Zoombak ™

Customer Agreement

1.    This Is an Enforceable Legal Agreement.

This Customer Agreement (“Agreement”) states the terms and conditions pursuant to which Zoombak, Inc., agrees to provide Customers with certain location-based services (the “Services”).  By clicking on the box on the Zoombak.com Web site Activation page that is next to the statement “I have read and agree to the terms and conditions of the Customer Agreement,” Customer agrees to be bound by the terms and conditions stated in this Agreement.  Customer also agrees to the terms and conditions of this Agreement by paying for and using the Services.  If Customer does not agree to the terms and conditions of this Agreement, Customer may not access or otherwise use the Services.  Certain aspects of the Services utilize Microsoft MapPoint.  For additional information, including terms of use, visit http://go.microsoft.com/fwlink/?LinkId=21969.

2.    Customer Agrees that Zoombak May Monitor, Collect, Use, Communicate, Retain, and Disclose Location Information.

2.1.    Customer agrees that Zoombak may use data from a Zoombak Advanced global positioning satellite locator (the “Device”), which Customer must purchase separately, together with Zoombak’s location tracking and communication technologies, to monitor and collect global positioning satellite (“GPS”) coordinates showing the location of the pet, vehicle, or item (such as a bicycle, briefcase, luggage, backpack, etc.) chosen by Customer (“Location Information”).  The direct tracking of people is prohibited.  The Federal Communications Commission and the Federal Aviation Administration regulations prohibit use of the Device on commercial aircraft, including in checked baggage.

2.2.    Customer agrees that Zoombak will monitor and collect Location Information through communication technologies and networks chosen by Zoombak. 

2.3.    Customer agrees that Zoombak may communicate Location Information to Customer through communication technologies and networks chosen by Zoombak or, at Customer’s request, Zoombak may communicate Location Information to Customer in part through communication technologies and networks chosen by Customer, as when Customer chooses to receive Location Information from Zoombak through Short Message Service (“SMS”) messages sent to Customer’s mobile phone.  Customers can register to receive Location Information and Device alerts through SMS messages by logging in to their account at http://www.zoombak.com and clicking on the "mobile" and “settings” tab.  Instructions regarding how to receive such SMS messages and terms that apply the SMS option are stated in section 21 of this Agreement.

2.4.    Customer agrees that Zoombak may use, retain, and disclose Location Information as described in this Agreement and in Zoombak’s Privacy Policy, available at http://www.zoombak.com/privacy-policy/ (the “Privacy Policy”), which is incorporated by reference in this Agreement.

3.    Customer Is Prohibited From Using the Services for Illegal Purposes.

Customer shall not use, and shall not allow any person to use, the Services in any way that violates a federal, state, or local law, regulation, or ordinance, or for any tortious or illegal purpose, including but not limited to harassing, slandering, defaming, or improperly conducting surveillance of any person. 

4.    Customer Agrees to Certain Warranties.

Customer warrants to Zoombak that:

4.1.    Customer will use the Services only as provided in this Agreement;

4.2.    Customer is at least 18 years old and has the right or has obtained any required authorization  (a) to monitor the location of the pet, vehicle, or item chosen by Customer, and (b) to agree that Zoombak may monitor, collect, use, communicate, retain, and disclose Location lnformation as described in this Agreement; 

4.3.    Any information Customer provides or discloses to Zoombak will be accurate, complete, and current; and

4.4.    Customer will notify Zoombak regarding any material change to information Customer provides by using the methods for contacting Zoombak stated in the “Contact Us” section of www.zoombak.com.

5.    Zoombak May Amend this Agreement at Any Time.

5.1    Zoombak reserves the right, at its sole discretion, to change, modify, add to, or remove any portion of this Agreement, in whole or in part, at any time.  Zoombak will include such Amendments on the version of this Agreement that is posted on Zoombak’s Web site (www.zoombak.com) and will notify Customer by e-mail that the Agreement has been amended. 

5.2    Amendments to the Agreement will take effect immediately upon being posted to the Web site.  Customer’s continued use of the Services after Zoombak posts an Amendment constitutes Customer’s acceptance of and consent to the Amendment.  If Customer does not accept such an Amendment, Customer must notify Zoombak within 30 days after Zoombak notifies Customer of the Amendment that Customer has elected to terminate the Services rather than accept the Amendment. 

5.3    Zoombak will not charge Customer a termination fee if Customer terminates the Services as described in section 5.2 of this Agreement.   

6.    Customer Must Use the Device with the Wireless Carrier Chosen by Zoombak.

Zoombak monitors and collects Location Information using a network of a third party wireless service carrier and Devices provided by Zoombak or by authorized distributors.  Customer shall not use a Device with any other service.

7.     Customer Is Responsible for All Charges Incurred to Use the Services.

7.1.    Customer is responsible for all charges incurred in connection with the Services regardless of who incurs the charges.  If Customer believes there is an error in any charge posted to Customer’s account, Customer must contact Zoombak concerning the disputed charges within 15 days of receiving the bill for those charges, at which time Zoombak will investigate Customer’s claim.  Late payments for any charges billed by Zoombak will be subject to a flat fee of $2.00.

7.2.    Customers who wish to purchase the Services must do so for a period of one year.  Customer must provide a valid and chargeable credit card or debit card (“payment card”) to Zoombak as part of the activation process, which Zoombak will charge for the Services.

7.3.    Customer must pay for the Services in advance on a yearly, monthly, or other subscription basis.  If Customer does not pay in advance for the minimum term required, Customer’s payment card will be charged monthly for the full monthly amount due.  In the event that Customer’s payment card company declines to process Customer’s monthly payment, Zoombak may retry the charge on the payment card.  If payment is again declined, Zoombak may terminate the Services immediately, and without penalty or liability to Zoombak.

7.4    Customer is responsible for any and all taxes and expenses that may be incurred related to use of the Services.

8.    Customer Must Use Zoombak-Supplied Security Information. 

Zoombak will provide Customer a username, passcode, or other security information (“Security Information”), which Customer must use to access and use the Services.  Customer shall maintain the confidentiality of the Security Information and shall be responsible for all activities performed using Customer’s Security Information.  Customer shall notify Zoombak immediately of any unauthorized use of Customer’s Security Information.

9.    Zoombak and Customer May Terminate this Agreement and the Services.

9.1.    The term of this Agreement shall commence when the Customer first activates the Services; provided, however, that Zoombak may decline to activate the Services if (a) Customer fails to provide all required information through the Activation page on the Zoombak.com Web site within 60 days after purchasing the Device that Customer will use to receive the Services; (b) Zoombak determines in its sole discretion that the SIM card in the Device has been or will be used improperly; or (c) Zoombak determines in its sole discretion that Customer will use the Device in a manner that will violate this Agreement. 

9.2.    Zoombak may, with or without cause, immediately terminate this Agreement at any time, and deny Customer access to or use of the Services.  Without limiting the foregoing, Zoombak has the right to immediately terminate or suspend Customer’s account or use of the Services in the event that Customer breaches this Agreement or engages in conduct that Zoombak, in its sole discretion, considers unacceptable.  If this Agreement is terminated, Customer will no longer be authorized to access or use the Services.

9.3.    Customer may terminate the Services at any time.  Except as provided in sections 5.2 and 5.3 of this Agreement, if Customer terminates the Services prior to the expiration of the term of Customer’s contract with Zoombak: (a) Customer’s payment card will be charged $100 as an early termination fee, and (b) either, for such early-terminating Customers who were paying monthly Zoombak will stop charging the Customer’s payment card within 30 days after receiving notice from the Customer of the early termination, or for such early-terminating Customers who paid in advance for a one-year period Zoombak will refund to the Customer within 90 days a pro rata amount for unused Services, as determined by Zoombak.  If not earlier terminated by Customer or by Zoombak, this Agreement shall automatically be extended, on a month-to-month basis at the monthly rate then in effect for Customers who do not prepay for a one-year period, at the end of the period for which Customer has paid as described in sections 7.2 and 7.3 of this Agreement.

9.4.    All provisions of this Agreement that by their nature are intended to survive the expiration or termination of this Agreement, including but not limited to obligations with respect to disclaimers of warranties, limitations of liability, indemnification, and intellectual property rights, shall survive any expiration or termination.

10.    Zoombak Disclaims All Warranties.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ZOOMBAK, ITS SUPPLIERS, AND LICENSORS PROVIDE THE SERVICES “AS IS” AND WITH ALL FAULTS.  ZOOMBAK DOES NOT WARRANT UNINTERRUPTED USE OR OPERATION OF THE SERVICES OR THAT ANY DATA SENT BY OR TO CUSTOMER, OR SENT BY A DEVICE, WILL BE TRANSMITTED IN UNCORRUPTED FORM, WITHIN A REASONABLE AMOUNT OF TIME, OR WITHOUT BEING INTERCEPTED.  ZOOMBAK, ITS SUPPLIERS, AND LICENSORS DISCLAIM ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, WRITTEN, ORAL, CONTRACTUAL, OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES, DUTIES, OR CONDITIONS OF OR RELATED TO:  MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR THAT MAY ARISE FROM A COURSE OF DEALING OR USAGE OF TRADE.

11.    Additional Device Warranty Disclaimers May Apply.

Certain additional warranty disclaimers and limitations may apply with respect to a Device purchased by Customer.  Customer should carefully read the materials accompanying the Device. 

12.    Zoombak’s Potential Liability Is Limited.

12.1.    ZOOMBAK SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOST PROFITS (REGARDLESS OF WHETHER ZOOMBAK HAS BEEN NOTIFIED THAT SUCH LOSS MAY OCCUR) BY REASON OF ANY ACT OR OMISSION IN ITS PROVISION OR FAILURE TO PROVIDE THE SERVICES, PRODUCTS, OR DEVICES.  ZOOMBAK SHALL NOT BE LIABLE FOR ANY ACT OR OMISSION OF ANY THIRD PARTY THAT FURNISHES ANY PART OF THE SERVICES, OR THAT FURNISHES A PRODUCT OR DEVICE USED IN CONNECTION WITH THE SERVICES, INCLUDING BUT NOT LIMITED TO THIRD PARTIES PARTICIPATING IN OFFERS MADE THROUGH ZOOMBAK.  ZOOMBAK SHALL NOT BE LIABLE FOR ANY DAMAGES THAT RESULT FROM ANY SERVICE PROVIDED BY, OR PRODUCT OR DEVICE MANUFACTURED BY, THIRD PARTIES.

12.2.    NOTWITHSTANDING ANY DAMAGES THAT CUSTOMER MAY SUFFER FOR ANY REASON, THE ENTIRE LIABILITY OF ZOOMBAK AND ITS SUPPLIERS AND LICENSORS UNDER ANY PROVISION OF THIS AGREEMENT OR IN CONNECTION WITH THE SERVICES OR DEVICES, AND CUSTOMER’S EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING, SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE SERVICES DURING THE 12 MONTHS PRIOR TO THE EVENT THAT CUSTOMER CLAIMS CAUSED THE DAMAGES.  

12.3.    Zoombak shall not be liable for any damages Customer or others may incur as a result of Customer’s loss, disclosure, or a third party’s use of Customer’s Security Information, regardless of whether such disclosure or use is with or without Customer’s knowledge or consent.

12.4.    In no event shall Zoombak have any liability for any damages arising out of or in connection with:  (a) Customer’s own actions, negligence, or willful misconduct, (b) acts or omissions of any third party, including but not limited to any telecommunications service provider, or (c) events or causes beyond Zoombak’s reasonable control, including but not limited to acts of God, war, terrorism, criminal or tortious acts by third parties, riots, or natural disasters.

12.5.    The limitations, exclusions, and disclaimers set forth in this Agreement shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.

13.    Customer Agrees to Indemnify Zoombak.

13.1.    Customer agrees to defend, to indemnify, and to hold harmless Zoombak and its affiliates, suppliers and licensors (and each entities’ respective officers, directors and employees) 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 or relating to Customer’s use of the Services and a Device or to Customer’s inability to use the Services or a Device.

13.2.    Customer’s agreement to defend, to indemnify, and to hold Zoombak harmless applies whether a claim against Zoombak is based in contract or tort (including strict liability), and regardless of the form of action, including but not limited to any claims resulting directly or indirectly from Customer’s intentional or inadvertent misrepresentation of: (a) Customer’s identity; (b) the identity of persons authorized to access Location Information; (c) Customer’s right to monitor the location of the pet, vehicle, or item Customer chooses to track using the Services; or (d) Customer’s relationship to any of these persons or claims resulting from or relating to Customer’s breach of this Agreement.  

14.    Process for Returning Devices.

Devices purchased directly from Zoombak may be returned for a refund of the cost of the Device within 30 days of purchase, subject to the terms of Zoombak’s 30-Day Risk-Free Guarantee.  The Guarantee is available at http://www.zoombak.com/return-policy/.

15.    If a Device Is Lost or Stolen.

15.1.    If a Device is lost or stolen, Customer is responsible for charges incurred until Customer notifies Zoombak of the loss.

15.2.    Once Customer informs Zoombak that a Device has been lost or stolen, Zoombak will suspend Customer’s account. After Customer purchases a new Device, any money left in Customer’s account will be transferred to a new account.  If Customer decides to terminate the account, Customer’s registered credit card will be charged in the amount of the termination fee stated above.

16.    Customer May Not Export Devices or Software.

Customer shall comply with all trade regulations and export control laws, both domestic and foreign.  Devices, software and any underlying information accessed or transferred using the Services may be subject to U.S. export controls, including the Export Administration Act (50 U.S.C. § 2401, et seq.) and the Export Administration Regulations (50 C.F.R. § 730-774), as well as the import regulations of other countries.  Except as authorized by Zoombak and the U.S. export control laws, Customer agrees not to export or re-export any Device or software to any foreign country.  Any information transferred by Customer using the Services to any foreign country, entity, or person must comply with the U.S. Export Administration Act and the Export Administration Regulations.

17.    Zoombak and Its Licensors Own All Intellectual Property Rights.

17.1.    Zoombak grants Customer, during the term of this Agreement, a revocable, non-transferable and non-exclusive license to use any software provided by Zoombak (the “Software”) solely in connection with Customer’s use of the Services and in a manner that is consistent with this Agreement.  

17.2.    Customer shall not (a) distribute, rent, loan, lease, sell, sublicense, or otherwise transfer all or part of the Software, any access to it, or any rights granted under this Agreement to any other person; (b) reverse engineer, decompile, or disassemble the Software; (c) modify, translate, adapt, arrange, or create derivative works based on the Software for any purpose; (d) use the Software outside of the country of purchase or in a manner inconsistent with or in violation of this Agreement.  

17.3.    The Software is protected by copyright, trade secret and other intellectual property laws and treaties and will remain the exclusive property of Zoombak or its suppliers or licensors.  All rights not expressly granted in this Agreement are reserved by Zoombak.  

17.4.    The "Zoombak" name and logo and all other trademarks, service marks, and trade names used in connection with the Services are owned by Zoombak, Inc. or its licensors and may not be used by Customer without the written consent of Zoombak.

18.    Zoombak May Use Customer Information.

18.1.    Zoombak handles Customer information in a manner consistent with federal customer privacy laws and the Privacy Policy.  Except as contemplated by the Privacy Policy and as necessary to deliver the Services, Zoombak shall not intentionally share Personal Information or Location Information obtained through Zoombak’s Services to third parties not related to Zoombak without Customer’s written permission.  As described in the Privacy Policy, Zoombak may, from time to time, use Customer information to market Zoombak’s and its affiliates’ services to Customer.

18.2.    Customer agrees that any and all information provided by Customer in the course of using the Services becomes the property of Zoombak.  Zoombak may use this information for any lawful purpose, subject to the Privacy Policy. 

18.3.    Customer acknowledges that transmissions to Zoombak from a Device, transmissions from Zoombak to Customer, and Customer’s communications to Zoombak may be intercepted and read by others.  Customer therefore acknowledges that the Services are not confidential.

18.4.    To comply with appropriate legal process, Zoombak may disclose any Customer information or content to law enforcement authorities, including Customer’s name, account history, account information or other transmission data requested by law enforcement.  Zoombak may also disclose any Customer content to third parties as is necessary to respond to claims that any content violates the rights of third parties or to protect the rights and property of Zoombak.

19.    Customer’s Use of Content and Services Is Restricted.

19.1.    Zoombak may send messages, data, or other information (“Content”) to Customer as part of the Services.  All Content is owned by Zoombak.  Customer shall not upload or transmit Content to public places.  Customer is responsible for any unauthorized use of the Content. 

19.2.    Customer shall not upload, post or transmit to or distribute or otherwise publish through the Services any materials that (a) restrict or inhibit any other customer from using the Services, (b) are unlawful, threatening, harassing, abusive, libelous, defamatory, obscene, vulgar, offensive, pornographic, profane, sexually explicit or indecent, (c) constitute or encourage conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any local, state, national or international law, (d) violate, plagiarize, or infringe the rights of third parties, including copyright, trademark, patent, rights of privacy or publicity or any other proprietary rights, (e) contain any viruses, Trojan horses, worms, time bombs, cancelbots, or other harmful components that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data, or information, (f) contain advertising of any kind, or (g) constitute or contain false or misleading indications of origin or statements of fact.

19.3.    If Zoombak determines in its sole discretion that Customer is using an excessive amount of Zoombak’s network resources, Zoombak may adjust, suspend or terminate the Services Zoombak provides to Customer at any time, without notice.

19.4.    Zoombak reserves the right to limit, remove, or delete any information that Customer uploads, downloads, posts, distributes, or otherwise transmits through the Services for any reason at any time.

20.    Additional Terms and Conditions.

20.1.    This Agreement, including the Privacy Policy incorporated in the Agreement, supersedes all oral or written communications and understandings between Customer and Zoombak with respect to the Services and the terms under which the Services are offered and provided. 

20.2.    Any cause of action Customer may have with respect to the use of the Services must be commenced within one (1) year after the claim or cause of action arises. 

20.3.    Both parties waive the right to a jury trial in any dispute arising out of this Agreement or the Services. 

20.4.    If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion of the Agreement, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to give effect to the intent of the Agreement, and the remainder of this Agreement shall continue in full force and effect.

20.5.    The headings contained in this Agreement are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.

20.6.    Customer may not assign his or her rights or delegate his or her obligations under this Agreement.
 
20.7.    There shall be no third party beneficiaries under this Agreement, except for Zoombak’s affiliates, suppliers, and licensors or as required by law. 

20.8.    Any legal action concerning this Agreement or the Services shall be interpreted under the laws of the Commonwealth of Pennsylvania, excluding the Commonwealth’s choice of law rules. 

20.9.    Any dispute arising from or relating to this Agreement, regardless of theory of action, shall be resolved exclusively in the state and federal courts of the Commonwealth of Pennsylvania.

20.10.    Use of the Services is unauthorized in any jurisdiction that does not give effect to all provisions of this Agreement, including without limitation this paragraph. 

20.11.    The failure of Zoombak to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. 

21.    Instructions & Terms Regarding Receiving Zoombak Location Information Via SMS.

21.1.    Those Customers who choose to receive Location Information and Device alerts via Short Message Service (“SMS”) to their mobile phones must review and agree to these additional terms.  

21.2.    The Zoombak.com website features a box that a Customer must check to if Customer was to receive Location Information and Device alerts via SMS.

21.3.    Customers must enter the mobile phone number of their mobile phone where prompted on the Zoombak.com website.  This number is for the mobile phone to which the Customer wants to have mobile notifications sent. This process enables the Customer to receive SMS notifications.

21.4.    All terms of the Zoombak Customer Agreement apply regarding Zoombak’s use of SMS messages to send Location Information and Device alerts to Customers.

21.5.    Once a Customer has registered at Zoombak.com to receive Location Information and device alerts via SMS, he or she can query the location of his or her  Zoombak device(s) using the following SMS commands:

21.5.1.    Customer texts the command FIND (upper or lower case) to the common short code 96225.

21.5.2.    A response message is sent to the Customer’s mobile phone which reads as follows:  “To locate your Zoombak, please send your <PIN>, <DEVICE NAME> to shortcode 96225 now.  Device name is from Zoombak product registration.”

21.5.3.    The Customer then sends in this information as requested above, for example:  “1234, FIDO” and sends this message to 96225.

21.5.4.    Zoombak will then send an SMS to the Customer with the Location Information included, for example:  “Fido is located at 134 Chestnut Street.”  (sample location shown)

21.6.    To receive assistance regarding receiving Zoombak Location Information and Device alerts via SMS:

21.6.1.    Customer can go to Zoombak.com to read FAQ’s of the Terms and Conditions, or

21.6.2.    Customer can contact Zoombak customer service at 1-866-989-7768 toll free, or

21.6.3.    Customer can send an email to support@zoombak.com, or

21.6.4.    Customer can also text HELP to the short code 96225.  Zoombak will then send an SMS to the Customer that reads: “This is a Zoombak standard-rate device locator service. Visit http://www.zoombak.com for help or send request to support@zoombak.com.  To stop service type STOP.”

21.7.    To stop receiving SMS messages from the Zoombak Location Information service and opt-out of the service:

21.7.1.    Customer may text STOP via their mobile phone to the short code 96225.  Zoombak will then immediately unsubscribe the Customer from the SMS Location Information service.

21.7.2.    An SMS message will be sent back to the Customer from Zoombak which reads: “You have opted out of the Zoombak mobile notification service.  For help contact support@zoombak.com or call 1-866-989-7768.”

21.7.3.    The Customer will not receive any additional SMS messages from the Zoombak Location Information service until he or she re-registers for SMS service at Zoombak.com.  See sections 21.1-21.4 above for registration details.

21.8.    Fees and Rates for Zoombak Location Information SMS Messaging:"

21.8.1.    Customers must pay their mobile phone service carriers for SMS messages received from Zoombak pursuant to the terms of their mobile phone agreements with their mobile phone service provider.  Zoombak Customers should check with their mobile phone service providers for the SMS rates their mobile phone carrier with charge.

21.8.2.    Zoombak does not charge any additional amount to Zoombak Customers who choose to receive Location Information and device alerts through SMS messages.

21.9.    Mobile Phone Service Providers

21.9.1.    The Zoombak Location Information notification service via SMS is available only to authorized Zoombak Customers who have a registered, active mobile phone.

21.9.2.    The SMS service is available on most mobile phones from most U.S. mobile phone service providers (Verizon, T-Mobile, AT&T, Sprint, Alltel).  If the SMS service does not work on your phone, please contact Zoombak customer care at support@zoombak.com.  

Copyright © 2008, Zoombak, Inc.