a driver safety application service from Driving Dynamics, Inc.
PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY BEFORE USING THE DRIVACTIV ISIGHT MOBILE PHONE APPLICATION.
As of December 2019
These Terms and Conditions (“Agreement”) governs the use of the Driving Dynamics, Inc. (“DD”) mobile phone application branded as the DrivActiv iSight driver safety application (the application). References to Driving Dynamics, Inc. and/or DD include our affiliates, agents, successors and assigns. By downloading/installing or using the application, you become a User. As such you, the User, (a) acknowledge that you have read and understand this Agreement; (b) can form legally binding contracts under applicable law and (c) accept this Agreement and agree that you are legally bound by its terms. The DrivActiv iSight driver safety application is licensed, not sold, to you. DD reserves the right to amend the presentation, configuration and/or content of the application, as well as any conditions required for access thereto and/or use thereof. Access to and use of the content and/or services after any revisions, amendments or changes in this Agreement will be deemed to be an acceptance thereof. To access the application after registration you must agree to these terms. If you do not agree to these terms, do not download, install or use the DrivActiv iSight driver safety application and delete it from your mobile phone.
The DrivActiv iSight driver safety application has been developed with the purpose of analyzing and improving the driving behavior of its users. The analysis and evaluation of said behavior performed by the DrivActiv iSight application aims to help users become better drivers. To use the DrivActiv iSight application, it is necessary to have a mobile phone in order to download the application and use the functionalities it offers. The application may be downloaded from the App Store (Apple users) and Google Play (Android users). Please consider that in order to use it, you need a compatible mobile phone and internet access and may also need to periodically update the application.
Depending on the requirements of the organization sponsoring access to the DrivActiv driver safety app , it can be set-up to incentivize users by means of free games, challenges, promotions and other functions that may be made available from time to time.
After opening an account, users will have access to their profile, where they may fill in their personal data. Furthermore, users may indicate whether they wish to receive a monthly report of their driving. The user guarantees that his/her data is accurate, truthful and up to date.
Registered users will be responsible at all times for the custody of their access password and will therefore assume any damages which may result from any undue use or from the assignment, disclosure or loss thereof. Users shall inform DD immediately if they have any reason to believe that their access code or password has been or may be used in a non-authorized way. In any event, any access to and/or use of the DrivActiv iSight driver safety application made under a registered user’s access code or password will be deemed to have been made by said user, who will be liable for any such access or use.
The DrivActiv iSight driver safety application includes a geolocation service. The purpose is to verify the location of the users and analyze, oversee, raise awareness and improve their driving ability, so that they may benefit from the advantages of being good drivers. Therefore, it is indispensable to activate the geolocation function of the mobile phone in order to benefit from all the functionalities of the application. If the user has not activated said geolocation functionality, he/she will receive a notice requesting that he/she do so.
By accepting these Terms and Conditions, the user accepts and consents expressly to the processing of his/her data for the purposes indicated above.
In any event, the user may choose to activate or deactivate the geolocation service of his/her mobile device or of the application functionality. However, he/she will need to activate this function again to benefit from the DrivActiv iSight driver safety application services.
The user undertakes to use the DrivActiv iSight driver safety application in accordance with the Law and these Terms and Conditions, and to refrain from using the DrivActiv iSight driver safety application for unlawful purposes or for purposes which are contrary to these Terms and Conditions. By entering and using the application, the user signifies his/her acceptance of these Terms and Conditions.
Should the user gain knowledge of the existence of any unlawful or illegal content which may involve an infringement of intellectual and/or industrial property rights, he/she shall notify DD immediately so that it may take any measures it may deem necessary.
The use of the DrivActiv iSight driver safety application for purposes other than as provided in these Terms and Conditions is expressly forbidden. In particular, it is prohibited to manipulate the application while the user is driving, all in accordance with the driving regulations applicable in the jurisdiction where the application is used. DD may not be held responsible for any such inappropriate use or manipulation of the DrivActiv iSight driver safety application.
The application may provide access to a wealth of texts, tables, drawings, designs, codes, software, photographs, images, expressions and information held by DD or third parties.
The user shall be liable for the use of the DrivActiv iSight driver safety application and undertakes to make a lawful, diligent, honest and correct use of any information and/or content he/she may have access to through the application, all in accordance with the principles of good faith and with full respect at all times for applicable law and these Terms and Conditions.
Without limitation, users shall refrain from:
DD shall be entitled to investigate and report any of the above-mentioned practices as provided for by Law, and to cooperate with the authorities in the investigation of said practices.
In our ongoing commitment to providing superior service for our customers, DD has introduced a new, more vigilant anti-spam policy. We have implemented the following policy as a part of our commitment to reducing spam related activity.
With the exception that in some cases may apply, an individual can only have one valid the DrivActiv iSight driver safety application account. When determined by the application that a given individual has more than one subscriber account as herein prohibited, the DrivActiv iSight driver safety application will proceed to the immediate termination of all duplicate accounts without notice and without any refund.
The use of the DrivActiv iSight driver safety application services in a way or form different than set forth in these Terms and Conditions is prohibited. Engaging in any prohibited use as set forth herein by a user constitutes a material breach of these Terms and Conditions and will subject user’s account to immediate termination without notice and without any refund.
DD will not be liable for any information, files or any other content published by the users and does not validate the content which the users may send. Therefore, DD may not be held directly, indirectly or jointly-and-severally liable for any damages resulting from the communications made or content included in the DrivActiv iSight driver safety application.
DD will not be liable for any of the following, without limitation:
Consequently, DD does not guarantee that the use given by users to the content and/or services included on the application will abide by these Terms and Conditions, nor that they will use said content and/or services diligently. DD cannot guarantee the identity of any other users of the DrivActiv iSight driver safety application.
DD reserves the right to admit and reject application users at its discretion. In particular, any user who does not comply with the provisions herein or makes an inappropriate use of the DrivActiv iSight driver safety application may be excluded from same. In this regard, DD reserves the right to suspend temporarily or expel any application user if it gains knowledge of the existence of well-founded claims or complaints made by any another user against said user.
DD reserves the right to (i) eliminate, suspend, edit or amend at its own discretion the content of the the DrivActiv iSight driver safety application, including, among other things, posts made by the user, at any time, without prior warning and on whatever grounds; and (ii) eliminate, suspend or block any use of application by the user.
DD also reserves the right to read, preserve, disclose and access any information if it considers it reasonably necessary to (i) comply with applicable law or with any judicial or governmental requirement or request; (ii) enforce the present Terms and Conditions, including facing potential infringements hereof; (iii) detect, prevent or deal with fraud or with security or technical problems; (iv) respond to assistance requests by the user; or (v) protect the rights, property and security the DrivActiv iSight driver safety application and its users.
However, DD hereby declares that it has adopted all measures necessary, within its possibilities and considering the state of technology, to guarantee the operation of the DrivActiv iSight driver safety application and prevent the existence and transfer of viruses and/or other harmful components to the users.
DD may suspend access to the DrivActiv iSight driver safety application temporarily and without prior warning in order to perform maintenance, repair, updating or improvement operations. In particular, DD reserves the right to eliminate, limit or prevent access to the application in the event of technical difficulties caused by facts or circumstances beyond DD’s control which, at its discretion, may reduce or annul standard security levels adopted for the proper operation of the DrivActiv iSight driver safety application
DD will not be liable for the unavailability, ineffective operation or lack of maintenance of the application, including, to the maximum extent permitted by applicable law, any liability for damages of any nature which may result from the unavailability or non-operation of the DrivActiv iSight driver safety application.
DD may not be held responsible for the cancellation or suspension of the services of application for causes which are not imputable to DD. In any event, DD undertakes to solve any problems which may arise and offer the user all the support necessary to reach a fast and satisfactory solution to the problem.
DD will not be liable for instances of force majeure, this term being understood as the failure, suspension or interruption of the services or the use of the DrivActiv iSight driver safety application as a consequence of the failure of the Internet network, third-party actions or omissions or any other causes or circumstances beyond the control of DD which may prevent a normal use of the application.
The DrivActiv iSight driver safety application may contain hyperlinks enabling the user to enter third-party platforms or websites. DD may not be held responsible for the content, information or services which may appear in said platforms. Said links shall be deemed to have been offered by DD for mere information purposes and in no event entail the acceptance or support of the content of the relevant platforms by DD or the existence of an agreement between DD and the individuals or entities holding said websites.
In such cases, DD will not be responsible for establishing the general and specific Terms and Conditions of use, provision and/or contracting of said services by third parties and, therefore, will not be liable for said services.
DD lacks the staffing and/or technical means to supervise, control and approve all the information, content, products and/or services provided by other web pages linked from the DrivActiv iSight driver safety application. Consequently, DD will not be liable for any elements of the web pages to which the application has a link, particularly, but not limited to, in connection with the operation, access to, data, information, files, quality and/or reliability of the products and/or services offered on said web pages, and with the links and/or any of the content therein.
However, in the event that DD becomes aware that the activities and/or information provided through said links is unlawful, offensive and/or liable to harm third-party goods and/or rights, DD will act with the diligence necessary to eliminate and/or render the relevant links useless as soon as possible.
Furthermore, should the users become aware of the unlawfulness of activities carried out through said third-party web pages, they shall notify DD immediately so that it may disable access to said pages.
All and any rights in the content, design and source code of the DrivActiv iSight driver safety application and, in particular, but not limited to, the photographs, images, texts, logos, designs, trademarks, brand names, data included in the application and any other intellectual and industrial property rights are held by DD and/or by third parties which have been contracted with DD to produce and/or deliver the DrivActiv iSight driver safety application in whole or part.
DD and/or any of its contracted third parties, responsible for producing and/or delivering the application in whole or part, do not grant any license or authorization to use any of their intellectual and industrial property rights or any other properties or rights related to the DrivActiv iSight driver safety application. Access to and navigation in the application by the user shall in no case be understood to entail a total or partial waiver, transfer, license or assignment of said rights by DD and contracted third parties.
Any use of the said content not previously authorized by DD will be considered a serious infringement of its intellectual or industrial property rights and will be prosecuted under the law.
Any terms and conditions published at the time when the user enters the DrivActiv iSight driver safety application shall be understood to be in force.
Should any provision herein be declared inapplicable or invalid, said provision will be eliminated or limited only to the extent necessary to enable the rest of the terms and obligations to remain fully effective and binding.
DD may eliminate, amend or replace the content herein at any time by publishing or sending a notice through the application or by email. In such case, the user will not be entitled to any compensation whatsoever.
User agrees to attempt to settle in good faith any dispute or claim that has or may arise between the parties, which arises out of or relates in any way to this Agreement or your use of the DrivActiv iSight driver safety application or its content, including, without limitation, any dispute or claim between you and DD by way of dispute notices which will be initiated upon written notice by any party to the other (the "Dispute Notice"). The Dispute Notice must describe the nature and basis of the claim and set forth the specific relief sought. If such claim cannot be resolved within thirty (30) days after the Dispute Notice is received, any party to the Dispute Notice may initiate an arbitration proceeding upon written notice to the other party in accordance with this Section 14. Any notice to DD under this Section 14 should be addressed to email@example.com ("Notice Address"). User agrees to arbitrate all claims that cannot be amicably resolved between you and DD.
As such, the parties hereby agree to submit to binding arbitration any bona fide dispute between them according to the terms specified in the preceding paragraph. The arbitration panel shall consist of one arbitrator agreed by the parties. However, if the parties are unable to agree upon the single arbitrator the arbitration panel shall consist of three arbitrators. The claimant shall appoint one arbitrator, and the respondent shall appoint one arbitrator. The two arbitrators so appointed shall appoint one neutral arbitrator who shall serve as chairperson. The arbitration hearing shall be held in Newark, New Jersey.
In the event that a party or parties have failed to appoint an arbitrator, or in the event that the two party-appointed arbitrators shall have failed to agree upon the appointment of the third neutral arbitrator, within sixty (60) days of the demand for arbitration, then the remaining arbitrator(s) shall be appointed by the American Arbitration Association. Costs of the arbitration, including attorney's fees, shall be paid by the parties in the manner that may be awarded by the arbitrators. The judgment and award of the arbitrators shall be in writing, and shall be final and binding upon the parties, enforceable in a court of competent jurisdiction.
User agrees that, by entering into this arbitration agreement, you and DD are each waiving their respective rights to a trial by jury or to participate in a class or representative action, and that arbitration of disputes pursuant to this Section 14 shall be in User’s individual capacity.
This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to: (a) claims arising out of or relating to any aspect of your relationship with DD, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; and (b) claims that could be alleged as class action claims (and you agree to waive the right to participate in a class action in accordance with this Section 14).
THE DRIVACTIV ISIGHT DRIVER SAFETY APPLICATION, INCLUDING ALL CONTENT, SERVICES, FUNCTIONS, SOFTWARE, MATERIALS AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH THE APPLICATION, IS PROVIDED ON AN "AS IS, AS AVAILABLE" BASIS, AND DD DOES NOT OFFER MAINTENANCE OR SUPPORT SERVICES FOR ANY PORTION OF THE SITE, INCLUDING THE APPLICATION. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER FOR THE CONTENT ON THE SITE OR THE SERVICES, INFORMATION, FUNCTIONS AND MATERIALS AVAILABLE THROUGH THE SITE, FOR ANY SERVICES OR PRODUCTS OR HYPERTEXT LINKS TO THIRD PARTIES OR FOR ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION THROUGH THE SITE OR ANY LINKED SITE. FURTHER, WE EXPRESSLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, NON-INFRINGEMENT, TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SITE OR ANY SERVICES, CONTENT OR MATERIALS CONTAINED THEREIN WILL MEET YOUR NEEDS, BE COMPLETE OR ACCURATE, BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE OR THE SERVER THAT MAKES IT AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY MATERIAL OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE IS DONE AT USER'S OWN DISCRETION AND RISK, AND USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO USER'S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA. NO INFORMATION OBTAINED BY USER THROUGH THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
If any provision of this Agreement contained herein is deemed to be unlawful, void, or for any reason unenforceable, that provision will be severable and not affect the validity and enforceability of the remaining provisions. The terms, conditions and any other referenced policies constitute the entire agreement between you, the User, and DD relating to your use of the application and content. Section headings are for convenience only and have no legal or contractual effect. If any provision of these terms or any other policies or other terms incorporated herein shall be found to be unenforceable, the other provisions shall still remain in full force and effect.
DrivActiv iSight trademark pending. Serial number 88823303