Terms and Conditions
Last Updated: August 9th, 2016
- Your Acknowledgment and Acceptance of This Agreement
These TextNinja Terms and Conditions (“Terms”) form a binding agreement between you and TextNinja Co. (“TextNinja”, “we” or “us”) that governs your use of the Device and Services (as defined below). By installing the Device, installing the app (which includes checking a box that you have read and agree to these Terms), or using the services, you acknowledge that you have read, understood and agreed to be bound by these Terms. If you do not agree to these Terms, you may not use the Device or Services. These Terms apply to your use of the Device and Services.
These Terms may be changed, modified, supplemented, or updated by TextNinja from time to time without advance notice via: (i) a prompt from an App that will allow you to read the new or modified Terms, and require you to accept the new or modified terms prior to being able to access the App, (ii) by electronic mail, or (iii) by posting a notice on the TextNinja website, which is located at TextNinja.com. You will be bound by any such changed, modified, supplemented or updated Terms if you continue to use the Device or Services after such changes are posted or otherwise identified to you. Unless otherwise indicated, any new content, products, services or functionality added to the Device or Services will also be subject to these Terms effective upon the date of their addition. You are encouraged to review these Terms periodically for updates and changes.
If you have any questions about these Terms, please email us at firstname.lastname@example.org or write to us at TextNinja Co., 222 W Merchandise Mart Plaza #1212 Chicago IL 60654, Attention: Legal.
- Description of the Device and Services
The “Device” means the TextNinja branded OBD-II Bluetooth device (including Bluetooth Low Energy, or BTLE) which provides the Services. The “Services” include: (a) TextNinja’s mobile application (the “Motovate App”), including their associated media, online, electronic and printed documentation, and updates and upgrades that replace or supplement the Motovate App (that are not distributed under different terms); (b) third party applications provided via the Motovate app, and (c) all other services, information, data, reports, images, text, sounds, video and other content made available through (a) and (b).
IN ORDER FOR YOU TO USE THE SERVICES, (I) THE DEVICE MUST BE PROPERLY INSTALLED IN A COMPATIBLE VEHICLE, (II) THE MOBILE DEVICE ON WHICH THE SERVICES ARE INSTALLED MUST BE INSIDE OF YOUR VEHICLE, AND (III) YOUR MOBILE DEVICE MUST BE CONNECTED PROPERLY VIA BLUETOOTH.
TextNinja may modify the Services, including by adding new features or discontinuing all or a portion of the Services, at any time without notice to you.
- License and Restrictions
- 3.1 Grant of License. Upon installation of the Device, downloading an App or otherwise using the Services and subject to your payment of all applicable fees, TextNinja grants to you a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to (a) install and use the Device in a vehicle that is owned or controlled by you, and (b) install and use the Services on any mobile device that you own or control and on which the Services are permitted to operate (as determined by TextNinja), with both (a) and (b) solely as permitted by applicable law and these Terms (the “License”).
- 3.2 Restrictions on the License. Note that the Services, including the Motovate App, are licensed – and not sold – to you according to the terms of the License for use under these Terms.
- The License does not allow you to install a Device in any vehicle that you do not own or control.
- The License does not allow you to use the Services on any device that you do not own or control, and you may not distribute or make the – Services available over a network where they could be used by multiple devices at the same time.
- You may not rent, lease, lend, sell, redistribute or sublicense the Services.
- You may not use the Device or Services in any unlawful way (including, without limitation, in violation of any export, data or privacy laws), or in any way that interferes with the integrity or operation of the Device or Services.
- You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, adapt, hack, or create derivative works of, or attempt to gain unauthorized access to or disrupt proper performance of, the Device or Services, any updates, or any components of the Device or Services.
- You may not use the Device or Services other than as intended, including, without limitation, attempting to gain information or data through means or channels not intentionally made available to you by TextNinja or provided for through the Service or Device.
Any attempt to do any of the actions in listed above is a violation of the rights of TextNinja and its licensors. If you breach the License, you may be subject to civil and criminal liability. The terms of the License will govern any upgrades provided by TextNinja that replace or supplement the original Services, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern. You shall promptly notify TextNinja if you learn of a security breach related to the Device or Services.
- 3.3 Reservation of TextNinja’s Rights. You acknowledge that you will not use Device or Services for any other purpose than permitted under these Terms. You also acknowledge that TextNinja and its licensors retain all ownership and intellectual property rights in and to the Device and Services.
- 3.4 Termination. The License is effective until terminated by you or TextNinja. Your rights under the License will terminate immediately without notice from TextNinja if you fail to comply with the Terms or upon termination of these Terms by TextNinja or you. Upon termination of the License, you shall cease all use of the Services and Device, and permanently delete all copies of the Services, including the Motovate App. Any termination will not limit any of TextNinja’s other rights or remedies at law or in equity. The provisions of Sections (including subsections): 4, 5, and 7-10 shall survive termination or expiration of these Terms for any reason.
- Consent to Use of Data
- 4.2 Security Not Guaranteed. TextNinja uses reasonable security measures to protect the Device and secure the data we receive via the Services and Device. However, TextNinja cannot guarantee that third parties will never defeat our security measures. You acknowledge that your data might be subject to unauthorized access and, as such, you are using the Services and Device at your risk.
- DRIVING SAFETY AND LIABILITY DISCLAIMERS
The Device and Services are operable even while your vehicle is in motion. It is very important that you and others ALWAYS DRIVE VIGILANTLY ACCORDING TO ROAD CONDITIONS AND IN ACCORDANCE WITH TRAFFIC LAWS, INCLUDING BUT NOT LIMITED TO LAWS REGARDING OPERATION OF MOBILE DEVICES WHILE DRIVING. The information provided by the Device and Services is not intended to replace the information provided to you on the road (for example, traffic signs, lane closures, police instructions) or through operation of your vehicle. YOU ACKNOWLEDGE AND AGREE THAT, UNDER NO CIRCUMSTANCE, WILL TEXTNINJA 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 OR SERVICES MAY HAVE OR DID CONTRIBUTE TO THE CAUSE OF THE ACCIDENT, DAMAGE, LIABILITY, BODILY INJURY OR DEATH.
- Limited Warranty
- 6.1 Limited Device Warranty. This limited warranty extends from TextNinja to you, if you were the original purchaser of the Device. Devices provided by TextNinja are warranted to be free from defects in materials or workmanship under normal use in a compatible vehicle (a) for new Devices, for one year from the date of original purchase, and (b) for repaired, replaced or refurbished Devices, (i) 90 days after the date the repaired, replaced or refurbished device is shipped by TextNinja to you, or (ii) the remainder of the one year period for new devices, whichever period is longer (as applicable, the “Warranty Period”). Within the Warranty Period, TextNinja will – at its sole option and as its sole liability and as your exclusive remedy – (A) repair the Device with new or refurbished parts, (B) replace the Device with a reasonably available equivalent new or refurbished Device, or (C) refund to you the amount you paid for the Device, less any rebates and discounts. TextNinja’s repair or replacement of the Device will be at no charge to you for parts or labor; however, you are responsible for paying the shipping costs and handling costs to return the Device to TextNinja. All replaced Devices and parts become the property of TextNinja upon TextNinja’s receipt.
- 6.2 Submitting a Warranty Claim. To submit a Device warranty claim, contact email@example.com or write to us at TextNinja Co., 222 W Merchandise Mart Plaza Suite 1212, Chicago, IL 60654, Chicago, IL 60654 USA, Attention: Customer Service, and we will provide further instructions on how to submit your warranty claim. You will be responsible for following any instructions provided. Defective Devices covered by the limited warranty described above will be repaired or replaced and returned to you without charge, or, at TextNinja’s discretion, TextNinja will refund to you the amount you paid for the Device, less any rebates and discounts. However, TextNinja will not ship replacement Devices to any country or territory in which the original Device was not purchased. TextNinja will notify you if any repairs or replacements are not covered by the limited warranty, and you may choose to have TextNinja repair or replace the Device at TextNinja’s then-current service rates, or return your Device to you at your cost.
- 6.3 WARRANTY DISCLAIMER. EXCEPT FOR THE DEVICE LIMITED WARRANTY PROVIDED ABOVE, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE DEVICE AND SERVICES IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND DEVICE ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND TEXTNINJA HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE DEVICE AND SERVICES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, TITLE, SATISFACTORY QUALITY, RELIABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. TEXTNINJA DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE DEVICE OR SERVICES, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE DEVICE OR SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE DEVICE OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE DEVICE OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TEXTNINJA OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY.
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, emergency service providers, and other vendors. You understand and acknowledge that all transactions relating to any services or products offered by a third party are solely between you and the third party vendor. TEXTNINJA 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. Any warranty regarding any products or services made available to you from a third party is provided – if at all – by that third party and not by TextNinja.
YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT TEXTNINJA DOES NOT WARRANT YOUR USE OF THE DEVICE AND SERVICES WILL RESULT IN ANY SAFETY, SAVINGS, OR EFFICIENCIES IN THE OPERATION OF YOUR VEHICLE. YOU ARE SOLELY RESPONSIBLE FOR THE OPERATION OF YOUR VEHICLE – INCLUDING WHILE USING THE DEVICE AND SERVICES.
Some jurisdictions do not allow the exclusion of implied warranties or limitations on applicable statutory rights of a consumer, so the above exclusion and limitations may not apply to you.
- Limitation of Liability
- 7.1 Limitation of Damage Types. EXCEPT TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL TEXTNINJA BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES RESULTING FROM DEATH, PERSONAL INJURY, PROPERTY DAMAGE (INCLUDING, BUT NOT LIMITED TO, DAMAGE TO VEHICLES AND OTHER PERSONAL PROPERTY), ACTION OR INACTION OF THIRD PARTY SERVICE PROVIDERS, YOUR USE OF OR INABILITY TO USE THIRD PARTY SERVICES, VIOLATION OF YOUR VEHICLE’S WARRANTY, UNAUTHORIZED ACCESS TO YOUR DEVICE OR THE SERVICE, LOSS OF PROFITS OR INCOME, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OF, OR INABILITY TO USE, THE DEVICE OR SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF TEXTNINJA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Some jurisdictions do not allow the limitation of liability for personal injury, or of incidental or consequential damages, so this limitation may not apply to you.
- 7.2 Limitation of Liability. IN NO EVENT SHALL TEXTNINJA’S TOTAL LIABILITY TO YOU FOR DIRECT DAMAGES AND FOR ALL OTHER DAMAGES ARISING OUT OF OR RELATED TO THE DEVICE OR THE SERVICES EXCEED THE FEES PAID BY YOU TO TEXTNINJA IN THE THREE MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM, OR IF NO FEES WERE PAID, ONE HUNDRED U.S. DOLLARS ($100.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
You agree to fully indemnify, defend and hold harmless TextNinja and its affiliates, and its and their subsidiaries, predecessors, successors, officers, directors, employees, agents, licensors, suppliers and clients from and against any and all claims, losses, costs (including court costs), fees (including reasonable legal fees), damages and expenses that the indemnified parties may incur as a result of, due to, or arising out of (a) your use of the Device or Services, (b) a violation by you (or anyone acting under your account) of these Terms, or (c) any claim alleging that Your Content or any communications, information or materials you submit to TextNinja through the Services, Device or by any other means violates a third party’s intellectual property rights.
- Dispute Resolution by Binding Arbitration
- 9.1 Customer Service and FAQs. At TextNinja, we expect that our customer service team will be able to quickly and satisfactorily resolve most concerns you may have regarding Motovate, the Device or the Services by contacting TextNinja customer service at support@TextNinja.com or by reviewing the FAQ page on our website at /faqs/. In the unlikely event that an issue, concern or claim (including legal claims) remains unresolved, you and TextNinja each agree to discuss any issue informally for at least 30 days. You can do that by sending your full name and contact information, your concern and your requested solution to TextNinja Co., 222 W Merchandise Mart Plaza #1212 Chicago IL 60654 Attention: Legal Department. If we would like to discuss an issue with you, we will email you at the email address you used when you installed the Motovate app.
- 9.2 Agreement to Arbitrate. If we do not reach an agreed solution after the 30-day discussion period, you and TextNinja each agree that any issue, concern or claim (including legal claims) that either of us may have arising out of or relating to these Terms (including formation, performance, or breach of them), our relationship with each other, or use of the Device or Services, must be resolved through final binding arbitration before the American Arbitration Association using its Consumer Arbitration Rules, available here (the “AAA Rules”) or available by calling the American Arbitration Association at 1-800-778-7879. As an exception to this agreement to arbitrate, TextNinja is happy to give you the right to pursue in small claims court any claim that is within that court’s jurisdiction, so long as you proceed solely on an individual basis. A party who intends to seek arbitration must first send to the other party, by certified or registered mail, a written notice of dispute. You may download or copy a form notice of dispute and a form to initiate arbitration from www.adr.org. Unless you and TextNinja agree otherwise, the arbitration hearings will take place in a reasonably convenient location for both parties as determined by the arbitrator in accordance with the AAA Rules, and the hearings may be conducted in-person, by videoconference, phone or by the exchange of documents. The arbitrator’s decision will be binding and may be enforced and entered as a judgment in any court of competent jurisdiction. If the arbitrator rules against TextNinja, we think it’s fair that TextNinja reimburse you for your reasonable attorneys’ fees and costs, regardless of who initiated the arbitration. However, if the arbitrator rules in TextNinja’s favor, TextNinja will not seek reimbursement of our attorneys’ fees and costs, regardless of who initiated the arbitration.
- 9.3 Time Limitation; No Class Actions. To help resolve any issues between us promptly and directly, you and TextNinja agree to begin any arbitration under these Terms within one year after the claim first arose; otherwise, the claim is waived. You and TextNinja also agree to arbitrate in each of our individual capacities only – not as a representative or member of a class – and each of us expressly waives any right to file a class action or seek relief on a class action basis. Furthermore, unless you and TextNinja agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative of class proceeding.
- 9.4 Confidentiality. All arbitration proceedings are confidential, unless both you and TextNinja agree otherwise. Arbitration orders and awards required to be filed with applicable courts of competent jurisdiction are not confidential and may be disclosed by the parties to such courts. A party who improperly discloses confidential information shall be subject to sanctions. The arbitrator and forum may disclose case filings, case dispositions, and other case information as required by a court order of proper jurisdiction.
- 10.1 International Use. TextNinja’s goal is to bring you the Device and Services to many different countries; however, you may only use the Device and Services in jurisdictions where use has been specifically authorized by TextNinja.
- 10.2 U.S. Government License Rights. Devices and Services provided to the U.S. Government pursuant to solicitations issued on or after December 1, 1995 are provided with the commercial license rights and restrictions described in these Terms. All Devices and Services provided to the U.S. Government pursuant to solicitations issued prior to December 1, 1995 are provided with “Restricted Rights” as provided for in FAR, 48 CFR 52.227 -14 (JUNE 1987) or DFAR, 48 CFR 252.227-7013 (OCT 1988), as applicable.
- 10.3 Export Restrictions. You acknowledge that the Device and Services are subject to U.S. export control laws. You agree to comply with all applicable international and national laws that apply to the Device and Services, including the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by U.S. and other governments.
- 10.4 Complete Agreement. The Terms, and any additional referenced terms therein (including Attachment A (Network Service Terms), constitute the complete, final and exclusive understanding between you and TextNinja relating to the subject matter of these Terms, and governs your use of the Devices and Services. These Terms supersede all prior or contemporaneous understandings, agreements and communications between you and TextNinja with respect to the subject matter of these Terms. TextNinja reserves the right to modify these Terms at any time without prior notice in accordance with Section 1 of these Terms.
- 10.5 Third Party Terms. You may be subject to additional terms and conditions that may apply when you obtains or uses third-party content, third-party software or goods and services provided by or through clients, sponsors, partners, licensors or other third-party partners of TextNinja.
- 10.6 Severability. If any provision of these Terms is held by a court or arbitrator of competent jurisdiction to be invalid, then such provision shall be construed, as nearly as possible, to reflect the intentions of the parties, and all other provisions shall remain in full force and effect.
- 10.7 Waiver. TextNinja’s failure to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by TextNinja in writing. Neither the course of conduct between the parties nor trade practice shall act to modify any provision of these Terms.
- 10.8 Governing Law The Terms shall be governed by and construed according to the laws of the State of Illinois, without giving effect to principles of conflicts of law and as applied to agreements made, entered into and performed entirely in Illinois by Illinois residents, notwithstanding the actual residence of the parties.
- 10.9 Assignment. TextNinja may assign its rights and delegate its duties under these Terms to any party at any time without notice to you. You may not assign or delegate your rights or obligations without TextNinja’s prior written consent, which may be withheld and conditioned at TextNinja’s sole discretion.
- 10.10 Interpretation; Headings. All headings in these Terms are for convenience only and have no legal effect. These Terms may be provided in other languages for your convenience; however, the English version of these Terms is controlling between you and TextNinja in all respects. The word “including” as used in these Terms is understood between you and TextNinja to mean “including, but not limited to.”
- 10.11 Electronic Communications; Notices. You hereby agree to the use of electronic communications in order to enter into these Terms, to create other records and to the electronic delivery of notices, policies and records of transactions between you and TextNinja with respect to the Devices, Services, and these Terms. You hereby waive any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable mandatory law.