Effective as of June 3, 2019
IMPORTANT! PLEASE READ THE TERMS CAREFULLY AS THEY AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS AND CONSISTUTE A BINDING LEGAL AGREEMENT BETWEEN YOU AND METRO. 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 Metro 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 Metro MetroSmart Ride 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 Metro MetroSmart Ride 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 METRO 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.
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. Metro 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 Collection and Use of Data
The Device will collect and transmit to Metro and Mojio geo-location data (and other applicable data used to provide the Service) after it is installed in a vehicle and associated with your account via the App. It will continue to collect and transmit such data until the Device is unplugged from the vehicle or your MetroSMART Ride account is deactivated.
The App will collect and transmit to Metro and Mojio geo-location data associated with the mobile device on which the App is installed after you provide your consent to do so. Geo-location data from the App is used to show proximity to the vehicle. You will be prompted during App set-up to allow location sharing with the App. You can choose not to allow location sharing from the App and your consent can be revoked at any time through OS settings on the mobile device where you’ve installed the app. Doing so may limit certain functionality in the App. But please note that changing your location settings in the App will not affect location sharing from the Device itself.
Metro 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 Metro, which are subject to Metro’s Terms and Conditions located at https://www.metrobyt-mobile.com/terms-conditions/terms-conditions-service.html. 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:
Metro 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 Metro believes your conduct fails to conform to these Terms. Metro also reserves the right to investigate suspected violations of these Terms. Any violation of these Terms may be referred to law enforcement authorities.
Metro 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 Metro 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. Metro 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 METRO AND ITS LICENSORS. METRO 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 Metro nor Metro’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 Metro nor Metro’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.
METRO 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 METRO 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. METRO 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 Metro.
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 METRO AND ITS LICENSORS AND SUPPLIERS TO AMOUNTS ACTUALLY PAID TO METRO FOR THE DEVICE AND SERVICES IN THE PRIOR TWELVE (12) MONTHS, AND IN NO EVENT WILL METRO BE RESPONSIBLE FOR ANY AMOUNTS THAT CANNOT BE ATTRIBUTED 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 METRO 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 METRO OR ITS LICENSORS. THIS LIMITATION AND WAIVER ALSO APPLIES TO ANY CLAIMS YOU MAY BRING AGAINST ANY OTHER PARTY TO THE EXTENT THAT METRO OR ITS LICENSORS WOULD BE REQUIRED TO INDEMNIFY THAT PARTY FOR SUCH CLAIM.
You hereby undertake to defend, indemnify, and hold Metro and its officers, employees, shareholders, affiliates, subsidiaries, licensors and anyone acting on Metro’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.
By accepting this Agreement you are agreeing to receive account-related and other informational SMS messages from Metro and Mojio to the phone number registered to your account. The frequency of these messages varies by user. To stop receiving messages, reply STOP to 796287. Metro is not liable for any delayed or undelivered messages.
Arbitration; Governing Law; Disputes:
You and Metro (together the “Parties”) each agree that 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 do not apply. Arbitration or court proceedings must be in the county and state in which you reside, but not outside the U.S.
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 Metro that this class-action waiver is unenforceable, the arbitration agreement will be void as to you.
To begin arbitration or other legal proceeding against Metro, you must serve Metro’s registered agent. Metro’s registered agent is Corporation Service Company and can be contacted at 1-866-403-5272. 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, Metro 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, Metro agrees not to seek an award of attorneys’ fees in arbitration even if an award is otherwise available under applicable law
These Terms, and any additional terms referenced therein, constitute the complete, final, and exclusive understanding between you and Metro 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 Metro with respect to the Device and Services. These Terms supplement and do not supersede any materials provided in the Device package by the manufacturer. Metro reserves the right to modify these terms at any time without prior notice in accordance with these Terms.
Metro 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 Metro’s prior written consent, which may be withheld at Metro’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.