NOTE: THESE TERMS CONTAIN A BINDING ARBITRATION PROVISION AND TIME LIMIT ON SUBMITTING CLAIMS THAT AFFECT YOUR RIGHTS
Effective Date: February 1, 2022
The complete subscription agreement including these Terms (the “Agreement”) is made for the purpose of granting you a limited subscription to access and use the Services.
1. Acknowledgment and Acceptance of Terms
We can modify these Terms, change, add or delete Services at any time, in our sole discretion. We will notify you of such change by posting amended terms. You acknowledge and agree that it is your responsibility to review the Terms periodically and to be aware of any modifications. If you continue to use the Services after the Terms have been modified, you agree to be bound by the modified Terms. If you do not agree to be bound by the modified Terms, then you may no longer use the Device or Services, and you will need to have the Device uninstalled.
The Services may contain software that is the sole property of third-parties or is open source software. Such software is provided subject to the terms and conditions of such third-party or under such open source license. By using the Services, you acknowledge and agree that you are bound to these third-party licenses or terms and conditions.
2. Description of Device and Services
The “Device” means the OBD-II device provided to you by Mojio which is designed for use in connection with the Services. The “Services” include (i) any software embedded in the Device, (ii) the Motion by Mojio mobile application (the “App”), including its associated media, online, electronic and printed documentation, and the updates and upgrades that replace or supplement the App, and (iii) any other services made available in connection with the Device or the App.
Your hereby represent that you have (i) examined the Services and found them suitable for your needs, (ii) relied solely upon your own judgment and inspection in determining that the Services are of acceptable quality and fitness for your purpose, (iii) verified that installation and use of the Device and Services do not and will not interfere with or affect any vehicle systems beyond limits acceptable to you, and (iv) verified that installation and use of the Services do and will not void or affect any manufacturer or other applicable warranty.
You understand and agree that we may update or upgrade the Services from time to time and may, in our sole reasonable discretion, at any time with or without notice, modify or discontinue your existing Services. You also agree and consent that we may download and install updates designed to improve, enhance or further develop the Services, without any notice, automatically through the Services or over-the-air. Such updates may take the form of bug fixes, enhanced functions, modified or new software modules or completely new versions. You acknowledge and agree that any obligation we may have to support any version of the Software or the App may be ended upon the availability to you of any update, upgrade or implementation of additional features. Any new features, updates or upgrades added to the Services shall be subject to the Terms.
We have no obligation or liability to you if you tamper with or uninstall the Device. Having a Device not properly installed or plugged into the OBD-II port of your vehicle may cause the Services to function improperly, erratically or not at all. You are responsible for carefully reading and following instructions provided with the Device.
You understand and agree that the Services are provided in part through systems that we do not own or control, including but not limited to the Internet, mobile telephone carriers and GPS location providers. You further understand and agree that we have no control over such third-party providers, and we have no liability in case of reduced or lost functionality, delays or disruptions due to interruptions, errors or other faults of such third-party providers.
The Services do not support every make and model vehicle. Before using the Services, please ensure that your vehicle(s) is (are) supported by contacting Mojio.
As part of the Services we provide, you may (if enabled) receive push notifications, text messages, alerts, emails, or other types of messages directly sent to you outside or inside the App (“Notifications”). You have control over Notifications settings and can opt in or out of these Notifications through the Services (with the exception of infrequent, important service announcements, administrative messages, and notifications associated with part of the Services including, but not limited to, emergency or crash notifications). Please be aware that third party messaging fees may occur for some of the Notifications depending on the message plan you have with your wireless carrier, for which Mojio will not be responsible.
3. Limited License Grant
Provided that you comply with these Terms, you are granted a non-exclusive, non-transferable, limited, revocable license, without the right to assign or sublicense, to access and use the Services solely for the purposes set forth in and subject to these Terms. Except for the license expressly granted hereby, no other rights or licenses are granted to you, either express or implied, including, without limitation, any intellectual property rights of Mojio or our suppliers or licensors.
We will provide you with non-exclusive, non-transferable, limited, revocable access to the Services via a telecommunications network (i.e. “Internet” access) for your use solely in conjunction with your use of the Services pursuant to this agreement. By accessing, viewing or otherwise using the Services, you acknowledge reading, understanding and agreeing with all of the provisions of these Terms.
You shall be responsible for the provision and maintenance of all required software and equipment (including but not limited to portable or mobile devices) and Internet connectivity at your location(s), and shall comply with all reasonable requests by us to provide access to such information, materials, personnel and equipment as we may deem necessary or advisable.
We will only accept requests from you (or from someone we believe is you, or someone with your authorization) to use, activate, cancel, change, reactivate or transfer the Services. You agree that we can assume that anyone who provides your registration information is authorized to act on your behalf, and that we shall have no responsibility or liability for anything that may arise from our providing any services to or acting upon instructions from any such individual, even if such individual is not, in fact, authorized by you to use the Services or your account. You should notify us immediately of any breach of security or unauthorized use of your Services or your account.
This license is effective until terminated. Your rights under this license shall terminate immediately and automatically without any notice if you fail to comply with any provision of the Terms. In the event of termination for any reason, you shall immediately cease all use of the Services and have the Device uninstalled from your vehicle at your own expense. Termination or expiration shall not relieve you from any liability arising from any breach of the Terms.
You acknowledge and agree that it is your responsibility to secure and maintain all necessary and advisable insurance coverages related to the use of the Services, and you will not hold Mojio responsible for any claims due to injury, loss or damage whatsoever or however caused.
4. Registration and Termination
In order to access and use the Services, you will need to set up a separate account and password by completing our mobile App registration process, which requests certain information and data (“Registration Data”). By registering, you agree to provide and maintain true, accurate, current and complete Registration Data. You should ensure that your account password or log-in credentials are kept confidential at all times. You are responsible for all activities that occur under your account and your password. You agree to notify us immediately of any unauthorized use of your account or password or any other breach of security, and you shall be responsible for any losses arising out of the unauthorized use of your account. We, in our sole discretion, may require changes to your account information at any time for any reason.
If you provide any Registration Data that is untrue, inaccurate or incomplete, or if we have reasonable grounds to suspect that such Registration Data is untrue, inaccurate or incomplete, we have the right to suspend or terminate your account and to refuse any and all current or future use of or access to the Services by you.
We can decide to suspend or terminate the Services without warning, or issue a warning, at any time for any reason in our discretion, including for network or system maintenance, improvement, congestion or failure, or if we suspect your Services are being used for any unauthorized or inappropriate purpose, as a result of your breach of these Terms or for reasons unrelated to you or your account with us. If suspension or termination of the Services occurs for any reason, you acknowledge and agree that you will not be able to access the Services, including the emergency services.
You may terminate your Agreement with Mojio and cancel the Services at any time by deleting your account and by uninstalling the Device from your vehicle. Any Fees already paid are non-refundable and you will still be liable to pay the Fees for any ongoing subscriptions.
Without limiting other remedies, we reserve the right, in our sole discretion, to discontinue, suspend, terminate or block your use of and/or access to the Services (a) upon any breach of this Agreement by you at any time, or (b) in the event that you use the Services in any way that would cause us legal liability or disrupt other’s use of Services. During any such cessation of services, we shall be relieved of all performance obligations hereunder until all outstanding invoices are fully paid. Termination for non-payment by Customer of fees due hereunder is in addition and without prejudice to our right to the outstanding amount owed plus interest on amounts not fully paid within thirty (30) days after your receipt of our invoice. A termination of this Agreement shall not limit us from pursuing other remedies available to us, including injunctive relief, nor shall such termination relieve you of your obligation to pay all amounts owing, or yet to be paid, under or pursuant to this Agreement, and this provision shall survive any termination hereof.
Following any termination or suspension of this Agreement, regardless of the reason therefore, your right to use the Device and Services ceases immediately and Mojio shall have no obligation to maintain any of your data and shall not be liable to you for any data being expunged.
All provisions of these Terms which by their nature should survive termination will survive termination.
Mojio is not responsible for any privacy related damages you may suffer as a result of you not notifying Mojio of a sale or transfer of your vehicle.
5. Your responsibilities
You expressly acknowledge and agree that the use of or any reliance upon any information or content available through the Services is solely and completely at your own risk and responsibility. It is your sole responsibility to ensure that you and/or any other occupant of your vehicle follow instructions for use of the Services and exercise good judgment for evaluating whether the use of any of the Services is safe and legal under the circumstances. It is important that you and/or any other occupant of your vehicle ALWAYS EXERCISE CAUTION AND DRIVE APPROPRIATELY TO ROAD CONDITIONS AND IN ACCORDANCE WITH ALL TRAFFIC AND OTHER APPLICABLE LAWS AND REGULATIONS, INCLUDING LAWS REGARDING OPERATION OF SMARTPHONE AND PORTABLE EQUIPMENT WHILE DRIVING. The information provided by the Device and Services is not intended to replace the information provided to you on the road (including, but not limited to, traffic signs, lane closures, police instructions) or through operation of your vehicle. Always drive safely and do not rely on the Device or Services to provide accurate information regarding directions, road conditions or driving hazards.
The Services are provided to you as a convenience. They do not constitute insurance and you should not rely on it to limit the potential for loss, theft or damage to your vehicle and property. You are solely responsible for obtaining and maintaining any and all insurance for your vehicle, any other occupant of your vehicle and your property. No insurance company or insurer will be entitled to any right of subrogation against Mojio.
In order for us to provide the Services, the equipment in your vehicle must be in good condition and your vehicle must have a working electrical system and adequate battery power. The Services may not work if you try to modify the existing equipment and Device, or add any equipment or software to your vehicle that is not compatible with the Services. You are solely responsible for the proper maintenance of your vehicle and its systems (including the Device) and for keeping them in good working order and in compliance with these Terms and all applicable laws.
You hereby represent, acknowledge and agree that you are at least 16 years of age and, if you are registering on behalf of a company or any other legal entity, that you have all authority necessary to bind the company or other legal entity you represent to these Terms.
You have not received or been offered any bribe, kickback, illegal or improper payment, gift, or thing of value from any Mojio personnel or agents in connection with the Agreement, other than reasonable gifts and entertainment provided in the ordinary course of business. If you become aware of any violation of the above restriction, you will promptly notify us at [email protected].
You hereby represent and agree not to use the Services to (a) share or encourage or permit others to share any content that is unlawful, threatening, abusive, tortious, defamatory, libelous, vulgar, obscene, pornographic, lewd, profane, invasive of another’s privacy, hateful, racially, ethnically, or otherwise objectionable, or that you do not have a right to share under any law or contractual or fiduciary relationship or that infringes any intellectual property right or other proprietary right of any party, or that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software, hardware, or telecommunications equipment, (b) stalk, intimidate, and/or harass another or incite others to commit violence, (c) impersonate any person or entity or falsely states or otherwise misrepresents any affiliation with a person or entity, including use of the Services or Device to mislead anyone into believing that they are interacting directly with Mojio or any of the Services, (d) engage in any chain letters, contests, junk email, pyramid schemes, spamming, surveys, or other duplicative or unsolicited messages (commercial or otherwise), (e) use any Mojio domain name as a pseudonymous return email address, (f) access or use the Services in any manner that could damage, disable, overburden or impair any Mojio server or networks connected to any Mojio server, (g) intentionally or unintentionally interfere with or disrupt the Services or violate any laws related to the access to or use of the Services, violate any requirements, procedures, policies, or regulations of networks connected to the Services, or engage in any activity prohibited hereby, (h) disrupt or interfere with the security of, or otherwise cause harm to, or inhibit any other user from using, the Services, Device, systems resources, accounts, passwords, servers or networks connected to or accessible through the Services or any affiliated or linked sites, (i) access or attempt to access any Services that you are not authorized to access or through any means not intentionally made available thereto, (j) market or promote any goods or services for any business purposes (including advertising and making offers to buy or sell goods or services), unless specifically allowed to do so by us, (k) use any data mining, robots or similar data gathering and extraction methods in connection with the Services or Device, (l) defraud, defame or otherwise violate the legal rights (such as rights of privacy and publicity) of others, or (m) collect or store data about other users.
You shall not (i) modify, translate, reverse engineer, decompile, disassemble or otherwise reduce the Services and Device to human perceivable form, or attempt to discover the underlying algorithms or techniques except to the extent that such activities may not be prohibited by law, (ii) copy or create derivative works of the Services and Device, respectively, (iii) distribute or otherwise permit or facilitate the use of the Services and Device by or on behalf of any third party; or (iv) without our express written consent, disclose or divulge to any third party confidential access codes and other information provided to you solely for your own use of the Services and Device.
You are solely responsible for those who use the Services in your vehicle or use your account information, even if you later claim the use was not authorized, and you will be responsible and liable for paying any charges arising from such use, and any damages or expenses incurred by Mojio as a result of such use. Mojio has no obligation to inquire about the authority of anyone using your vehicle or other information that can be used to identify your account to request the Device and Services for your vehicle. In the event of a transfer of ownership of your vehicle, it’s your responsibility to delete your account and uninstall the Device from your vehicle and/or inform the new owner that the Device is installed on the vehicle.
The information contained in the Services and all modifications, enhancements and derivative works, including all related inventions, know-how, images, designs, photographs, writings, methodologies, documentation, reports, specifications, data generated from your use of the Device and Services and analytics relating to such data, Confidential Information, Feedback and all intellectual property rights relating to any of the foregoing (collectively, “Materials”) are the sole property of Mojio or its authorized licensors, sponsored parties and/or content providers and are protected by copyrights, trademarks, trade secrets and other proprietary rights. You are granted permission to display, copy, distribute, download and print Materials solely for the purposes of using the Device and Services and other authorized uses described in these Terms. All copyright laws worldwide apply to use of the Materials and unauthorized use and/or copying is strictly prohibited. Except as may be provided in these Terms, Mojio does not grant any express or implied right in or under any patents, trademarks, copyrights, or trade secret information whatsoever. All trademarks relative to the Services and Materials are the property of Mojio or other rights holders and may not be used without the prior consent of Mojio or the rights holder. “Moj.io”, “Motion”, and all derivations and logos thereof, respectively, are trademarks of Mojio.
Except as set forth in this agreement, you agree: (i) not to alter, copy, change or remove from the Device, Services or Materials any identification or notice, including but not limited to copyright, trademark, proprietary legends or other notices of Mojio, (ii) not to lease, license, re-transmit, rent or sell the Device, Services or Materials, or the right to use and access the Device and Services, (iii) not to copy or imitate part or all of the design, layout or look-and-feel of the Device, Services or Materials, all of which are protected by intellectual property rights; and (iv) that certain Services may be available only upon you having paid an additional subscription fee.
You acknowledge and agree that use of the Device and Services including hyperlinks therein are at your sole risk and that neither Mojio, its affiliates, nor its respective officers, managers, directors, agents, employees, contractors or subcontractors warrant: (i) that they will be uninterrupted, error-free, free of software viruses or other harmful computer code, files or programs, (ii) that data or information obtained from the use of the Device and Services are accurate, complete, secure, current or free of errors, omissions, inaccuracies or outdated information, and/or (c) the reliability of any statement or other information displayed or distributed through the Services.
Mojio reserves the right, in its sole discretion, to correct any such errors or omissions and to make any other changes to the Services, the Devices and to the programs, services or prices (if any) described on the Services from time to time at any time with or without notice.
You grant to Mojio worldwide, perpetual, irrevocable, royalty-free permission to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction, or other feedback, whether orally or in writing, provided by you (collectively, “Feedback”). You agree to assign, and hereby assign, all right, title and interest worldwide in the Feedback, and the related intellectual property rights, to us and agree to assist us, at our expense, in perfecting and enforcing such rights.
All confidential, secret or proprietary information or other material, information or opinions uploaded through the Services or otherwise submitted to Mojio by you (collectively, “Content”) is your sole property and responsibility. You acknowledge that we have the right, but not the obligation, to pre-screen, monitor, review or edit the Content and we are not responsible for, nor assume, any liability for inaccuracy or incompleteness or any other defect or deficiency related to any such Content. You further agree that we may remove or disable any Content at any time for any reason, or for no reason at all. You expressly acknowledge and agree that we may collect, compile, store and use, and generally process aggregated and non-aggregated data and system usage information to maintain and improve the Device and Services, including for technical diagnostics, to detect fraud or abuse, to create usage reports and for the creation of new products or services.
7. Data Use Policy & Data Protection
To access and use certain features of the Services, you will need to register for a Motion by Mojio Account (the “Account”). During the registration process, you may be asked to provide us with your full name, address, telephone number, email address, photograph and the Device number (or IMEI). You may also be asked to choose a username, password and security questions.
We also collect and use the information described below about the vehicle in which you installed the Device. We receive some of this information via a mobile service provider.
· Vehicle Information: We collect information about your vehicle’s operation to provide you with feedback on your driving habits. For example, we collect data on hard braking, hard acceleration, and speed. We require your vehicle type and vehicle identification number so that we can provide you with tailored feedback.
· Vehicle Location Information: We collect information on the location of your vehicle, including your trip route and the parked location of your vehicle.
8. Disclaimer of Warranties
THE DEVICE AND SERVICES AND THE INFORMATION, CONTENT, AND MATERIALS ON THE DEVICE AND SERVICES ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS. MOJIO MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE DEVICE, THE CONTENT, INFORMATION OR MATERIALS ON THE SERVICES. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, MOJIO EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND, WITH RESPECT TO ANY OF THE MATERIALS, CONTENT, OR INFORMATION ON THE SERVICES OR ANY GOODS OR OTHER PRODUCTS OR SERVICES PROVIDED, OFFERED, SOLD, OR DISPLAYED ON THE SERVICES OR USE OF THE DEVICE AND SERVICES GENERALLY, INCLUDING WARRANTIES OF MERCHANTABILITY, ACCURACY OF INFORMATION, QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO THE EXTENT SUCH JURISDICTION’S LAW APPLIES TO THIS AGREEMENT. MOJIO DISCLAIMS ANY WARRANTY THAT THE DEVICE AND SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED.
THE USE OF THE DEVICE AND SERVICES OR THE DOWNLOADING OR OTHER ACQUISITION OF ANY MATERIALS THROUGH THE DEVICE AND SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, MOBILE DEVICE, VEHICLE OR DEVICE, OR LOSS OF DATA THAT RESULTS FROM SUCH ACTIVITIES.
WE DO NOT WARRANT THAT YOUR USE OF THE DEVICE AND SERVICES WILL RESULT IN ANY SAVINGS OR EFFICIENCIES IN THE OPERATION OF YOUR VEHICLE OR THAT THE DETECTION OF MECHANICAL OR TECHNICAL ERRORS IN YOUR VEHICLE WILL BE ACCURATE OR ERROR-FREE. THE DEVICE AND SERVICES ARE NOT INTENDED TO REPLACE THE ADVICE, GUIDANCE OR DIAGNOSIS OF LICENSED MECHANICS OR PROPER VEHICLE MAINTENANCE. YOU ARE SOLELY RESPONSIBLE FOR THE OPERATION OF YOUR VEHICLE – INCLUDING WHILE USING THE DEVICE AND SERVICES. YOU ACKNOWLEDGE AND AGREE THAT, UNDER NO CIRCUMSTANCES, WILL MOJIO BE RESPONSIBLE FOR ANY ACCIDENT, DAMAGE, LIABILITY, BODILY INJURY OR DEATH THAT MIGHT OCCUR TO YOU, YOUR PROPERTY, THIRD-PARTIES OR THEIR PROPERTY, EVEN IF THE DEVICE AND/OR SERVICES MAY HAVE OR DID CONTRIBUTE TO THE CAUSE OF THE ACCIDENT, DAMAGE, LIABILITY, BODILY INJURY OR DEATH.
Through your use of the Device and Services, you may be able to undertake transactions with third-parties, including but not limited to insurance agents, mechanics, and other vendors. You understand and agree that all transactions relating to any services or products offered by a third-party are solely between you and the third-party. MOJIO MAKES NO WARRANTY REGARDING TRANSACTIONS ENTERED INTO BETWEEN YOU AND A THIRD-PARTY IN CONNECTION WITH THE DEVICE OR SERVICES, AND YOU UNDERSTAND AND AGREE THAT ALL SUCH THIRD-PARTY TRANSACTIONS ARE ENTIRELY AT YOUR OWN RISK.
If a defect in the Device arises within six (6) months of installation, Mojio will, at its sole option and subject to applicable laws, repair or replace it with a new or refurbished Device, product or component. This warranty does not apply (i) where the written instructions for use and activation of the Device are not complied with, or (ii) where the Device is damaged as a result of improper storage, abuse, accident, unauthorized modification or attempted repair, or any other causes beyond Mojio reasonable control. We will use commercially reasonable efforts to make the Device and Services available at all times, except for any scheduled downtime for maintenance and repairs. Mojio will not replace a Device which was stolen.
To obtain remedies under this warranty, we must receive your claim no later than fifteen (15) days after the end of the Warranty Period. You must return the defective Device(s) at your own expense (unless agreed otherwise) to Mojio. Mojio warrants that any repaired or replaced Device shall be covered for the remainder of the original Warranty Period. If the claim is justified, Mojio will repair or replace the Device at Mojio’s expense. Any Device returned without a valid claim may be rejected, sent back to you at your expense (subject to prepayment) or disposed at Mojio’s sole discretion.
10. Limitation of Liability
MOJIO SHALL NOT BE LIABLE FOR ANY DAMAGE, LOSS OR EXPENSE OF ANY KIND ARISING OUT OF OR RESULTING FROM YOUR ACCESS TO OR USE OF THE DEVICE, SERVICES, MATERIALS, CONTENT AND INFORMATION ON THE DEVICE AND SERVICES REGARDLESS OF WHETHER SUCH LIABILITY IS BASED IN TORT, CONTRACT OR OTHER LEGAL THEORY. UNDER NO CIRCUMSTANCES SHALL MOJIO BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OR CORRUPTION OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR INTERRUPTION OF BUSINESS), ARISING OUT OF OR IN ANY WAY RELATED TO THE DEVICE, SERVICES, MATERIALS, CONTENT OR INFORMATION ON THE DEVICE AND SERVICES OR ANY OTHER PRODUCTS, SERVICES, OR INFORMATION OFFERED, SOLD OR DISPLAYED ON THE SERVICES, OR THE USE OF, OR INABILITY TO USE, THE DEVICE AND SERVICES GENERALLY, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF WHETHER WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH. AS SOME STATES DO NOT ALLOW THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY.
MOJIO SHALL NOT BE LIABLE FOR ANY LOSS THAT YOU MAY INCUR AS A RESULT OF THE UNAUTHORIZED USE OF YOUR PASSWORD, ACCOUNT OR ACCOUNT INFORMATION WITH OR WITHOUT YOUR KNOWLEDGE.
MOJIO SHALL NOT BE LIABLE IN ANY WAY FOR ANY THIRD-PARTY GOODS AND SERVICES OFFERED THROUGH THE SERVICES, INCLUDING WITHOUT LIMITATION THE PROCESSING OF ORDERS.
OUR ENTIRE LIABILITY, IF ANY, FOR ANY CLAIMS ARISING OUT OF THIS AGREEMENT AND YOUR USE OF THE DEVICE AND SERVICES (REGARDLESS OF THE NUMBER OF INDIVIDUAL INCIDENTS GIVING RISE TO LIABILITY), AND YOUR EXCLUSIVE REMEDY UNDER ANY THEORY OF FOR ANY CAUSE WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, ANY FAILURE OR DISRUPTION OF SERVICE PROVIDED UNDER THESE TERMS, FRAUD, MISREPRESENTATION, BREACH OF CONTRACT, PERSONAL INJURY, OR PRODUCTS LIABILITY) SHALL BE LIMITED TO THE AMOUNT EQUAL TO THE PORTION OF THE SERVICES RATES CHARGED TO YOU FOR THE SERVICES THAT ARE THE SUBJECT OF THE CLAIM FOR THE PERIOD OF SERVICE DURING WHICH ANY RESULTING DAMAGES OCCURED. YOU ACKNOWLEDGE AND AGREE THAT MOJIO WOULD NOT HAVE AGREED TO PROVIDE THE DEVICE OR SERVICES TO YOU WITHOUT YOUR AGREEMENT TO THIS LIMITATION.
These limitations of liability apply not only to you, but to anyone using your vehicle, the Device or Services, to anyone making a claim on your behalf, and to any claims made by your family, employees, customers, or others arising out of or relating to the Device and Services.
You agree to defend, indemnify, and hold Mojio, its officers, directors, employees, and agents harmless from and against any liability, loss, injury (including injuries resulting in death), demand, action, cost, expense, or claim of any kind or character, including but not limited to reasonable attorney’s fees, arising out of or related in any way to (a) the breach of this Agreement by you, your authorized agents or any occupant of your vehicle, (b) acts or omissions of you, your authorized agents or any occupant of your vehicle within the scope of this Agreement, (c) the use or misuse of or inability to use the Device and Services by you, your authorized agents or any occupant of your vehicle, or (d) the violation by you, your authorized agents or any occupant of your vehicle of any law or regulation, proprietary, intellectual property, or privacy rights in connection therewith.
You agree that the limitations of liability and indemnification in these Terms will survive even after the Services have been terminated for any reason.
We shall provide you with prompt written notice of any claims and provide you with reasonable assistance, at your expense, in the defense of said claims. You also agree that you may not settle any claim against Mojio unless it unconditionally releases Mojio of all liability related to the claim against Mojio.
WITHOUT LIMITATION OF THE GENERALITY OF THE FOREGOING, YOU FURTHER AGREE TO RELEASE MOJIO FROM ALL CLAIMS, LIABILITIES AND LOSSES IN CONNECTION WITH THE DEVICE AND SERVICES, INCLUDING BUT NOT LIMITED TO, CLAIMS FOR DATA COMPROMISE, PERSONAL INJURY OR PROPERTY DAMAGE ARISING FROM THE TOTAL OR PARTIAL FAILURE OF PERFORMANCE OF THE DEVICE AND SERVICES, EVEN IF CAUSED BY THE NEGLIGENCE OF MOJIO, OR THE MALFUNCTION OF THE DEVICE. YOU AGREE THAT THIS RELEASE EXTENDS TO ANY PARTY CLAIMING UNDER YOU AND THAT NO INSURANCE COMPANY WILL HAVE ANY RIGHT OF SUBROGATION.
12. International Use / Export Controls
We make no representations that the Device, Services and Materials are appropriate or available for use in locations outside the United States and accessing them from territories where their contents are illegal, or territories subject to United States Export Controls, is prohibited. If you choose to access this App from other locations, you shall do so on your own initiative and are responsible for compliance with applicable local laws and regulations.
Neither party may assign any of its rights or obligations under the Agreement, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld) provided, however, that either party may assign the Agreement in its entirety, without the other party’s consent (a) to its affiliates, or (b) in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. These Terms will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
Except as otherwise specified in the Agreement, all notices, permissions and approvals shall be in writing and shall be deemed to have been given upon (a) personal delivery, (b) the second business day after mailing, or (c) the day of sending by email (except that email shall not be sufficient for notices of termination or an indemnifiable claim (“Legal Notice”)). Legal Notices to Mojio should be addressed to [email protected] or Attn: General Counsel, Moj.io Inc., 300 Orchard City Dr #100A, Campbell, CA 95008.
Any notice we send you will be sent to the electronic mail address as shown on our records. It is your sole responsibility to ensure that we have the most up-to-date and accurate information for you at all times.
Calls with our customer service representatives, emergency personnel, or the police may be monitored or recorded for quality assurance, issue resolution, maintaining service, training, or promoting or providing services. You (for yourself and your vehicle’s occupants and anyone else acting or using the Device and Services on your behalf): (i) expressly consent to the monitoring and recording activities described herein, and (ii) release us and our partners from claims, liabilities and losses resulting in connection with any such monitored and/or recorded communications.
16. Governing Law and Jurisdiction
These Terms shall be governed by the laws of the State of California, without reference to provisions on conflicts of laws, and the parties agree to submit to the personal and exclusive jurisdiction of the state or federal courts located within Santa Clara County, California for any disputes arising out of this agreement. Any action with respect to this Agreement must be commenced by User within six (6) months after the claim or cause of action arises. User acknowledges that User has read these Terms and understands and agrees to be bound by them. User further agrees that these Terms may be updated from time to time. The currently effective Terms between the parties shall be the most recent agreement. We recommend that you print out a copy of these Terms for your records. Should you have any questions concerning these Terms, you may contact us by writing to Moj.io, Inc., 300 Orchard City Dr #100A, Campbell, CA 95008.
Each party hereto expressly consents to the personal jurisdiction of, and venue in, such courts and service of process being effected upon it by registered mail sent to the Legal Notice address provided by such party under the Agreement. The parties agree that the UN Convention on Contracts for the International Sale of Goods (Vienna, 1980) and the Uniform Computer Information Transaction Act or similar federal or state laws or regulations shall not apply to the Agreement nor to any dispute or transaction arising out of the Agreement.
17. Force Majeure
Neither party will be liable for failure to perform or inadequate performance to the extent caused by a condition that was beyond the party’s reasonable control, including, but not limited to, an act of God, natural disaster, consequences from pandemics, act of war or terrorism, riot or civil arrest, labor conditions, governmental action, disruption of telecommunications, failure or delay of internet services providers or internet disturbance, disruption of power or other essential services or act of a third-party not under contract with the failing party (including the failure or refusal of Mojio’s suppliers to provide Mojio with access to information required to provide the Services).
19. Binding Arbitration and Class Action Waiver
If you have any concerns regarding the Device or Services, you should first contact our customer support department at [email protected], as it is able to resolve most concerns quickly to your satisfaction. The parties shall use their best efforts to settle any dispute, claim, question, issue or disagreement directly through good faith negotiations.
If the parties do not reach an agreed upon resolution through informal efforts within thirty (30) days of the date the claim was initiated, then you agree that either party may initiate binding arbitration as the sole means to resolve such claim, subject to the terms set forth below, and with the exceptions that (a) either party may bring an action in state or federal court to protect its intellectual property rights, and (b) either party may seek claim and relief in a small claims court in the United States for disputes or claims within the scope of that court’s jurisdiction.
Any arbitration under the Terms of the Agreement will take place on an individual basis. Class arbitrations and class actions and private attorney general actions are not permitted.
The binding arbitration process will take place in San Francisco, California under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), in the English language, by one (1) arbitrator appointed in accordance with said rules. These Commercial Arbitration Rules may be accessed at www.adr.org or by calling the AAA at (800) 778-7879. The arbitration will be conducted, and the decision issued no later than ninety (90) days after the submission of the dispute to the AAA. Judgment on the decision rendered by the arbitrator may be entered in any court having jurisdiction thereof. The parties agree that the decision of the arbitrator shall be final and binding. All fees and charges by the AAA shall be borne equally between the parties in the arbitration. Each party shall bear its own attorney fees, expert witness costs and expenses, and all other costs and expenses incurred directly or indirectly in connection with the proceedings, unless the arbitrator for good cause determines otherwise.
You must file a complaint with AAA within one (1) year of the date of the date of the occurrence of the event or facts giving rise to a claim, or you waive the right to pursue any claim based upon such event, facts or disagreement.
You have the right to opt-out and not be bound by the arbitration and class action waiver provisions by notifying Mojio in writing of your decision to opt-out to the following address: Moj.io, Inc., 300 Orchard City Dr #100A, Campbell, CA 95008. Such notice must be sent within 30 days from the date that you first accepted or had access to these Terms. It must include your name, address, the email address that you used to register with Mojio and a clear statement that you do not wish to resolve disputes with us through arbitration. If you opt-out of these arbitration provisions, Mojio will also not be bound by them.
These Terms constitute the entire agreement and understanding between the parties concerning the subject matter hereof. These Terms may NOT be altered, supplemented, or amended by the use of any other document(s). Any attempt to alter, supplement or amend this document or to enter an order for products or services which are subject to additional or altered terms and conditions shall be null and void, unless otherwise agreed to in a written agreement signed by you and us. To the extent that anything in or associated with this App is in conflict or inconsistent with this Agreement, the Terms shall take precedence.
If for any reason a court of competent jurisdiction finds any provision of these Terms or portion thereof to be invalid or unenforceable, that provision shall be enforced to the maximum extent permissible so as to effect the intent of this Agreement, and the remainder of this Agreement shall continue in full force and effect.
No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default.
No third-party beneficiaries are created, and this Agreement will not be construed to provide any person or entity not a signatory hereto with any remedy, claim or other right exceeding those existing without reference to these Terms.
Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of principal and agent, partnership, or employer and employee between you and Mojio.
You acknowledge that you have read the foregoing Terms and Agreement, and you unconditionally accept them as stated and as subsequently altered, amended or modified and agree to be bound by them.