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"Hi, this is Lexy!"
Lexy, Inc. ("Lexy") provides voice messaging, content sharing and audio listening services to networked devices, including phones and computers ("Services"). This Terms of Use Agreement ("Agreement") sets forth the terms and conditions of your use of the Services and, if you register for a full Lexy account with Web privileges, the Lexy software ("Software") as a registered Lexy subscriber ("Subscriber," "you" or "You") and your use of the Lexy website as a visitor. This Agreement incorporates by reference Lexy's privacy policy and any terms and conditions published by Lexy that are applicable to the use of additional features utilized by you.
Lexy may modify this Agreement from time to time and will notify you via your Lexy online account of any modified version of the Agreement and post the modified version on the Lexy website at www.Lexy.com. Modified versions of this Agreement shall be effective upon posting by Lexy following notification to you. You agree to be bound to any changes to this Agreement by using the Services or accessing the Lexy website after any such modified version is posted. Accordingly, you must review this Agreement regularly and after receiving notice of changes to ensure you are updated as to the then-current terms and conditions.
Your License to Use the Services and Software
To use the Services fully, you must set up an account. If you set up a Lexy account other than through www.Lexy.com (for example, through the phone or any future Lexy Widget), then, (i) you will not receive all rights and licenses granted in this Agreement (for example, rights to use Software) and Lexy will only provide you with certain features of the Services in its sole discretion notwithstanding anything to the contrary in this Agreement; and (ii) all rights and remedies afforded to Lexy in this Agreement shall apply. To obtain all account features, you must create a full access account by registering through www.Lexy.com or through direct registration methods as may be made available by Lexy.
Some data importation features require the use of Software. Subject to the terms and restrictions set forth in this Agreement, Lexy grants You a non-exclusive, non-transferable license when you set up a full access account, to: (a) download and install the Software on multiple computers and devices; and (b) use the Software for the sole purpose of accessing the Services. You may not use, copy, modify, or transfer the Software, in whole or in part, or reverse engineer, disassemble, decompile, modify or translate the Software, or otherwise attempt to derive the source code of the Software (collectively, "Software Limitations"), or use the Services except as expressly provided in this Agreement. You may use the Software and Services only for your personal use and may not share your account with a third party. The Software is licensed, not sold, to You for use only under the terms of this Agreement, and Lexy reserves all rights not expressly granted to You. Except for the foregoing license grant, this Agreement does not grant You any rights to patents, copyrights, trade secrets, trademarks, source code, or any other rights in respect to the Software or Services.
If You are located outside the U.S., the mobile features of the Service may not be available to You. You are responsible for complying with any local laws in its jurisdiction which might impact Your right to import, export or use the Software and/or Services, and You represent that You have complied with any regulations or registration procedures required by applicable law to make this license enforceable.
YOU AGREE THAT THE LICENSE GRANTED HEREIN MAY BE TERMINATED BY LEXY AT ANY TIME WITHOUT LIABILITY OR FURTHER OBLIGATION TO YOU. YOU ACKNOWLEDGE AND AGREE THAT LEXY MAY IN ITS SOLE DISCRETION, AND WITHOUT ANY LIABILITY TO YOU, DELETE OR REMOVE SOME OR ALL DATA AND MESSAGES STORED THROUGH THE SERVICES AND THAT YOU MAY NOT BE ABLE TO PORT SUCH DATA TO ANOTHER VERSION OF THE SERVICES.
Requirements to Use the Services
To take full advantage of the Services, you need to have a computer with Internet access and a mobile phone and wireless services with necessary wireless data features. You are solely responsible for all equipment and services (and related costs and expenses) necessary to use the Services. You acknowledge and agree that by using the Services You may incur charges from Your wireless carrier, depending upon Your wireless plan, as use of the Service involves use of mobile voice and data features which include SMS, email and Instant messaging notifications sent to you and by you through the Lexy service. You represent and agree that You: (a) are of legal age to form a binding contract, that You will comply with all applicable laws and regulations; (b) will provide and maintain true, accurate, current, and complete information about yourself when setting up an account; and (c) are uploading and/or sharing audio content on the Service for your personal communication purposes, and not for commercial use, and such use will not violate the rights or privacy of any other person or legal entity. You also understand and agree that the Services may include certain communications from Lexy, such as service announcements and administrative messages, and that these communications are considered part of Your membership and you will not be able to opt out of receiving them. Further, You agree that the Services may involve textual, graphic, and/or audio advertisements and that these advertisements are necessary for Lexy to provide the Services. You hereby authorize Lexy to import phone book data designated by you into your account and, to the extent that you import or authorize the importation of any such data from a third party, you represent and warrant that you have the right to provide such data to Lexy without violating any third party rights or agreements and that importation of such data is at your express authorization. Furthermore, you understand and agree to allow Lexy to share your reply contact information with those with whom you personally communicate, and that this phone book information will become part of these individuals' phone book contact data.
Limitations on Use
You acknowledge and agree that: (a) Lexy may limit the storage capacity for Your account and the size of messages; (b) any data, information, text or other communication, etc., which You receive or transmit using the Services may be accessed or intercepted, albeit without authorization from You or Lexy, and that Lexy is not liable for such unauthorized access; (c) You will only use the Service and/or Software for the sending, storing, receiving and listening to messages and audio content in accordance with the terms hereof, and will not use the same in any manner which may degrade the performance or availability of the Services provided to subscribers generally; (d) You will not use the Software or Services to store, send, create or distribute any images, sounds, messages or other material which are obscene, harassing, racist, malicious, fraudulent or libelous, or violate or infringe the rights (including but not limited to rights privacy or copyrights) of third parties; and (e) You will not use the Services for any activity that may be considered unethical or immoral, or to "spam" or send other such unsolicited mass e-mails, voicemails, or SMS messages. Unless authorized in writing by an officer of Lexy, (a) You will not use the Services or Software for commercial purposes, including but not limited to dissemination of any messages that contain advertising or any messages for political or promotional campaigns; (b) You will not resell or enable or allow the reselling of Lexy Services or Lexy accounts; (c) You will not create or use Lexy accounts for use by third parties; and (d) You will not provide access to the Lexy website or Lexy accounts through any mechanism, including but not limited to framing the Lexy website within another website or creating Lexy accounts associated with other accounts not managed by Lexy.
You will be solely liable for any transmissions sent using the Services and You agree that You are, and shall be, fully responsible for, and shall take all reasonable steps necessary in order to, establish and implement any and all measures needed to limit the control and/or access to Your handheld device, Your account with the Service, the Software, any related data or communications transmitted or received by You, as well as any related computer systems with which You use to connect to the Services (including, without limitation, the selection of passwords and the like. Lexy reserves the right in its sole discretion to (i) delete, move, or edit messages that it, in its sole discretion, deems to violate this Agreement, or (ii) take any other action that it deems necessary relating to use or misuse of the Service, including the right to suspend or terminate Your use of the Services. You hereby grant to Lexy a worldwide, non-exclusive, royalty-free license to use, publish, copy, modify, transmit, display and distribute messages and any contact information and/or data You provide to Lexy or authorize Lexy to obtain, in each case for the sole purpose of delivering the Service.
Lexy is under no obligation to provide You with maintenance, technical support or updates for the Software or Services. In no event shall Lexy be obligated to provide You a copy of the commercial release version of the Software or to provide access to a commercial version of the Services. Lexy is not obligated to make the Software or Services commercially available.
Feedback
You agree that any input or feedback you provide to Lexy, including but not limited to usability, bug reports and test results, with respect to the Software and/or Services shall be the property and confidential information of Lexy and may be used by Lexy for any purpose and you hereby assign all right, title and interest therein, including all intellectual property rights therein, to Lexy. Lexy provides no assurance that any specific errors or discrepancies in the Software or Service will be corrected.
Ownership
All right, title, and interest, including all intellectual property rights, in and to the Software and Services are owned by Lexy or its suppliers. The Software is protected by copyright and other intellectual property laws and by international treaties. You acknowledge such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with Lexy's or its suppliers' ownership of or rights with respect to the Software or provision of Service. Title and related rights in the content accessed through the Software are the property of the applicable content owner and are protected by applicable law. The licenses granted under this Agreement gives You no rights in or to such content other than as expressly set forth in this Agreement.
Term and Termination
This Agreement is effective until terminated. This Agreement will terminate immediately without notice to You upon the earlier of (i) Lexy's election to terminate this Agreement with You; or (ii) the posting of a new version of this Terms of Use on the Lexy website as set forth above, in which case the new Terms of Use shall apply to You, or (iii) Your breach or failure to comply with any term or condition of this Agreement. Lexy reserves the right to modify or terminate this Agreement, or any of its services and/or product offerings at any time without notice to You. Upon termination, the license granted herein shall cease, Your account and any associated data will be deleted, and You shall promptly destroy the Software or return the Software to Lexy. The following Sections shall survive termination or expiration of this Agreement: the Software Limitations and the provisions under the headings "Limitations on Use," "Feedback," "Ownership," "Term and Termination," "Disclaimer of Warranties," "Limitation of Liability," "Indemnification," and "General."
Site Content
All content that is made available to view, download and/or be shared in connection with the Lexy website ("Site") is the copyrighted work of and is owned by Lexy and/or its licensors, as applicable, and is protected by copyright laws and international treaty provisions. You may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit, any such content without the express written permission of Lexy and the copyright owner, other than in Your authorized use of the Service as defined in this agreement. The Site may contain links to third party web sites ("Linked Sites"). These Linked Sites are not under the control of Lexy and Lexy is not responsible for the availability, contents, or performance of any Linked Sites. Lexy is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by Lexy of the Linked Site or any association with its operators. You are responsible for viewing and abiding by the privacy statements and terms of use posted at the Linked Sites. You should direct any concerns regarding these third-party sites to those sites' administrators.
"Lexy" and the Lexy logo are trademarks of Lexy and are protected by law. All other names of companies and products mentioned may be trademarks of their respective owners. You may not copy, display or use any of these marks without prior written permission of the mark owner.
Disclaimer of Warranties
THE SOFTWARE AND SERVICES CONTAIN BETA FEATURES AND MAY BE CHANGED SUBSTANTIALLY BEFORE COMMERCIAL RELEASE. LEXY AND ITS SUPPLIERS PROVIDE THE SOFTWARE AND SERVICES AND SITE "AS IS" AND WITH ALL FAULTS, AND HEREBY DISCLAIM WITH RESPECT TO THE SOFTWARE AND SERVICES ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY (IF ANY) WARRANTIES, DUTIES OR CONDITIONS OF OR RELATED TO: MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, LACK OF VIRUSES, ACCURACY OR COMPLETENESS OF RESPONSES, RESULTS, WORKMANLIKE EFFORT AND LACK OF NEGLIGENCE. ALSO, THERE IS NO WARRANTY, DUTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LEXY OR ITS SUPPLIERS BE LIABLE FOR ANY DIRECT, SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, CONSEQUENTIAL OR OTHER DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR: LOSS OF PROFITS, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION, PERSONAL INJURY, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY (INCLUDING OF GOOD FAITH OR OF REASONABLE CARE), NEGLIGENCE, AND ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE AND/OR SERVICES AND/OR SITE OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF LEXY OR ANY SUPPLIER, AND EVEN IF LEXY OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
Indemnification
YOU AGREE TO INDEMNIFY, DEFEND AND HOLD LEXY AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, AND SUPPLIERS HARMLESS FROM AND AGAINST ALL CLAIMS, LIABILITIES, LOSSES, EXPENSES, DAMAGES AND COSTS, INCLUDING REASONABLE ATTORNEYS' FEES, RESULTING FROM (I) ANY VIOLATION OR BREACH OF THIS AGREEMENT BY YOU, (II) ANY ACTIVITY RELATED TO ACCESS TO OR USE OF YOUR ACCOUNT (INCLUDING NEGLIGENT OR WRONGFUL CONDUCT) BY YOU OR ANY OTHER PERSON ACCESSING OR USING THE SERVICES, OR (III) LEXY'S AUTHORIZED USE OF DATA PROVIDED BY YOU OR DATA OBTAINED BY LEXY AS AUTHORIZED BY YOU UNDER THIS AGREEMENT.
Licenses to Government Users
The Software is a "commercial item," as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End-Users acquire the Software with only those rights set forth herein.
General
This Agreement and the legal relations between the parties arising hereunder shall be governed by and interpreted in accordance with the laws of the State of California exclusively, as such laws apply to contracts between California residents performed entirely within California. You agree(s) that conflicts of laws principles of such laws and the United Nations Convention on Contracts for the International Sale of Goods (1980) and its successors are hereby excluded in their entirety from application to this Agreement. The parties hereby consent to the exclusive jurisdiction of and venue in the federal and/or state courts located in San Francisco County, California, for all claims arising out of or relating to this Agreement. Neither this Agreement nor any rights or obligations of You hereunder may be assigned by You in whole or in part without the prior written approval of Lexy. Any assignment in derogation of the foregoing shall be null and void. If any part of this Agreement is for any reason found to be invalid, illegal or unenforceable, all other parts nevertheless remain valid, legal and enforceable as long as a party's rights under this Agreement are not materially affected. In lieu of the unenforceable provision, the parties will substitute or add as part of this Agreement a valid, legal and enforceable provision that will be as similar as possible in economic and business objectives as were intended by the unenforceable provision. This Agreement sets forth the entire understanding and complete and exclusive statement of the agreement between Lexy and You which supersedes any proposal or prior agreement, oral or written, and any other communications between the parties in relation to the subject matter of this Agreement.
THE SOFTWARE IS PROTECTED BY UNITED STATES COPYRIGHT LAW AND INTERNATIONAL TREATY. UNAUTHORIZED REPRODUCTION OR DISTRIBUTION IS SUBJECT TO CIVIL AND CRIMINAL PENALTIES.