IMPORTANT! PLEASE READ THE TERMS CAREFULLY AS THEY AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS AND CONSISTUTE A BINDING LEGAL AGREEMENT BETWEEN YOU AND T-MOBILE. THESE TERMS APPLY TO ANYONE WHO USES THE DEVICE OR SERVICES PURSUANT TO YOUR REGISTRATION OF THE DEVICE OR DOWNLOADING OF THE APP, WHETHER OR NOT YOU HAVE AUTHORIZED THAT PERSON’S USES OR NOT AND EVEN IF THAT PERSON HAS NOT REVIEWED THESE TERMS. YOU ARE RESPONSIBLE FOR ANY SUCH USES. IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THESE TERMS, DO NOT INSTALL THE DEVICE, CLICK “ACCEPT” OR USE THE SERVICES.
These Terms may be changed, modified, supplemented, or updated by T-Mobile 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, or (ii) by electronic mail. You may be required to accept the new or modified terms prior to being able to access the App. 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.
Description of Device and Services
The “Device” means the T-Mobile SyncUp Drive OBD-II device which is designed for use in connection with the Services. The “Services” include: (a) any software embedded in the Device, (b) the Network Service, as defined in the Section entitled “Network Service,” (c) the T-Mobile SyncUp Drive Motion 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 (d) any other Services made available in connection with the Device or App.
IN ORDER FOR YOU TO USE THE SERVICES THE DEVICE MUST BE PROPERLY INSTALLED IN A COMPATIBLE VEHICLE. YOU AGREE TO ONLY USE THE DEVICE AND SERVICES WITH A COMPATIBLE VEHICLE. CHECK VEHICLE COMPATIBILITY HERE.
EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE “ARBITRATION; GOVERNING LAW; DISPUTES” PROVISION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND T-MOBILE WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU WAIVE YOUR RIGHT TO BRING OR RESOLVE ANY DISPUTE AS, OR PARTICIPATE IN, A CLASS, CONSOLIDATED, REPRESENTATIVE, COLLECTIVE, OR PRIVATE ATTORNEY-GENERAL ACTION OR ARBITRATION. Puerto Rico customers: See below for details on the Puerto Rico Telecommunications Dispute Procedure.
Subject to these Terms, you are granted a limited, personal, non-exclusive, non-commercial, revocable, non-assignable and non-transferable license to (a) install and use the Device in a vehicle that is owned or controlled by you and (b) download and use the App on your mobile device. T-Mobile and its licensors retain exclusive ownership of all proprietary rights in the App throughout the world. You may not modify, copy, distribute, transfer or reverse engineer the Device or Services or alter, disable or circumvent any digital rights management security features embedded in the Device or Services. You agree to only use the Device and Services in accordance with all applicable laws and regulations. You further agree not to install or use the device in any vehicle that is not owned or controlled by you, or where you do not have permission to install or use the device in such vehicle.
Consent to Use of Data
The App will collect your geo-location data only after you provide your consent to do so. Your consent can be revoked at any time through device settings on the device where you’ve installed the app. Doing so may limit certain functionality in the App
T-Mobile makes wireless connectivity and certain data services available to you through the Device and Services. The “Network Service” means the wireless services provided to you by T-Mobile, which are subject to T-Mobile’s Terms and Conditions located at http://www.t-mobile.com/terms-conditions. These Terms supplement and do not amend your Terms and Conditions for network service, and do not limit or restrict any warranties or other terms including in the Device package.
Term and Termination:
T-Mobile reserves the right to terminate your access to and use of the Services, including the App or any of its features at any time in its sole discretion, without notice and liability, including, without limitation, if T-Mobile believes your conduct fails to conform to these Terms. T-Mobile also reserves the right to investigate suspected violations of these Terms. Any violation of these Terms may be referred to law enforcement authorities.
T-Mobile also reserves the exclusive right to modify, withdraw, suspend or discontinue, temporarily or permanently, at any time and from time to time, any materials, information, or content available on the App, without limitation, in whole or in part, including the cessation of all activities associated with the Device and Services, with or without notice. You agree that T-Mobile will not be liable to you or to any third party for any modification, suspension or discontinuance of the Device or Services or any part thereof. T-Mobile also reserves the right to charge for use of the Device and Services, in whole or in part, and to change its fees from time to time in its discretion.
Third Party Content, Services, and Apps
Disclaimer of Warranties:
TO THE EXTENT PERMITTED BY LAW THE DEVICE AND THE SERVICES ARE PROVIDED ON AN "AS IS" AND "WITH ALL FAULTS" BASIS AND WITHOUT WARRANTIES OF ANY KIND BY T-MOBILE AND ITS LICENSORS. T-MOBILE AND ITS LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, NONINFRIGNEMENT OR FITNESS FOR A PARTICULAR PURPOSE CONCERNING THE DEVICE OR THE SERVICES.
Without limiting the previous paragraph, neither T-Mobile nor T-Mobile’s licensors or suppliers is responsible for any harms resulting from your use of the App, including download, installation, use, transmission failure, or alterations the App may make to the functionality of your Device, handset, OBDII port or other software or hardware, including any changes that may affect your wireless plan, service, or billing, malfunction, data loss, data access by unauthorized third parties or others in the event of accidents. Neither T-Mobile nor T-Mobile’s licensors or suppliers are responsible for any harms arising from your installation or use of the Device, including any damage to you or your vehicle, or any voiding of your vehicle warranty.
T-MOBILE DOES 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 CIRCUMSTANCE, WILL T-MOBILE 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.
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. T-MOBILE 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 T-Mobile.
Driving safety; Limitation of Liability; Indemnification:
The Device and App are operable even while your vehicle is in motion. It is very important that you and others ALWAYS EXERCISE CAUTION AND DRIVE APPROPRIATE TO ROAD CONDITIONS AND IN ACCORDANCE WITH ALL TRAFFIC LAWS, INCLUDING LAWS REGARDING OPERATION OF SMARTPHONES 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. ALWAYS DRIVE SAFELY AND DO NOT RELY ON THE DEVICE OR SERVICES TO PROVIDE ACCURATE INFORMATION REGARDING DIRECTIONS, ROAD CONDITIONS OR DRIVING HAZARDS.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU WILL LIMIT CLAIMS FOR DAMAGES OR OTHER MONETARY RELIEF AGAINST T-MOBILE AND ITS LICENSORS AND SUPPLIERS TO AMOUNTS ACTUALLY PAID TO T-MOBILE FOR THE DEVICE AND SERVICES IN THE PRIOR TWELVE (12) MONTHS, AND IN NO EVENT WILL T-MOBILE BE RESPONSIBLE FOR ANY AMOUNTS THAT CANNOT BE ATTRIBUTED TO TO DIRECT AND ACTUAL DAMAGES. THIS LIMITATION AND WAIVER WILL APPLY REGARDLESS OF THE THEORY OF LIABILITY, WHETHER FRAUD, MISREPRESENTATION, BREACH OF CONTRACT, NEGLIGENCE, PERSONAL INJURY, PRODUCTS LIABILITY, INTELLECTUAL PROPERTY INFRINGEMENT, OR ANY OTHER THEORY REGARDLESS OF WHETHER T-MOBILE OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS MEANS THAT YOU WILL NOT SEEK, AND HEREBY WAIVE ANY INDIRECT, SPECIAL, CONSEQUENTIAL, TREBLE, OR PUNITIVE DAMAGES FROM T-MOBILE OR ITS LICENSORS. THIS LIMITATION AND WAIVER ALSO APPLIES TO ANY CLAIMS YOU MAY BRING AGAINST ANY OTHER PARTY TO THE EXTENT THAT T-MOBILE OR ITS LICENSORS WOULD BE REQUIRED TO INDEMNIFY THAT PARTY FOR SUCH CLAIM.
You hereby undertake to defend, indemnify, and hold T-Mobile and its officers, employees, shareholders, affiliates, subsidiaries, licensors and anyone acting on T-Mobile’s behalf harmless from any claims arising out of or in connection with the use of the Device or the Services, your breach of any of these terms, or violation of any laws or regulations or the rights of any third party by you or any person on your account or that you allow to use the Device or Services.
The Services may allow you to send and receive text messages (SMS) on your mobile device. The number of messages per month will depend upon your settings. You grant us authorization to send account-related and other informational SMS to your account. Message and data rates may apply and you will be responsible for paying such charges. Check with your carrier if you have questions about your plan and costs.
Arbitration; Governing Law; Disputes:
You and T-Mobile (together the “Parties”) each agree that (except as to Puerto Rico customers) any and all claims or disputes in any way related to or concerning these Terms or the App will be resolved by binding arbitration. This Agreement is governed by the Federal Arbitration Act, applicable federal law, and the laws of the state in which you reside, without regard to the conflicts of laws rules of that state. Foreign laws (except for Puerto Rico) do not apply. Arbitration or court proceedings must be in: (a) the county and state in which you reside, but not outside the U.S.; or (b) in Puerto Rico if you reside in Puerto Rico.
THERE IS NO JUDGE OR JURY IN ARBITRATION AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. THE PARTIES AGREE THAT ANY PROCEEDINGS, WHETHER IN ARBITRATION OR IN COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A MEMBER IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. If a court or arbitrator determines in an action between you and T-Mobilethat this class-action waiver is unenforceable, the arbitration agreement will be void as to you.
To begin arbitration or other legal proceeding against T-Mobile, you must serve T-Mobile’s registered agent. T-Mobile’s registered agent is Corporation Service Company and can be contacted at 1-866-403-5272. For Puerto Rico customers, T-Mobile’s registered agent is The Prentice-Hall Corporation System, Puerto Rico, Inc. and can be contacted at FGR Corporate Services, Inc., Oriental Bank Building, Suite P-1, 254, Muñoz Rivera Avenue, San Juan, Puerto Rico, 00918, phone: 1-800-927-9801. Any arbitration of a dispute will be administered by the American Arbitration Association (“AAA”) under its consumer Arbitration Rules in effect at the time the arbitration is commenced. The AAA rules are available at www.adr.org. The arbitration of all disputes will be conducted by a single arbitrator, who shall be selected using the following procedure: (a) the AAA will send the parties a list of five candidates; (b) if the parties cannot agree on an arbitrator from that list, each party shall return its list to the AAA within 10 days, striking up to two candidates, and ranking the remaining candidates in order of preference; (c) AAA shall appoint as arbitrator the candidate with the highest aggregate ranking; and (d) if for any reason the appointment cannot be made according to this procedure, the AAA may exercise its discretion in appointing the arbitrator. Upon filing of the arbitration demand, T-Mobile will pay or reimburse all filing, administration and arbitrator fees. An arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory relief and attorneys’ fees. In addition, for claims under $75,000 as to which you provided notice and negotiated in good faith as required above before initiating arbitration, if the arbitrator finds that you are the prevailing party in the arbitration, you will be entitled to a recovery of reasonable attorneys’ fees and costs. Except for claims determined to be frivolous, T-Mobile agrees not to seek an award of attorneys’ fees in arbitration even if an award is otherwise available under applicable law. PUERTO RICO: T-Mobile will provide you with a determination regarding any dispute you present to T-Mobile within 15 days after T-Mobile receives it. You will have 20 days from the mailing date of the notification to request a reconsideration of T-Mobile’s determination. You may appeal T-Mobile’s determination to the Telecommunications Board of the Commonwealth of Puerto Rico (“Telecommunications Board”) by filing a petition for review up to 30 days after the date of T-Mobile’s determination. Your petition for review shall be made through the filing of a document containing the following information: (a) your name and address; (b) T-Mobile’s company name; (c) the pertinent facts; (d) any applicable legal provisions that you are aware of; and (e) the remedy you are requesting. The document may be filed handwritten or typewritten, and must be signed by you. You must send T-Mobile a copy of your document to the following address: 654 Muñoz Rivera Avenue, Suite 2000, Hato Rey, Puerto Rico 00918, Attn: Customer Care Manager. You must send your petition for review to the Puerto Rico Telecommunications Regulatory Board at the following address: 500 Ave. Roberto H. Todd (Pda. 18 – Santurce), San Juan, Puerto Rico 00907-3941. The Telecommunications Board will review T-Mobile’s determination only on appeal. You are advised of the provisions regarding suspension of Service that appear in Law 33 of July 7, 1985, Law 213 of September 12, 1996 and Regulations 8065 promulgated on August 31, 2011 by the Telecommunications Board regarding the procedures for customer’s dispute resolution and suspension of Services.
These Terms, and any additional terms referenced therein, constitute the complete, final, and exclusive understanding between you and T-Mobile regarding the subject matter of these Terms, and govern your use of the Device and Services. These Terms supersede all prior understandings, communications, and agreements between you and T-Mobile with respect to the Device and Services. These Terms supplement and do not supersede any materials provided in the Device package by the manufacturer. T-Mobile reserves the right to modify these terms at any time without prior notice in accordance with these Terms.
T-Mobile 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 T-Mobile’s prior written consent, which may be withheld at T-Mobile’s sole discretion.
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.