 Cascade Ave. S, Seattle, WA 98188 (Attn: Legal Dept.), and will be effective only upon receipt. Notice to You may be delivered to the email address You provide with Your user account information. You are responsible for providing us with Your most current e-mail address. In the event that the last e-mail address that You have provided us is not valid, or for any reason is not capable of delivering to You the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice.
COMPLIANCE
ZONAR will determine Your compliance with the Terms and the Privacy Policy in its sole discretion and its decision shall be final and binding. Any violation of the Terms or the Privacy Policy may result in restrictions on your access to all or part of the Service and may be referred to law enforcement authorities. ZONAR reserves the right to modify or discontinue the Site and/or Service, or any portion thereof without notice to you or any third party. ZONAR, in its sole discretion, reserves the right to disqualify and terminate access or use of any individual found to be (a) tampering with the operation of the Site or Service or (b) acting in violation of the Terms or the Privacy Policy.
BINDING AGREEMENT
The Terms and the Privacy Policy constitute a written agreement between you and ZONAR. A printed version of the Terms or the Privacy Policy, and of any electronic notice pertaining to the Terms or the Privacy Policy, shall be admissible in a judicial or administrative proceeding to the same extent, and subject to the same restrictions, as any other contract, document or record originally in printed form.
LINKS
The Mobile App may contain links to other web sites operated by third parties. Such third party web sites are not under the control of ZONAR. ZONAR is not responsible for the content of any third party web site or any link contained in a third party web site. ZONAR provides these links only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to third party web sites.
LIMITATION OF CLAIMS
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
CONSENT TO USE OF DATA
You agree that ZONAR may collect and use technical data and related information, including but not limited to technical information about Your device, system and application software, and peripherals, that are gathered periodically to facilitate the provision of software updates, product support and other services to You (if any) related to the Service. ZONAR may provide data to certain third parties and service providers including: ZONAR’s parent company and/or group affiliates; your employer (if your employer is conducting an evaluation of the Service and you have agreed to participate); or to other relevant third party service providers assisting in the provision of this Service (collectively, "Other Parties"). Additionally, ZONAR may use this information to improve its products or to provide services or technologies to You and for other products and services to which You consent. You understand that ZONAR and Other Parties may be required by law to disclose information regarding Your use of the Service and if required by law, ZONAR and Other Parties will comply with such requests.
PRIVACY
Please review ZONAR’s current Zonar OTAir® Privacy Policy.
RELEASE
You hereby release and forever discharge ZONAR (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, Your use of the Service, including any interactions with, or act or omission of, Additional Users. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
MISCELLANEOUS
These Terms constitute the entire agreement between ZONAR and You with respect to the subject matter hereof, and supersedes all prior or contemporaneous written, electronic or oral communications, representations, agreements or understandings between You and ZONAR with respect thereto. ZONAR’s failure to exercise in any respect any right provided for herein will not be deemed a waiver of any provision of these Terms or of any subsequent breach of the same and no waiver of any provision of these Terms will be effective unless made in writing. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable. These Terms shall be interpreted under the laws of the State of Washington, and, in the event of any controversy or claim arising out of or relating to these Terms or the breach or interpretation thereof, You shall submit to the exclusive jurisdiction of and venue in the Superior Court of King County, Washington, or the Federal District Court for the Western District of Washington, and their respective appellate courts. Digital, electronic, facsimile or scanned signatures will be deemed originals.
This version of Zonar OTAir® Terms of Use is Effective as of November 15, 2019 (Version 1).
This Policy was last updated on June 21, 2021.