PLEASE CAREFULLY READ THIS APPLICATION END USER LICENSE AGREEMENT ("AGREEMENT") BEFORE DOWNLOADING, ACCESSING, ACTIVATING, REGISTERING FOR, OR OTHERWISE USING THE "LEXUS ENFORM APP SUITE" APPLICATION OR ITS RELATED SERVICES OR CONTENT (THE "APPLICATION"). IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, INCLUDING THE INFORMATION COLLECTED, USED, TRANSMITTED OR RETAINED BY THIS APPLICATION, DO NOT DOWNLOAD, ACCESS, ACTIVATE OR REGISTER FOR THE APPLICATION. BY CLICKING ON THE "DOWNLOAD" BUTTON OR USING THE APPLICATION, YOU AGREE TO BE BOUND BY THIS AGREEMENT, AND REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT. THE APPLICATION IS OWNED OR LICENSED AND OPERATED BY LEXUS, A DIVISION OF TOYOTA MOTOR SALES, USA "LEXUS", WITH A BUSINESS ADDRESS AT 19001 SOUTH WESTERN AVENUE, TORRANCE CALIFORNIA 90501, AND/OR ITS THIRD-PARTY PROVIDERS. REFERENCE TO "LEXUS" IN THIS AGREEMENT INCLUDES TOYOTA MOTOR SALES, U.S.A., INC. PARENT COMPANY AND ITS AFFILIATES. YOUR ACCESS TO AND USE OF THE APPLICATION IS SUBJECT TO THIS AGREEMENT AND ALL APPLICABLE LAWS.
1. Installation. You may install the Application on your compatible mobile device by following the installation instructions available from the App Store or Google Play, as applicable.
2. Registration. In order to use the Application, you will need to register at www.lexusenformappsuite.com. You cannot use the Application on your mobile device without registering at www.lexusenformappsuite.com. Once you register, you will be able to use the Application. There is no activation fee or monthly recurring fee required. If you do not desire to continue using the Application, you have the right to cancel your registration at any time.
4. Unauthorized Use. You are responsible for your (and any authorized third parties) use of the Application in compliance with this Agreement. You acknowledge and agree that any use of the Application occurring through your installed Application shall be deemed to be your actions and that the Lexus Parties (as defined below) may rely upon such actions. You are solely responsible for protecting the security of the installed Application on your mobile device.
5. Uninstalling the Application. To uninstall the Application from your mobile device, follow the directions within the instruction guide for your mobile device. If you uninstall the Application from your mobile device, you will not be able to use the Application via your Lexus Vehicle's multimedia system. You may also de-register via the www.lexusenformappsuite.com website; if you de-register, you will not be able to use the Application via your Lexus Vehicle's multimedia system.
6. Updates to the Application. The Application may be updated by your dealer when your Vehicle is being serviced, or it may be updated remotely by Lexus from time to time. The Application may be updated for certain reasons, including, without limitation, to increase Application functionality, to patch or improve Application stability, new versions, and the like (collectively, "Updates"). By installing and registering for the Application, you agree to such automatically requested and received remote Updates, and that such Updates are subject to this Agreement.
1. Information Collected via the Application. When you register for use of the Application via www.lexusenformappsuite.com, you will need to provide your name, email address, and vehicle identification number ("VIN"). You may also provide your mobile telephone number, which, if provided, will enable you to use OpenTable® from the multimedia system in your compatible Lexus Vehicle. If you provide your mobile telephone number, you hereby agree to receive text and other messages via your mobile device, if you have opted in to receive such messages. This information is collected to complete the Application registration process, to create your account, to ensure that your vehicle is compatible for use of the Application via the Lexus Vehicle's multimedia system. Further details regarding collection and use of your personal information and vehicle data are provided http://www.lexus.com/privacyvts. The Vehicle's multimedia system operates as a display monitor only, and the data you see is obtained from your mobile device. Please see section 5 for Vehicle Travel Information.
2. Information Storage. Depending on the type of multimedia system you have in your Lexus Vehicle, certain information may be stored for ease of use of the Application via the Lexus Vehicle's multimedia system (e.g., search history, location history in certain applications, previous and saved destinations (entered via your use of the GPS functionality of the Lexus Vehicle's multimedia system), map locations within certain applications, and device numbers that are called via the Lexus Vehicle's multimedia's Bluetooth connection).
5. Vehicle Travel Information. You acknowledge that your Vehicle is equipped with a traffic feature. The traffic feature will automatically collect and transmit, through GPS technology, your Vehicle's current location (longitude and latitude), travel direction and speed ("Vehicle Travel Information") to Lexus, including its Third Party Service Providers, in five minute increments. The Vehicle Travel Information is used by Lexus's Third Party Service Provider to provide real time traffic information to you. The Vehicle Travel Information contains no personally identifiable information and cannot be tracked to you or your Vehicle Identification Number ("VIN").
6. User Voice Commands. You acknowledge and understand that Lexus, including its Third Party Service Providers, may record and retain user voice commands once you've initiated contact with your Lexus Enform App Suite Application. Your personally identifiable information will not be associated with such voice command recordings. Therefore, for yourself, your Vehicle's occupants and anyone using the Lexus Enform Application in your Vehicle, you consent to all such recording and retention of voice commands and release Lexus and third-party beneficiaries from claims, liabilities and losses that may result from any such recorded voice commands.
1. Account Activation and Information. You will be required to register and activate an account on www.lexusenformappsuite.com in order to use the Application via your mobile device and/or Lexus Vehicle multimedia system. If you register on the www.lexusenformappsuite.com website, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the www.lexusenformappsuite.com website, and (b) as permitted, maintain and promptly update such information to keep it true, accurate, current and complete. If you provide any information to Lexus that is false, inaccurate, outdated or incomplete, or if Lexus has reasonable grounds to suspect that such information is false, inaccurate, outdated or incomplete, Lexus has the right to suspend or terminate your account and to prohibit any and all current or future use of the Application (or any portion thereof) by you.
2. Account Password. If you register an account for use of the Application, you will create a password while completing the registration process. You are responsible for maintaining the confidentiality of the password and account and other account or service codes issued to you, and are fully responsible for all activities that occur under your password or account. You agree not to use the account or password of another registered user without permission or to disclose your password to any third party. You agree to immediately notify Lexus of any unauthorized use of your password or account or any other breach of security. The Lexus Parties (defined below) cannot and will not be liable for any loss or damage arising from your failure to comply with this section.
3. Account Management. You may access, review and revise your information, add secondary users see account status, and otherwise update your account at any time by logging into your account via the www.lexusenformappsuite.com website.
1. copy, download, distribute, modify, publish, sell, license, use, reuse, or create derivative works of the Application or any of the content or other material within the Application, including without limitation, the Lexus name, logos, and any other trademark of the Lexus Parties (as defined below), or those of any of the applications within the Application, except solely to use the Application in accordance with its instructions;
2. access or use this Application in any way that could or is intended to damage or impair the operation of this Application, or any content of or material displayed in this Application, or any server or network underlying this Application, or interferes with anyone else's use and enjoyment of this Application;
3. access or attempt to access any data, information, system, or servers on which this Application is hosted or modify or alter this Application in any way;
4. use the Application for any commercial or unlawful purpose, or in violation of any third party rights;
5. use the Application in violation of any applicable traffic regulations and driver distraction laws, rules and regulations; or
Lexus reserves the right to suspend or terminate your participation in the Application if you are found to be in violation of this Agreement.
In the event of any failure of the application to conform to any applicable warranty, if downloaded from the apple app store, the end-user may notify apple, and apple will refund the purchase price (if any) for the application to that end-user, and to the maximum extent permitted by applicable law, apple will have no other warranty obligation whatsoever with respect to the application, and any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be Lexus's responsibility (if not effectively disclaimed).
To the extent jurisdictions do not allow the exclusion of certain warranties, some of the above exclusions may not apply to you.
You and Lexus are each waiving important rights.Limitations of Liability by Lexus.
Lexus cannot recover from you (1) punitive damages, (2) treble, consequential, indirect, or special damages, or (3) attorney's fees.
Neither Lexus nor any Third Party Service Provider or beneficiary will be liable to you or any other party for consequential, indirect, incidental, special, or punitive damages (including without limitation lost profits) in connection with the Services, even if Lexus or Third Party Service Provider or Beneficiary is aware of the possibility of such damages. These limitations apply to all claims, including, without limitation, claims in contract and tort (such as negligence, product liability and strict liability). To the extent that a state does not permit the exclusion or limitation of liability as set forth herein our liability is limited to the maximum extent permitted by law in such states.
If Lexus or its Third Party Service Provider or beneficiary are found liable to you for any reason you agree that the aggregate liability of all these parties to you for any claim is limited to amount fifty cents ($.50). Neither Lexus nor any Third Party Service Provider or beneficiary would have agreed to provide the Services to you if you did not agree to this limitation. This amount is the sole and exclusive liability of Lexus and the Third Party Service Provider or beneficiary to you, and is payable as liquidated damages and not as a penalty. Except where prohibited by law, you may not bring any claim against Lexus or any third-party beneficiary more than two (2) years after the claim arises. We do not have any liability for application interruptions of any length.
For yourself and for anyone else claiming under you, you agree to release and discharge Toyota Motor Sales, USA, Inc. and its Third Party Service Providers, their parents, affiliates, and subsidiaries, and the respective officers, directors, and employees, and each third-party beneficiary from all claims, liabilities and losses in connection with the Application, including, but not limited to claims for personal injury or property damage arising from the total or partial failure of performance of the Services, even if caused by or based upon the negligence, gross negligence, strict products liability, Deceptive Trade Practices Act violations, bad faith, or breach of warranty of us or the malfunction of the System. YOU AGREE TO INDEMNIFY LEXUS AND EACH THIRD-PARTY BENEFICIARY AGAINST ALL SUCH CLAIMS, LIABILITIES AND LOSSES BROUGHT BY THIRD PARTIES. You further agree that this release extends to any party claiming under you and that no insurance company will have any right of subrogation.
You understand that the uploading of information to your mobile device and/or your Lexus Vehicle's multimedia system in connection with this application is at your own risk and that Lexus is not responsible for unauthorized access to or use of any personal or other information. All information uploaded to the application may be stored on your mobile device (and/or your Lexus Vehicle's multimedia system as described herein) and you understand that the security and safety of your mobile device and your Lexus Vehicle's multimedia system is your sole responsibility.
You agree that, apart from any claim you may bring in small claims court, the sole and exclusive forum and remedy for any and all disputes and claims that cannot be resolved informally and that relate in any way to or arise out of your use of the Services or relating to this Agreement or any prior agreement for service with us or any of our affiliates, predecessors in interest, or Third Party Service Providers or any product or service provided under or in connection with this Agreement or such a prior agreement, or any advertising for such products or Services, shall be final and binding arbitration, except to the extent that you have in any manner infringed upon or violated or threatened to infringe upon or violate any patent, copyright, trademark, trade secret, privacy or publicity rights, in which case you acknowledge that there is no adequate remedy at law and that injunctive or other appropriate relief may be sought by us and/or an applicable third party either in court or from an arbitrator. You and we acknowledge that this Agreement affects interstate commerce and that the Federal Arbitration Act and other federal arbitration law apply to arbitrations under this Agreement (despite any other choice of law provision). To the extent that the Federal Arbitration Act and federal arbitration law do not supply substantive law necessary for the resolution of any disputes or claims, the laws of the State of Texas shall apply, except that Texas laws concerning choice of law or conflicts shall not apply if they would cause the substantive law of another jurisdiction to apply. To the extent that the parties litigate any part of any dispute or claim in court, including, without limitation, obtaining provisional remedies in aid or arbitration, confirmation of an award, and judgment enforcement, the laws of the State of Texas shall apply, except that Texas laws concerning choice of law or conflict of laws shall not apply if they would cause the substantive law of another jurisdiction to apply.
For claims over $10,000, the American Arbitration Association's Wireless Industry Arbitration ("WIA") rules shall apply. In large/complex cases under the WIA rules, the arbitrators must apply the Federal Rules of Evidence and the losing party may have the award reviewed by a panel of three new arbitrators.
For claims of $10,000 or less, arbitration will be conducted by the American Arbitration Association ("AAA"), the Better Business Bureau ("BBB") or the National Arbitration Forum ("NAF"). You can choose the AAA's supplementary procedures for consumer related disputes, the NAF rules for Consumer Common Claims, or the BBB's rules for binding arbitration. We will waive our right to arbitrate any individual (as opposed to class) claim you bring or maintain in small claims court for so long as the matter remains an individual claim and remains in small claims court.
You can get rules and fee information from the AAA (www.adr.org), the NAF (www.adrforum.com) or the BBB (www.bbb.org). You expressly waive the right to request or maintain any class arbitrations even if AAA, NAF or BBB procedures or rules would permit them (this is referred to below as the "Class Action Waiver"). In exchange for this, we'll pay (if you ask us in advance) for any filing fee charged you by the AAA, NAF or BBB for one arbitration of any disputes between us, so long as you tried in good faith to resolve the disputes with us before filing for arbitration. If the arbitration proceeds past the filing, we'll also pay (if you ask us at the time) any further administrative and arbitrator fees you are later charged. An arbitrator can decide later whether to allocate the fees differently if there's an award. The arbitrator may award you any fees and charges that are necessary to ensure the enforceability of this arbitration provision.
There's no judge or jury in arbitration, and review is limited, but an arbitrator can award the same damages and relief, and must honor the same limitations in this Agreement as a court would. You and we agree to pay our own fees, costs, and expenses, including those for any attorneys, experts, and witnesses. You agree that any claim for or award of attorneys' fees, including any such claim or award pursuant to Chapter 38 of the Texas Civil Practice and Remedies Code, is waived.
Any arbitration award made after completion of an arbitration is final and binding and may be confirmed in any court of competent jurisdiction, except that in the event the arbitrator's award for a party is $0 or against a party is in excess of $100,000, or includes an award of injunctive relief against a party, that party may request a new arbitration to be conducted by the selected arbitration organization by a three-arbitrator panel. An award and any judgment confirming it only applies to the arbitration in which it was awarded and can't be used in any other case except to enforce the award itself.
If a court or arbitrator determines that any part of this arbitration agreement other than the Class Action Waiver is not enforceable, the rest of this arbitration agreement shall be enforceable.
If for some reason these arbitration requirements don't apply, or a claim proceeds in small claims court, each of you and we waive to the fullest extent permitted by law any trial by jury. In no event shall any claim, action or proceeding by you related in any way to the Services, this Agreement, or any prior agreement, as described above, be instituted more than two (2) years after the claim or cause of action arose. This Agreement to arbitrate survives the end of the contractual relationship between us.