Terms and Conditions of Use for Zephyr™, Powered by Modus™
Last updated: July 13, 2017
1. Acceptance of Terms
Your use of Zephyr, Powered by Modus, is expressly conditioned on your acceptance of these terms and conditions (“Terms and Conditions”), which shall be deemed accepted by using and accessing Modus’ software (“Zephyr”), hardware and/or service(s), and you agree to comply with and be bound by the following terms and conditions of use. If you do not agree with any part of these Terms and Conditions, you should not use Zephyr.
Welcome to Modus Group, LLC (“Modus” or “we” or “us” or “our”). We provide hardware, software and services, including telematics services, to you (“your” or “Customer”) through mobile applications, web applications and via other channels, subject to this Terms and Conditions of Use agreement (“Agreement”). This website (“site”) is maintained as a service to our customers. By using and accessing this site and Modus software, hardware and/or service(s), you agree to comply with and be bound by the following terms and conditions of use. Specifically, you agree this is a contract between you and Modus, even though it is not printed on paper and signed by you and Modus. Therefore, please review these terms and conditions carefully, and from time to time, as this Agreement may be modified at any time by Modus. If we change or modify this Agreement, we will post the changes or modifications and the date they were changed on this page. Any such changes will become effective immediately. If you do not agree to the terms and conditions of this Agreement, you should not use this site, hardware, software and/or services, as your continued use of the hardware, software and services indicates your continued and unconditional acceptance of this Agreement and its terms and conditions.
3. Description of Service
The Zephyr services include (a) the site, (b) Modus’ telematics (including hardware) and related services, and (c) all mobile applications and other software, data, reports, text, images, and other content made available through any of the foregoing. The hardware means device(s) (“Device” or “Zephyr Device” or “Hardware” or “Zephyr Hardware”) provided by Modus, including devices that may be connected to your motor vehicle, or paired with your smartphone, in connection with the services. Any updates, upgrades, and new features added to or augmenting the software, hardware or service are also subject to this Terms and Conditions Agreement.
You agree we may provide you updates and/or upgrades without your further consent or notice to you. You agree to access the service provided by Modus only through the interface provided to you by Modus and not by any other means. The software, hardware and service may work in conjunction with a mobile device. By using the services in connection with your mobile device, you agree that we may communicate with you regarding Modus and other entities by various electronic means to your mobile device for the purpose of providing the services and obtaining information about your usage of the services. Therefore, if you change your account contact information, including deactivating or changing your mobile telephone number, you agree to promptly and accurately forward your updated contact information to Modus.
Whereas certain services and/or terms may be subject to a processing fee, this processing fee will pertain only to the act of Modus entering the Customer information, provided by Customer during sign-up, into the system as well as includes provisioning and packaging of any hardware, if applicable, and shipping out said hardware to the address provided by Customer during the sign-up process. This fee does not ensure delivery of any hardware devices, and is non-returnable and non-refundable.
The term of this Agreement is month-to-month. The term commences on the date you submit an order for Modus software, hardware and/or service (“Effective Date”) and shall continue for the term agreed to with an automatic renewal thereafter for one (1) month. No service or term (“period”) of this agreement will be less than a full (whole) monthly period on a calendar year basis (twelve whole periods per year).
4. About Modus
Modus Group, LLC (“Modus” or “we” or “us” or “our”) provides hardware, software and services, including telematics services, to You (“your” or “Customer”) through mobile applications, web applications and via other channels, subject to this Terms and Conditions of Use agreement. As one of these services, Modus offers a vehicle and driving monitoring solution, called Zephyr, in which you may use one of three device options:
- Bluetooth™ iBeacon in conjunction with Smartphone Application
- Cellular-based on-board diagnostic (OBD) hardware dongle
- Hardwired cellular-based telematics hardware requiring professional installation
These devices contain GPS technology and record information about how and when the vehicle is driven, including but not limited to: speed, mileage, time of day, sudden acceleration, hard braking, aggressive cornering, road type (highway versus city streets), and aggressive lane changing. The device also tracks Vehicle Identification Number, G-force, as well as when the device is plugged into and unplugged from the vehicle, or in the case of the Bluetooth iBeacon, will know when it is present and paired with the smartphone. The devices and smartphone application transmit data wirelessly to and from Modus.
Users should also download the Zephyr application onto the driver(s) smartphone that will sync with the hardware devices to track distracted driving and enable driver(s) to view and monitor their driving behavior. Please note that using your mobile device to access or use software, hardware or services may also trigger your wireless service carrier’s standard charges, data rates and other fees for which Modus is not responsible.
5. Ownership – Property of Modus
All content included on Modus’ website, software, hardware or service(s) is and shall remain the property of Modus, its affiliates or its content suppliers and is protected under applicable copyright, patent, trademark, and other proprietary rights. You may not reverse engineer, disassemble, decompile, alter, duplicate, translate, make copies, redistribute, or create derivative works from the device or firmware, or otherwise attempt to derive the source code of the firmware, except to the extent allowed under applicable law. If applicable law permits such activities, any information discovered as a result of these activities must be promptly disclosed to Modus and is deemed to be the confidential and proprietary information of Modus. Modus, it affiliates or its content suppliers will not grant you any rights or interest in the content of this site or the software, hardware or service or content contained therein without a separate written contract amending the terms of this Agreement.
6. Intended Audience
All Modus hardware, software, services, websites, and applications are intended for adults only. They are not intended for anyone under legal driving age, which in most U.S. states is 16 years old and no younger than 14 years old.
7. LIMITED WARRANTY
FULL INFORMATION ABOUT THE LIMITED WARRANTY IS LOCATED AT WWW.MOD.US/WARRANTY AND IN THE DOCUMENTATION WE PROVIDE WITH THE PRODUCT. BELOW INFORMATION IS A SUBSET OF SAID LIMITED WARRANTY.
WE WARRANTY THAT DURING THE WARRANTY PERIOD, THE PRODUCT WILL BE FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP.
SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
OUR RESPONSIBILITY FOR DEFECTIVE GOODS IS LIMITED TO REPAIR OR REPLACEMENT AS DESCRIBED IN THE LIMITED WARRANTY STATEMENT.
9. Acknowledgement / Vehicle Owner Consent
By registering for service with Modus, you represent that you have the consent of the registered owner of each vehicle in which a device will be used to (a) provide information collected by the device to Modus, and (b) permit us to retain and use the information as described in these Terms. Once the vehicle information has sent to us, the recorded information will be erased from the device. Modus will retain information collected or derived from the device indefinitely.
The Zephyr devices use a certain amount of current from the battery even with the vehicle is not turned on. Care should be taken in using the device in vehicles that have old or weak batteries, or that may go extended periods without being started.
You shall not use our software, hardware or services in or with motor vehicles with a modified engine, modified electronic control systems, or cars of any make, model or year that we do not support. Such use shall be deemed nonconforming and inappropriate use (“misuse”) of the software, hardware or services and therefore in violation of this Agreement. Modus will not be liable for your nonconforming and inappropriate use of the software, hardware or services.
10. Modus Software Applications Compatible with Apple Products
Modus offers software applications that are intended to be operated with many platforms, including in connection with products by or made available by Apple Inc. (“Apple”). Modus, not Apple, is responsible for the software applications provided by Modus for use with Apple products (“Apple-Compatible Software”).
Modus and you acknowledge that this Agreement is made between you and Modus only; this Agreement is not between Modus and Apple or you and Apple. Therefore, Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Compatible Software. You may not use or misuse the Apple-Compatible Software applications in violation or in a manner inconsistent and/or in violation of the Modus instructions or the Apple App Store Terms of Service.
Further, Apple is not responsible for any product warranties, whether express or implied. Modus Apple-Compatible Software is Modus’ sole responsibility, to the extent it cannot be disclaimed under applicable law, including without limitation, Modus’ responsibility and possibility for third party claims and intellectual property infringement claims of Apple-Compatible software. In the event of a third party claim, Modus, not Apple, will be responsible for the defense of any such claim.
You will be required to select a method of payment and provide Modus information regarding your credit card or other payment method (each a “payment instrument”) for all Modus software, hardware or service fees provided to you unless payment terms are otherwise provided in another agreement with a third party. You represent and warrant to Modus that your information regarding your payment and mobile device information (including without limitation your mobile device number) is accurate, true and current and that you are authorized to use the payment instrument you have chosen to use. If any of this information changes, you agree to provide Modus your updated information promptly and without delay. You also agree to pay Modus the amount that is specified in your payment plan.
If your payment plan involves subscription and recurring payments, you authorize Modus to bill your payment instrument in advance and on a periodic basis, as well as any charges that may accumulate. You agree that there will be no refunds for partially used periods (as described in the Description of Service above).
Modus’ prices for software, hardware and/or services may change, upon which time Modus will provide you with advance notice of such change on this page or by another method of notification. As described above in this Agreement, your continued access and use of the software, hardware and/or service after a price change serves as your unconditional agreement to pay the new, modified amount.
12. Modus Data Privacy
- Information about your use of the Portal(s);
- Information that you provide for the purpose of registering for services with the Portal(s) (including user name, password, frequency of use);
- Information about your vehicle, including its performance and location;
- Information about your driving behavior;
- Information that you provide for the purposes of subscribing for services; and
- Any other information that you send to Modus
Modus may use the data we collect to:
- Administer the Portal;
- Personalize the Portal for you;
- Publish non-identifiable statistical information about you aggregated with other users on the Portal;
- Enable your access to, and use of, the Portal services;
- Supply you with services that you purchase;
- Send you a statements and invoices;
- Collect payment from you; and
- Send you marketing communications.
In some instances, driving and vehicle data collected by Modus will be shared with Modus partners, including by not limited to Insurance Carriers.
13. Account Information
In order to access the Zephyr Portal, you must log in with the username and password that was provided by email upon enrollment in the program. You hereby represent and warrant that the information you provide to Modus upon purchasing a subscription, and at all other times, will be true, accurate, current, and complete. You also hereby represent and warrant that you will ensure that this information is kept accurate and up to date at all times.
Your account is personal to you, and you may not share your account information with, or allow access to your account by, any third party. As you will be responsible for all the activity that occurs under your access credentials, you should preserve the confidentiality of your username and password. If you have any reason to believe that your account information had been compromised or that your account has been accessed by a third party, you agree to immediately notify Modus by calling (714) 468-5122. You are solely responsible for your own losses or losses incurred by Modus and others (including other users) due to any unauthorized use of your account that occur prior to notifying Modus that your account has been compromised.
We will periodically send you reminders and other information through the Application, Portal, by email and/or phone while you hold an account with Modus.
16. Use of the Device on Different Vehicles
The rules for transferring the device are as follows:
The device may be transferred to a vehicle replacing an existing vehicle on the account that is registered with Modus. You must update the vehicle information on the Zephyr Portal. However, the new vehicle must be compatible with the hardware device. If the new vehicle is not compatible with the device, the device must be returned to Modus and a request must be made for a compatible device if you want to monitor and track the new vehicle on your account. (See “Returning the Device” section.)
17. Zephyr Service Auto-Renewal & Termination
Your account will auto-renew at the end of your monthly period. If you have reached the end of your contract term and do not wish to renew, you must send Modus written notification of termination of the contract at least thirty (30) days prior to the last day of your contract term by certified mail or to firstname.lastname@example.org.
17b. Opt-Out 30 Day Trial Period
For new accounts, Modus offers customers the ability to cancel Zephyr services within 30 days of delivery of the devices to the customer, if they are not completely satisfied. Requests to cancel must be made by the account holder through the Zephyr Support department by email to email@example.com or by calling (714) 468-5122.The Support Representative will suspend the account and issue a return shipping label for the devices.
For a customer to be issued a refund, minus the non-refundable account set up fee, they must return the Zephyr hardware in new, working condition. A refund will not be issued until the Operations Department can verify the condition of the returned devices and this process may take up to 60 days from receipt.
If the devices are not returned and in new, working condition, Modus reserves the right to charge the customer for the cost of replacing the device(s).
This 30-day trial period is not available for existing accounts who want to add additional devices to their account.
To cancel your service after the 30-day trial period ends, you must provide Modus with written notification of your desire to terminate the contract to firstname.lastname@example.org.
Modus may terminate this Agreement at any time, with or without notice, for any reason. Termination of this Agreement or use of the site, software, hardware or service will not relieve you from your financial obligation for services rendered by Modus. Modus may modify, discontinue, suspend or terminate your account or any software, hardware or service at any time and for any reason, including if Modus believes, whether in its sole discretion in in conjunction with its affiliates, you have violated this Agreement. Modus shall not be liable to you or any third party for any modification, discontinuance, suspension or termination or your account.
LICENSE TO USE THE PORTAL
18. Use of Materials
Upon your agreement to these Terms, which shall be deemed accepted by your use of the Zephyr device and application, Modus grants you the right to view the Portal and to download information from this Portal for your personal, non-commercial use. You are not authorized to use the materials for any other purposes. If you do download or otherwise reproduce the material from this Portal, you must reproduce all Modus’ proprietary markings, such as copyright and trademark notices, in the same form and manner as the original.
19. Use of Information
Modus uses security measures to protect your personal information. However, Modus cannot promise that its security measures will never subjected to eavesdroppers, hackers, attacks, viruses, or interceptors, and any lack of privacy or security. You agree that use of this site and the software, hardware and/or services are at your own risk, including information and data you upload or provide when using this site and/or the software, hardware or services.
20. No Harmful Use
In exchange for our permission to use this Portal, you agree that you will not do anything to harm the functioning or content of the Portal. You will not attempt to upload, insert, or change any information or image to or on this Portal, except for providing information where prompted by the Portal. You agree that you will not take any action that imposes and unreasonable or disproportionately large load on the Portal or interferes with its functioning. You also agree that you will not use any false identity when interacting with the Portal, or do anything that is fraudulent, obscene, libelous or legally prohibited.
You may not use any “deep-link,””page-scrape,””robot,””spider” or any other automatic device, program, algorithm or methodology, or any similar or equivalent manual process to access, acquire, copy or monitor any portion of the Portal or any of its content, or in any way reproduce or circumvent the navigational structure or presentation of the Portal.
Modus, Modus Group, Modus Solutions, Zephyr, ModusGo, Powered by Modus, various logos, and others are company names, trademarks or registered trademarks of Modus. Other product, service and company names mentioned on this site may be trademarks or other property interests of their respective owners. You are not granted the right or license to use any Modus trademarks or service marks or those of any third party in connection with the software, hardware or service.
22. Copyrights and Copyright Agent
You agree not to reproduce, copy, create derivative works, sell or resell, or otherwise transfer the software, hardware or services, in whole or in part, for any commercial purposes, including use or misuse of same. If you believe your work has been copied in a way that constitutes copyright infringement or other intellectual property infringement, please provide a notice containing all of the following information to our Copyright Agent:
(a) An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
(b) A description of the copyrighted work that you claim has been infringed;
(c) A description of where the material that you claim is infringing is located on the Site;
(d) Your address, telephone number, and e-mail address;
(e) A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
(f) A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Our Copyright Agent for Notice of claims of copyright infringement on the site can be reached as follows:
Modus Support / ATTN. Copyright Agent
Modus Group, LLC
2134 Main Street, Suite 120
Huntington Beach, CA 92648
YOU AGREE THAT YOU WILL DEFEND, INDEMNIFY, AND HOLD HARMLESS MODUS, ITS CUSTOMERS, SUPPLIERS, AND JOINT VENTURE PARTNERS AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, CONTRACTORS, VENDORS, ASSIGNEES, AND AGENTS FOR AN AGAINST ANY COSTS, CLAIMS, DAMAGES, LOSSES, OR OTHER LIABILITIES ARISING FORM YOUR USE OF TELMATICS HARDWARE, ZEPHYR APPLICATION, OR THE PORTAL IN BREACH OF THESE TERMSOR IN VIOLATION OF THE LAW. IF MODUS TAKES ANY LEGAL ACTION AGAINST YOU AS A RESULT OF YOUR VIOLATION OF THESE TERMS, YOU AGREE THAT YOU WILL BE RESPONSIBLE FOR AND WILL PAY ALL OF MODUS’ LEGAL FEES IN CONNECTION WITH SUCH ACTION.
24. Modus’ Remedies
In addition to any other remedies it may have at law, Modus may, in its sole discretion and without notice, terminate your access to the Zephyr Application or Zephyr Portal and/or block your future access to the Application and Portal, if we determine or suspect that you have violated the terms of this Agreement.
25. No Damages
We attempt to provide timely and accurate information on the Portal. However, because we may have made inadvertent errors and because information may become inaccurate over time, WE CANNOT GUATANTEE THE ACCURACY, TIMELINESS, OR COMPLETENESS OF THE INFORMATION ON THE INTERNET GENERALLY. THE MATERIALS AND INFORMATION ON THE PORTAL ARE PROVIDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FREEDOM FROM ERRORS, VIRUSES, BUGS, OR OTHER HARMFUL COMPONENTS.
26. LIMITATION OF LIABILITY
YOU AGREE THAT MODUS’ LIABILITY FOR DAMAGES CAUSED BY THE DEVICE SHALL BE LIMITED TO PROPERTY DAMAGE TO THE VEHICLE IN WHICH IT IS PLUGGED IN. FURTHER, MODUS SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT
LIMITATION, DAMGES FOR THE BODILY INJURY OR DAMAGE TO OTHER VEHICLES OR PROPERTY, CAUSED BY OR RESULTING FROM THE DEVICE HAVING BEEN PLUGGED INTO THE VEHICLE.
IN NO EVENT WILL MODUS, ITS OFFICERS OR DIRECTORS BE LIABLE TO ANY PARTY FOR ANY DIRECT, INDIRECT, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH (I) YOUR USE OF THE SERVICE, PORTAL DEVICE, CONTENT, THIRD PARTY MATERIALS; OR (II) THE USE OR ACCESS OF OR INABILITY TO USE OR ACCESS THE SERVICE OR ANY CONTECT. WHETHER BASED IN TORT, CONTRACT OR OTHER LEGAL THEORY, EVEN IF MODUS IS EXPRESSLY ADVISED OF THE POSSIBLITY OF SUCH DAMGAGES. IN NO EVENT WILL MODUS, ITS OFFICERS OR DIRECTORS BE LIABLE IN THE AGGREGATE FOR ANY DAMAGES INCURRED GREATER THAT ONE HUNDRED DOLLARS ($100).
Modus reserves the right to change the Zephyr services, application, the Portal, including these Terms, without notice, at any time. Modus reserves the right to delete any materials or information posted on the Portal by users. That being said, Modus does not guarantee that it will change or update the Portal or that all information on the Portal will be up to date at any particular time. Continued participation by you will constitute your acceptance of any revisions to these Terms.
28. GOVERNING LAW
These Terms will be governed by and construed in accordance with the laws of the State of California, without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any other jurisdiction. Any judicial action or proceeding between the parties relating to these Terms must be brought in the courts of the State of California or the United States District Court for Orange County.
Notice for California Customers and End-Users Under California Civil Code Section 1789.3, users of the software, hardware or other electronic commercial service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. Additionally, you may contact us at the email or address provided on this page.
29. Compliance with Laws
You agree to comply with all applicable laws regarding your use of the site, software, hardware, and service. You further agree that any and all information provided by you is truthful and accurate to the best of your knowledge. You shall also comply with any codes of conduct, policies or other notices Modus provides to you or publishes (including posting on this site) in connection with this site and the software, hardware and services.
You represent and warrant that you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country. You represent that you are not listed on any U.S. Government list of prohibited or restricted parties. You further represent that you have not and will not offer, payment, promise to pay, or authorization of the payment of money or anything of value to any person, while knowing that all or a portion of such money or thing of value will be offered, given or promised, directly or indirectly, to a foreign official to influence the foreign official in his or her official capacity, induce the foreign official to act or omit to act in violation of his or her lawful duty, or to secure any improper advantage in business by making payments to foreign government officials.
30. Customer Concerns and Arbitration
If you have a question or concern, simply contacting Modus and explaining your concern can and does result in a quick and easy resolution for most customer concerns. You agree that you must first contact Modus with any concern, dispute, claim, question or disagreement in order to proceed to arbitration.
If for some reason your concern cannot be resolved, you and Modus agree to submit any dispute, claim, question, or disagreement to binding arbitration to be conducted in San Francisco, California before one (1) arbitrator of the American Arbitration Association (AAA) in accordance with its Commercial Arbitration Rules in effect on the date of this Agreement. If you do use arbitration for a concern or other disagreement, you agree to send Modus “notice” of your intent to use arbitration at the address above by US Certified Mail, return receipt request, and clearly label the envelope and notice “NOTICE” in all capital letters.
If the parties are unable to agree upon an arbitrator, then the arbitrator shall be chosen impartially by the AAA in accordance with the rules thereof.
PLEASE NOTE THAT MODUS AND YOU ACKNOWLEDGE AND AGREE THAT BY THIS PROVISION EACH IS WAIVING AND RELINQUISHING ITS RESPECTIVE RIGHT TO A JURY TRIAL IN ANY AND ALL DISPUTES BETWEEN THE PARTIES RELATING TO THIS AGREEMENT. However, please also be aware that you may be entitled to bring issues to the attention of federal, state or local agencies. Arbitration is frequently much faster, less formal and less expensive than a lawsuit. Class arbitrations and class actions are not allowed, and therefore each arbitration will be handled on an individual basis.
If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect.
If any of the provisions of these Terms are held by a court or other tribunal of competent jurisdiction to be void or unenforceable, such provisions shall be limited or eliminated, to the minimum extent necessary and replaced with a valid provision that best embodies the intent of these Terms, so that these Terms shall remain in full force and effect. These Terms constitute the entire and exclusive agreement between you and Modus with regard to you use of the Device and Portal any and all other written or oral agreements or understanding previously existing between you and Modus with respect to such use are hereby superseded and cancelled. Modus’ failure to insist on or enforce strict performance of these Terms shall not be construed as a waiver by Modus of any provision or any right it has to enforce these Terms, nor shall any course of conduct between Modus and you or any other party to be deemed to modify any provision of these Terms.
33. Force Majeure
No party to this Agreement shall be liable to the other party for any failure or delay in fulfilling an obligation hereunder, if said failure or delay is attributable to circumstances beyond its control, including, but not limited to, any fire, power failure, labor dispute or government measure (“Force Majeure”). The parties agree that the deadline for fulfilling the obligation in question shall be extended for a period of time equal to that of the continuance of the Force Majeure. Modus and you, as the case may be, shall each use all commercially reasonable efforts to minimize the effect of the Force Majeure on its performance under this Agreement. Notwithstanding the continuance of an event of Force Majeure, neither party delay performance of its obligations under any circumstances by more than twenty (20) business days, otherwise the other party may terminate this Agreement.
34. Contact Information
If you have any questions, complaints or claims, please contact us by email or post at:
Modus Group, LLC
2134 Main Street, Suite 230
Huntington Beach, CA 92648