The website located at www.rexly.com (the "Site") is a copyrighted work belonging to Rexly, Inc. ("Rexly", "us", "our", and "we"). Rexly provides the Rexly online service that allows you to let your friends know which of your iTunes library items you're listening to or viewing and to see what your friends are listening to or viewing (collectively, with all other services provided through the Site, the "Services") and the Rexly software application for use with the Services ("Licensed Software""). Certain features of the Services or Site may be subject to additional guidelines, terms, or rules, which will be posted on the Service or Site in connection with such features. All such additional terms, guidelines, and rules are incorporated by reference into this Agreement.
THESE TERMS OF USE ("AGREEMENT") SETS FORTH THE LEGALLY BINDING TERMS FOR YOUR USE OF THE SITE, SERVICES, AND LICENSED SOFTWARE. BY ACCESSING OR USING THE SITE, SERVICES, AND LICENSED SOFTWARE, YOU ARE ACCEPTING THIS AGREEMENT AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT. YOU MAY NOT ACCESS OR USE THE SITE, SERVICES, AND LICENSED SOFTWARE OR ACCEPT THE AGREEMENT IF YOU ARE NOT AT LEAST 18 YEARS OLD. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THIS AGREEMENT, DO NOT ACCESS AND/OR USE THE SITE, SERVICES, AND LICENSED SOFTWARE.
1. ACCOUNTS. To use certain aspects of the Services, you must login with your Facebook account ("Account"). Your Account is provided by Facebook, not us, and is subject to Facebook's separate terms and conditions. You will promptly update all Account information to keep it true, accurate, and complete. You will be responsible for all activities that occur under your Account, user name, and password and therefore you agree to keep your password confidential. You agree to notify us immediately of any unauthorized use of your user name or password or if you believe that your password is no longer confidential. You will not: (a) provide any false personal information as part of your Account information or in connection with the Services; (b) use more than one Account at any given time; (c) transfer your Account to anyone else; (d) permit others to use your Account; or (e) use or access other persons' Accounts.
2. PROPRIETARY RIGHTS
2.1 License. Subject to the terms of this Agreement, Rexly grants you a non-transferable, non-exclusive, license to (i) use the Site and Services for your personal, noncommercial use and (ii) install and execute the Licensed Software solely for use on your personal computer in conjunction with the Services and solely for your personal, non-commercial purposes.
2.2 Certain Restrictions. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Site, Services, or Licensed Software; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site, Services, or Licensed Software; (c) you shall not introduce software or automated agents or scripts to the Site or Services so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Site or Services; (d) you shall not access the Site or Services in order to build a similar or competitive service; and (e) except as expressly stated in Section 2.1, no part of the Site, Services, or Licensed Software may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Site, Services, and Licensed Software shall be subject to the terms of this Agreement. All copyright and other proprietary notices on any Site or Services content must be retained on all copies thereof.
2.3 Modification. Rexly reserves the right, at any time, to modify, suspend, or discontinue the Site or Services or any part thereof with or without notice. You agree that Rexly will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Site or Services or any part thereof.
2.4 Ownership. Excluding your User Content (defined below), you acknowledge that all the intellectual property rights, including copyrights, patents, trade marks, and trade secrets, in the Site, Services, and the Licensed Software are owned by Rexly or Rexly's licensors. The provision of the Site, Services, and Licensed Software does not transfer to you or any third party any rights, title or interest in or to such intellectual property rights. Rexly and its suppliers reserve all rights not granted in this Agreement. The Licensed Software and all copies thereof are licensed to you, not sold, under this Agreement.
3. USER CONTENT
3.1 User Content. "User Content" means any and all information and content that a user submits to, or uses with, the Site or Services (e.g., content in the user's profile or postings). You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that makes you or any third party personally identifiable. You hereby represent and warrant that your User Content does not violate the Acceptable Use Policy (defined below). You may not state or imply that your User Content is in any way provided, sponsored or endorsed by Rexly. Because you alone are responsible for your User Content (and not Rexly), you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy. Rexly is not obligated to backup any User Content and User Content may be deleted at anytime. You are solely responsible for creating backup copies of your User Content if you desire.
3.2 License. You hereby grant, and you represent and warrant that you have the right to grant, to Rexly an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your User Content, and to grant sublicenses of the foregoing, solely for the purposes of including your User Content in the Site and Services. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
3.3 Feedback. If you provide Rexly any feedback or suggestions regarding the Site, Services, or the Licensed Software ("Feedback"), you hereby assign to Rexly all rights in the Feedback and agree that Rexly shall have the right to use such Feedback and related information in any manner it deems appropriate. Rexly will treat any Feedback you provide to Rexly as non-confidential and non-proprietary. You agree that you will not submit to Rexly any information or ideas that you consider to be confidential or proprietary.
3.4 Privacy. Rexly collects your personally identifiable information in connection with the Services. You expressly consent to Rexly's collection, use, and disclosure of such information in accordance with Rexly's Privacy Policy www.rexly.com/privacy ("Privacy Policy").
4. ACCEPTABLE USE POLICY. The following sets forth Rexly's "Acceptable Use Policy":
4.1 You agree not to use the Site or Services to collect, upload, transmit, display, or distribute any User Content (a) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another's privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive (e.g., material that promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual) or otherwise objectionable material of any kind or nature or which is harmful to minors in any way; or (c) in violation of any law, regulation, or obligations or restrictions imposed by any third party.
4.2 In addition, you agree not to use the Site or Services to: (a) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data; (b) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (c) harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (d) interfere with, disrupt, or create an undue burden on servers or networks connected to the Site or Services or violate the regulations, policies or procedures of such networks; (e) attempt to gain unauthorized access to the Site or Services, other computer systems or networks connected to or used together with the Site or Services, through password mining or other means; or (f) harass or interfere with another user's use and enjoyment of the Site or Services.
4.3 We reserve the right (but have no obligation) to review any User Content, investigate, and/or take appropriate action against you in our sole discretion (including removing or modifying your User Content, terminating your Account in accordance with Section 9, and/or reporting you to law enforcement authorities) if you violate the Acceptable Use Policy or any other provision of this Agreement or otherwise create liability for us or any other person.
5. INDEMNITY. You agree to indemnify and hold Rexly (and its officers, employees, and agents) harmless, including costs and attorneys' fees, from any claim or demand made by any third party due to or arising out of (i) your use of the Site, Services, or Licensed Software, (ii) your User Content, (iii) your violation of this Agreement; or (iv) your violation of applicable laws or regulations. Rexly reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Rexly. Rexly will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
6. THIRD PARTY SITES & ADS; OTHER USERS
6.1 Third Party Sites & Ads. The Site might contain links to third party websites, services, and advertisements for third parties (collectively, "Third Party Sites & Ads"). Such Third Party Sites & Ads are not under the control of Rexly and Rexly is not responsible for any Third Party Sites & Ads. Rexly provides these Third Party Sites & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Sites & Ads. You use all Third Party Sites & Ads at your own risk. When you link to a Third Party Site & Ad, the applicable third party's terms and policies apply, including the third party's privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third Party Sites & Ads.
6.2 Other Users. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content and we make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content, and we assume no responsibility for any User Content. Your interactions with other Site or Services users are solely between you and such user. You agree that Rexly will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any Site or Services user, we are under no obligation to become involved.
6.3 Release. You hereby release and forever discharge us (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any interactions with, or act or omission of, other Site or Services users or Third Party Sites & Ads. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
7. DISCLAIMERS. THE SITE, SERVICES, AND LICENSED SOFTWARE ARE PROVIDED "AS-IS" AND "AS AVAILABLE," AND WE (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SITE, SERVICES, OR LICENSED SOFTWARE: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
8. LIMITATION ON LIABILITY. IN NO EVENT SHALL WE (AND OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF, OR INABILITY TO USE, THE SITE, SERVICES, OR LICENSED SOFTWARE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITE, SERVICES, AND LICENSED SOFTWARE ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA RESULTING THEREFROM. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR (AND OUR SUPPLIERS') LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO FIFTY US DOLLARS ($50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU, AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
9. TERM AND TERMINATION. Subject to this Section, this Agreement will remain in full force and effect while you use the Site, Services, or Licensed Software. We may (a) suspend your rights to use the Site and/or Services (including your Account) or (b) terminate this Agreement, at any time for any reason at our sole discretion, including for any use of the Site, Services, or Licensed Software in violation of this Agreement. Upon termination of this Agreement, your Account and right to access and use the Site, Services, and Licensed Software will terminate immediately. You understand that any termination of your Account involves deletion of your User Content associated therewith from our live databases. Rexly will not have any liability whatsoever to you for any termination of this Agreement, including for termination of your Account or deletion of your User Content. Even after this Agreement is terminated for any reason, the following provisions of this Agreement will remain in effect: Sections 2.2, 2.3, 2.4, and 3 through 11.
10. COPYRIGHT POLICY. Rexly respects the intellectual property of others and asks that users of our Site and Services do the same. In connection with our Site and Services, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online Site and Services who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Site and Services, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent:
1. your physical or electronic signature;2. identification of the copyrighted work(s) that you claim to have been infringed;
3. identification of the material on our services that you claim is infringing and that you request us to remove;
4. sufficient information to permit us to locate such material;
5. your address, telephone number, and e-mail address;
6. a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
7. a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney's fees incurred by us in connection with the written notification and allegation of copyright infringement.
The designated Copyright Agent for Rexly is:
Designated Agent: Joel Ethan Resnicow
Address of Agent: 1540 Lombard St., Unit A, San Francisco, CA 94123
Telephone: 917-267-8487
Fax: 212-709-0248
Email: joel@rexly.com
11. GENERAL
11.1 No Support or Maintenance. You acknowledge and agree that Rexly will have no obligation to provide you with any support or maintenance in connection with the Site, Services, or Licensed Software.
11.2 Changes to Agreement. This Agreement is subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any) and/or by prominently posting notice of the changes on our Site. Any changes to this Agreement will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Site or Services. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Continued use of our Site or Services following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
11.3 Dispute Resolution.
(a) Governing Law. This Agreement shall be governed by the laws of the State of California without giving effect to any conflict of laws principles that may require the application of the law of another jurisdiction. Any action or proceeding relating to a claim must be brought in a federal or state court located in San Francisco, California and each party irrevocably submits to the exclusive jurisdiction and venue of any such court in any such action or proceeding.
(b) Contact Rexly First. If a dispute arises between you and Rexly, our goal is to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide you with a neutral and cost effective means of resolving the dispute quickly. You agree that you will notify us about any dispute you have with Rexly regarding our Site, Services, or Licensed Software by emailing support@rexly.com.
(c) Alternative Dispute Resolution. You and Rexly agree that we will resolve any claim or controversy at law or equity that arises out of or relates to this Agreement or the Site, Services, or Licensed Software (a "claim") in accordance with this Section 11.3. Notwithstanding anything to the contrary, (i) for any claim where the total amount of the award sought is less than $10,000 USD, the party requesting relief may choose to resolve the dispute through binding non-appearance-based arbitration in accordance with the following: (a) the arbitration will be provided through a nationally-recognized alternative dispute resolution provider mutually agreed upon by the parties; (b) the arbitration will be conducted in one or more of the following manners at the option of the party initiating arbitration: telephone, online, or written submissions; (c) the arbitration will not involve any personal appearances by the parties or witnesses unless otherwise agreed by the parties; and (d) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction; and (ii) Rexly may seek injunctive relief in any court having jurisdiction to protect its intellectual property or confidential or proprietary information.
(d) Improperly Filed Claims. All claims between you and Rexly must be resolved in accordance with this Section 11.3. All claims filed or brought contrary to this Section shall be considered improperly filed. Should you file a claim contrary to this Section, Rexly may recover attorney fees and costs up to $1,000, provided that Rexly has notified you in writing of the improperly filed claim, and you fail to promptly withdraw the claim. Similarly, should Rexly file a claim contrary to this Section, you may recover attorneys fees and costs up to $1,000, provided that you have notified Rexly in writing of the improperly filed claim, and Rexly fails to promptly withdraw the claim. The remedies in this subsection will not limit any other remedies that either party may have in law or in equity.
11.4 Entire Agreement. This Agreement constitutes the entire agreement between you and us regarding the use of the Site, Services, and Licensed Software. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word including means including without limitation. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to Rexly is that of an independent contractor, and neither party is an agent or partner of the other. You acknowledge that the Service, Site, and Licensed Software contains valuable trade secrets and proprietary information of Rexly, that any actual or threatened breach of Section 2.2 (Certain Restrictions) or 2.4 (Ownership) of this Agreement will constitute immediate, irreparable harm to Rexly for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Rexly's prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement shall be binding upon assignees.
11.5 Compliance with Laws. You acknowledge that the laws and regulations of the United States restrict the export and re-export of commodities and technical data of United States origin, including the Licensed Software. You agrees that you will not export or re-export the Licensed Software in any form in violation of the export or import laws of the United States or any foreign jurisdiction.
11.6 U.S. Government End Users. If you are, or represent, a branch or agency of the United States Government, the following provision applies. The Licensed Software is comprised of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212 and are provided to the Government (i) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (ii) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3
11.7 Disclosures. Rexly is located at 120 2nd Street, Suite 301, San Francisco, CA 94123. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
11.8 Copyright/Trademark Information. Copyright © 2011, Rexly, Inc. All rights reserved. All trademarks, logos and service marks ("Marks") displayed on the Site or Services are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks. Last revised on: 2/8/2011
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