NOTE: THESE TERMS CONTAIN A BINDING ARBITRATION PROVISION AND TIME LIMIT ON SUBMITTING CLAIMS THAT AFFECT YOUR RIGHTS
Effective Date: May 30, 2020
There are different types of Accounts with corresponding data use and protection terms depending on whether the Authorized User is an Owner (the individual who accepts the Terms in the name of your entity), Admin (individuals invited by the Owner to help with daily operations), or Driver (individuals invited to a fleet organization by either the Owner or Admin).
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
Mojio provides the websites located at www.ForcebyMojio.com and www.moj.io (collectively and individually, the “Website”), one or more mobile apps, telematic devices and various related proprietary information, products and other services (collectively, the “Services”).
We may modify the Terms at any time, in our sole discretion by posting modified Terms on the Website. 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 Services.
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 Services
The Services include:
(a) all mobile applications (collectively and individually, the “App”) and other software (“Software”), data, reports, text, images and other content made available by us on the Websites or otherwise,
(b) telematic devices (collectively and individually, the “Device”) that may be connected to your vehicle or assets separately or in connection with the Services,
(c) various related information, products and other services provided or sold to you by Mojio, which products and services may include Force by Mojio, add-on packages and all related support documentation whether in electronic or other medium of format.
Your hereby represent that you have (a) examined the Services and found them suitable for your needs, (b) relied solely upon your own judgement and inspection in determining that the Services are of acceptable quality and fitness for your purpose, (c) verified that installation and use of the Services do and will not interfere with or affect any vehicle systems beyond limits acceptable to you, and (d) verified that installation and use of the Services do and will not void or affect any manufacturer or other applicable vehicle 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 fail to properly install the Device in your vehicle(s). Failure to properly install a Device may cause the Services to function improperly, erratically or not at all. You are responsible for carefully reading and following installation instructions provided with the Device or on the Website.
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 by phone or email.
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 the Notifications settings and can opt in or out of these Notifications through the Services (with the possible exception of infrequent, important service announcements and administrative messages). 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.
3. Limited License Grant
Provided that you comply with these Terms, we grant you and your employees, agents and contractors (collectively and individually, an “Authorized User”) 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. You will ensure each Authorized User’s compliance with the Terms and you will be responsible for any breach of the Terms by an Authorized User as if committed by you.
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.
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. 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 howsoever caused.
4. Registration and Privacy
In order to access and use the Services, you will need to set up a separate account and password by completing our online registration process, which requests certain information and data (“Registration Data”). In the case of a legal entity, each Authorized User will need to establish a username and password. By registering, you agree to provide and maintain true, accurate, current and complete Registration Data. We may use a third-party browser or internet provider, such as Google, to establish your separate account, password and Registration Data. By registering, you agree to comply with all of the terms and conditions imposed by such third-party browser or internet provider.
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.
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 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 Services and other authorized uses described in the 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”, “Force by Moj.io”, and all derivations and logos thereof, respectively, are trademarks of Mojio.
Except as set forth in this agreement, you agree: (a) not to alter, copy, change or remove from the Services or Materials any identification or notice, including but not limited to copyright, trademark, proprietary legends or other notices of Mojio, (b) not to lease, license, re-transmit, rent or sell the Services or Materials, or the right to use and access the Services, (c) not to copy or imitate part or all of the design, layout or look-and-feel of the Services or Materials, all of which are protected by intellectual property rights; and (d) that certain Services may be available only upon you having paid an additional subscription fee.
You acknowledge and agree that use of the Services including hyperlinks therein are at your sole risk and that neither Mojio, its affiliates, nor their respective officers, managers, directors, agents, employees, contractors or subcontractors warrant: (a) that they will be uninterrupted, error-free, free of software viruses or other harmful computer code, files or programs, (b) that data or information obtained from the use of the 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 Services, including for technical diagnostics, to detect fraud or abuse, to create usage reports and for the creation of new products or services.
6. Fees and Payment
Certain Services require the purchase of a subscription (“Fees”) in order to access all or part of such services for the period of time selected during the registration process (each, a “Subscription Term”). Fees are non-refundable and may change at the end of a Subscription Term. All Fees payable under these Terms shall be made in U.S. Dollars.
If you subscribe to the Services or a portion thereof that requires payment of Fees, you agree to pay all such Fees. We (or our authorized payment processor) will charge your credit card upfront for all applicable Fees. You agree to provide us and/or our authorized payment processor with accurate and complete billing information, including current and valid payment card information, and to promptly notify us of any changes necessary to charge your credit card.
By authorizing us or our authorized payment processor to charge your credit card for Services, you further authorize us to continue to charge your credit card (or a replacement card if applicable) for all Fees associated with the Services, including renewals and Device.
Each Subscription Term will automatically renew for the original term of the period of upon its expiration. You must contact us if you do not wish to renew your subscription. If you do not contact us, the Fee for the Services that you selected will automatically renew for the same subscription that you initially selected, at the ten current Fee for such Services.
Fees are exclusive of all taxes, levies, duties or similar governmental assessments of any nature imposed by taxing authorities, including but not limited to value-added, sales, use or withholding taxes assessable by any jurisdiction whatsoever (collectively, “Taxes”) and you are responsible for payment of such Taxes, now or in the future. If we are obligated by law to pay or collect Taxes for which you are responsible, we will invoice you and you will pay that amount unless you can provide a valid tax exemption certificate authorized by the appropriate tax authority. We are solely responsible for taxes assessable against our income, property and employees. You are solely responsible for payment of any and all third-party fees required to use and access the Services (such as telephone toll charges, mobile carrier fees, ISP, data plan, etc.).
Any amounts not paid when due will bear interest at the rate of 1.5% per month (or the highest rate permitted by law if such rate exceeds the highest rate permitted by law). If a Fee cannot be charged to your credit card for any reason, we may provide you notice of such non-payment and a link for you to update your payment information. If such non-payment is not remedied within fifteen (15) days after delivery of such notice of non-payment, we may immediately terminate the applicable Services.
You agree that, in the event we are unable to collect the Fees owed by you to us for the Services, we may, without limiting any rights or remedies, take the steps we deem necessary to collect such Fees (including termination of the Services), and that you will be responsible for all costs and expenses incurred by us in connection with such collection activity, including reasonable attorney’s fees.
If we intend to charge for any Services upgrade or transition, we shall deliver advance written notice to you outlining the timing and amount of such requested charge, and within thirty (30) days of receipt of such written notice, you may either agree to pay such charge or terminate the Services, without liability for early termination charges of any kind.
If you decide to add additional Device(s) to your subscription before the renewal of your Subscription Term, your credit card will be charged with a prorated Fee starting five (5) days after such request is made, with an ending date corresponding to the ending date of your then Subscription Term.
Trial Period (if applicable): If you are using the Services on a trial basis, you may only use the Services for the limited trial period specified by us or on the Website at the time of your order, solely for the purpose of evaluating suitability. Your trial use is subject to these Terms. At the conclusion of your trial period, you will have to purchase a subscription to the Services as from the first date after the trial period, or immediately cease all use of the Services, and return the Device(s) at your expense, subject to Section 13 below.
7. Data Use Policy & Data Protection
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. Using this information, we provide you with insight into your driving style that can help you save on gas and vehicle wear and tear. 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. Trip routes allow you to review a particular route that you have driven, the fuel cost associated with that route, and the length of time the particular route takes to drive.
· Authorized User Information: An Owner has access to the information of other Authorized Users on the Account. An Owner may invite or revoke Admins or Drivers access anytime. An Admin cannot invite or revoke other Admins but otherwise has access to the same features as the Owner. A Driver may request that an Admin or Owner delete or erase the Drivers’ data in certain jurisdictions.
8. Confidential Information
“Confidential Information” means information disclosed by a party (“Disclosing Party”) to the other (“Receiving Party”), whether orally or in writing, that is designated as confidential, or should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes, but is not limited to, software code and designs, product specifications and documentation, including pricing, business and marketing plans, technology and technical information, product plans and designs, financial data, and business processes disclosed by each party under the Terms. Confidential Information does not include information that: (a) is at the time of disclosure, or later becomes, generally known to the public through no fault of Receiving Party, (b) was known to the Receiving Party with no obligation of confidentiality prior to disclosure by Disclosing Party, as proven by records of Receiving Party, (c) is disclosed to Receiving Party by a third party who did not directly or indirectly obtain the information subject to any confidentiality obligation, or (d) is at any time independently developed by Receiving Party without use of Disclosing Party’s Confidential Information as proven by records of Receiving Party.
Receiving Party shall not disclose or otherwise make available any Confidential Information of Disclosing Party to anyone except those of its employees, directors, attorneys, agents and consultants who: (a) need to know the Confidential Information in connection with the purpose of the Agreement and (b) who have previously agreed to be bound by confidentiality obligations no less stringent than those in the Agreement. Each party agrees to (i) safeguard all Confidential Information of the other party with at least the same degree of care (but no less than reasonable care) as it uses to safeguard its own confidential information and (ii) not use any Confidential Information of the other party for any other purpose than the purposes expressly permitted by the Terms.
In the event Receiving Party is required to disclose, pursuant to a judicial order, a requirement by a governmental agency or by operation of law, any Confidential Information of Disclosing Party, then to the extent legally permitted, Receiving Party shall provide Disclosing Party with prior notice of such requirement and reasonable assistance, at Disclosing Party’s cost, if Disclosing Party wishes to contest the required disclosure. Any required disclosure shall be limited to the extent required and shall be subject to confidentiality protections to the extent practicable. No disclosure will remove the obligations of confidentiality to any other Confidential Information nor permit any other disclosure in other circumstances.
9. Representations and Warranties / Disclaimer of Warranties
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 Materials 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, Materials, 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 Material 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 Materials,
(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 (a) modify, translate, reverse engineer, decompile, disassemble or otherwise reduce the Services and Materials 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, (b) copy or create derivative works of the Services and Materials, respectively, (c) distribute or otherwise permit or facilitate the use of the Services and Materials 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.
THE SERVICES (INCLUDING THE DEVICES) AND THE INFORMATION, CONTENT, AND MATERIALS ON THE 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 WEBSITE, 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 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 SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED.
THE USE OF THE SERVICES OR THE DOWNLOADING OR OTHER ACQUISITION OF ANY MATERIALS THROUGH THE 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 warrant that the Device will be free from defects in materials and workmanship for a period of one (1) year from the date of delivery to you (“Warranty Period”). If a defect in the Device arises within the Warranty Period, we will, at our sole option and subject to applicable laws, repair or replace it with a new or refurbished product or component. This warranty does not apply (a) where the written instructions for use and activation of the Device are not complied with, or (b) where the Device is damaged as a result of improper installation, storage, abuse, accident, unauthorized modification or attempted repair, or any other causes beyond our reasonable control. We will use commercially reasonable efforts to make the Services available at all times, except for any scheduled downtime for maintenance and repairs. We 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 the address specified by us. We might not return the original Device to you, and we warrant that any repaired or replaced Device shall be covered for the remainder of the original Warranty Period. If the claim is justified, we will ship the repaired or replaced Device to you at our expense. Any Device returned without a valid claim may be rejected, sent back to you at your expense (subject to prepayment) or disposed at our sole discretion.
From time to time, we may offer services identified as beta, pilot, developer preview, non-production, evaluation or by a description of similar import (“Beta Services”). You may accept or decline Beta Services. If accepted by you, Beta Services: (a) are provided only for evaluation purposes; (b) may not be relied on by you for production use; (c) may not be supported; and (d) may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire on the date that a version of the Beta Services becomes generally available or is discontinued. We may discontinue Beta Services at any time in our sole discretion and may never make Beta Services generally available. ALL BETA SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND. BETA SERVICES MAY BE TERMINATED AT ANY TIME. MOJIO DISCLAIMS ALL OBLIGATIONS AND LIABILITY UNDER THE AGREEMENT FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH A BETA SERVICE, INCLUDING ANY OBLIGATION OR LIABILITY WITH RESPECT TO CUSTOMER DATA. ANY CONFIGURATIONS OR CUSTOMER DATA ENTERED INTO BETA SERVICES, AND ANY CUSTOMIZATIONS MADE TO BETA SERVICES BY OR FOR CUSTOMER, MAY BE PERMANENTLY LOST IF THE BETA SERVICES ARE SUSPENDED, TERMINATED, OR DISCONTINUED.
10. Limitation of Liability
WE 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 SERVICES, MATERIALS, CONTENT AND INFORMATION ON THE SERVICES REGARDLESS OF WHETHER SUCH LIABILITY IS BASED IN TORT, CONTRACT OR OTHER LEGAL THEORY. UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, 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 SERVICES, MATERIALS, CONTENT OR INFORMATION ON THE SERVICES OR ANY OTHER PRODUCTS, SERVICES, OR INFORMATION OFFERED, SOLD OR DISPLAYED ON THE SERVICES, OR THE USE OF, OR INABILITY TO USE, THE 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.
WE 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.
WE SHALL NOT BE LIABLE IN ANY WAY FOR ANY THIRD-PARTY GOODS AND SERVICES OFFERED THROUGH THE SERVICES AND THE WEBSITES, 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 SERVICES (REGARDLESS OF THE NUMBER OF INDIVIDUAL INCIDENTS GIVING RISE TO LIABILITY) SHALL BE LIMITED TO THE AMOUNT YOU PAID US FOR THE SERVICES DURING THE THREE (3) MONTH PERIOD BEFORE THE ACT GIVING RISE TO THE LIABILITY.
You agree to defend, indemnify, and hold Mojio, our 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) your breach of this Agreement, (b) acts or omissions of you, your employees or your Authorized Users within the scope of this Agreement, (c) your use or misuse of or inability to use the Services, or (d) the violation by you or your Authorized Users of any law or regulation, proprietary, intellectual property, or privacy rights in connection therewith.
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.
12. International Use / Export Controls
We make no representations that the 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 Website and/or App from other locations, you shall do so on your own initiative and are responsible for compliance with applicable local laws and regulations.
You may terminate your Agreement with Mojio at any time by contacting us at [email protected] Your termination will be effective as of the last day of the ongoing Subscription Term. Any Fees already due or 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 (or any Authorized User’s) use of and/or access to the Services (a) upon any breach of this Agreement by you at any time, (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, or (c) if you commence or have commenced any proceeding in bankruptcy, insolvency or reorganization pursuant to bankruptcy laws or laws of debtor’s moratorium. 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.
Upon termination of the Agreement, you will immediately, and in no case later than ten (10) business days after the expiration or termination of your subscription, return the Devices to us at your expense (unless otherwise agreed), or pay us a fee of $150 per Device (unless otherwise agreed). The Devices must arrive in good working condition, normal wear and tear excepted. If we do not receive the Devices, or payment within ten (10) business days after the termination or expiration of your subscription, or if the Devices are not returned in a good working condition as determined by us in our sole discretion, we reserve the right to charge your credit card for the applicable fee per Device.
Following any termination or suspension of this Agreement, regardless of the reason therefore, your right to use the Services ceases immediately and Mojio shall have no obligation to maintain any of your data and shall not be liable to you for any Customer data being expunged.
All provisions of these Terms which by their nature should survive termination will survive termination.
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”)).
Billing-related notices to Customer shall be addressed to the relevant billing contact designated by Customer. All other Services related notices to Customer shall be addressed to the relevant Services system administrator or other person designated by Customer in writing or in the Services’ user interface dashboard. 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.
16. Governing Law and Jurisdiction
This Agreement 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 with Mojio arising out of this agreement. Any action with respect to this Agreement must be commenced by Customer within six (6) months after the claim or cause of action arises. Customer acknowledges that Customer has read this Agreement and understands and agrees to be bound by its terms. Customer further agrees that this Agreement may be updated from time to time by Mojio. The currently effective Agreement between the parties shall be the most recent agreement posted on the Website. Mojio recommends that Customer prints out a copy of this Agreement for their records. Should Customer have any questions concerning this Agreement, Customer may contact Mojio 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.
You consent to our use of your name and logo and general description of your relationship with us in press releases and other marketing materials and appearances. You further permit us to use it as a reference account for marketing purposes and agree, from time to time, to support us by participating in reference phone call(s) and other marketing events including with press, analysts, and our existing or potential investors or customers upon reasonable request.
18. Force Majeure
Except for payment obligations under the Agreement, 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 Services, you should first contact our Customer Support Department at [email protected], as it is able to resolve most concerns quickly to our Customers’ 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. Judgement 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 and supersedes all prior agreements and understandings of the parties with respect thereto. The terms and conditions in this Agreement 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 Website and 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 this Agreement 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 employer and employee between Customer and Mojio.
Customer acknowledges that Customer has read the foregoing Terms and Agreement, and Customer unconditionally accepts them as stated and as subsequently altered, amended or modified and agrees to be bound by them.