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Fisher-Price Kid-Tough™ FP3™ Player Software End User License Agreement
PLEASE READ THIS END USER SOFTWARE LICENSE AGREEMENT (“EULA”) CAREFULLY BEFORE USING OR INSTALLING THE FISHER-PRICE KID-TOUGH™ FP3™ PLAYER SOFTWARE. YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS EULA, AS WELL AS THE FISHER-PRICE KID-TOUGH™ FP3™ PLAYER CONTENT LICENSE AGREEMENT, AND THE FISHER-PRICE ONLINE PRIVACY POLICY, ALL OF WHICH CAN BE ACCESSED USING THE SOFTWARE. IF YOU DO NOT AGREE TO BE BOUND BY THIS EULA, THE FISHER-PRICE ONLINE PRIVACY POLICY AND THE FISHER-PRICE KID-TOUGH™ FP3™ PLAYER CONTENT LICENSE AGREEMENT DO NOT USE OR INSTALL THIS SOFTWARE. IF THIS SOFTWARE WAS INCLUDED WITH A KID-TOUGH™ FP3™ PLAYER AND YOU CHOOSE NOT TO AGREE TO THESE TERMS, YOU MAY RETURN THE KID-TOUGH™ FP3™ PLAYER IN ACCORDANCE WITH POLICIES OF THE STORE FROM WHICH YOU PURCHASED THE KID-TOUGH™ FP3™ PLAYER.
This software includes capabilities to reproduce materials. It is licensed solely for legal purposes, such as reproduction of non-copyrighted materials, materials in which you own the copyright, or materials you are authorized or legally permitted to reproduce. If you are uncertain about your right to copy certain materials, you should contact legal counsel.
1. Definitions
1.1 “Software” shall mean Fisher-Price’s Kid-Tough™ FP3™ Player Software.
1.2 “Company” shall mean Fisher-Price, Inc.
1.3 “Store” shall mean the Fisher-Price Online Content Store operated by Digital River, Inc., which provides digital downloads accessible by using the Software.
1.4 “Privacy Policy” shall mean the Fisher-Price Online Privacy Policy, which is made available using the Software.
1.5 “Player” shall mean the Fisher-Price Kid-Tough™ FP3™ Player.
1.6 “Content License” shall mean the agreement governing your purchase and use of Content, a current version of which is available using the Software.
1.7 “Content” shall mean songs or audio story books or other content available for download from the Store and the songs that are included with the Player.
1.8 “Legal Documents” shall mean this EULA, the Fisher-Price Online Privacy Policy and the Fisher-Price Kid-Tough™ FP3™ Player Content License Agreement.
2. General: The Software and documentation accompanying this EULA whether on disk, read only memory, or any other media or form, are licensed, not sold, to you by Company for use only under the terms of the Legal Documents. The terms of this EULA apply to any software or firmware upgrades provided by Company, unless superseded by a new license accompanying such upgrade or as posted in the Legal Documents section of the Store, in which case the new license will govern.
3. License Grant: Subject to your agreement to the terms and conditions set forth in the Legal Documents, Company grants to you a personal, non-exclusive and non-transferable license, with no right to grant sublicenses, to:
3.1 install the Software on a computer, solely in machine-executable form, up to five (5) times;
3.2 use the Software in accordance with the terms and conditions set forth in the Legal Documents, in each instance, solely for your own personal and private non-commercial use and not for any other purpose (including, without limitation, any act of electronic or physical distribution or re-distribution, making available, performance or broadcast, or any act for profit or other commercial purpose);
3.3 use the Software solely for lawful purposes, such as reproduction of non-copyrighted materials, materials in which you own the copyright, or materials you are authorized or legally permitted to reproduce;
3.4 make one copy of the Software in machine-readable form for backup purposes only;
3.5 you may not rent, lease, or sublicense the Software. You may make a one-time permanent transfer of your remaining license rights to the Software to another party, provided that:
3.5.1 the transfer must include all of the Software, including any documentation, including originals and copies;
3.5.2 you do not retain any copies of the Software and documentation; and
3.5.3 the party receiving the Software reads and agrees to accept the terms of this EULA.
4. Privacy: Installation of the Software requires registration over an Internet connection in order for the Software to function. During registration, information will be sent from your computer to a Fisher-Price computer. By installing the Software, you consent to said registration and the collection and processing of information you are requested to provide during the registration and installation process as well as certain system information about your computer. All of this information collected is governed by the terms of Company’s Privacy Policy, which is accessible using the Software.
5. Store: Content may be downloaded for use with the Software and the Player via the Store. The Store is operated by Digital River, Inc. Any applicable conditions of use of the Store or privacy restrictions pertaining to information collected by the Store are governed by those policies established by Digital River, Inc. For more information, see Digital River’s website at www.digitalriver.com or any applicable notices from Digital River within the Store. Nevertheless, by using the Software to access the Store, you additionally agree to the following conditions:
5.1 By downloading a copy of any Content from the Store, you agree to be bound by the applicable Content License, which is accessible using the Software;
5.2 You agree that should you choose to ‘opt-in’ pursuant to Digital River’s privacy policy, that any information shared with Company will be governed by Company’s Privacy Policy, which is accessible using the Software.
6. Limitations of Software: Use of the Software is subject to the following limitations:
6.1 The Software may only be installed up to five (5) times and will not install thereafter.
6.2 In order to operate with the installed Software, a Player must be registered with the Software. The Software may perform the registration process up to five (5) times and will not register any Player thereafter. Registration of a Player will erase all content stored on the Player prior to the registration. By registering a Player to the Software, you agree to be bound to the Legal Documents.
7. Limitations on Content:
7.1 You agree to download the Content only by using a registered installation of the Software.
7.2 You agree not to alter the encoding scheme of the Content in such a way that enables the Content to be played by any device other than a registered Player or by your registered installation of the Software. In particular, you agree not to re-encode content in the MP3 format, AAC format, or any other scheme (either proprietary or non-proprietary) and not to play it on any other device such as the Apple iPod.
7.3 You acknowledge and agree that the Player can only play the Content encoded in the FP3 format and cannot play Content encoded in other formats, such as the MP3 format or the AAC format.
8. Reverse Engineering: Except as and only to the extent expressly permitted in this EULA or by applicable law, you may not copy, decompile, reverse engineer, disassemble, modify, or create derivative works of the Software or any part thereof.
9. Reservation: Company reserves all rights not expressly granted to you in this EULA. Company retains all title, interest and ownership of all intellectual property rights in and to the Software and accompanying documentation, including, but not limited to, all copyright and rights and interests of every kind or nature in and to all works based upon, incorporated in, derived from, incorporating or relating to the Software and documentation or from which the Software and documentation are derived, as well as the right to exploit any of the foregoing in all media and by any manner and means now known or hereafter devised, throughout the universe, in perpetuity.
11. Termination: This EULA is effective until terminated. Your rights under this EULA will terminate automatically without notice from Company should you fail to comply with any of the terms of the Legal Documents. Upon termination, you agree to cease all use of the Software and documentation and destroy all copies of the Software.
12. Limited Warranty: Company warrants the media on which the Software is recorded and delivered by Company to be free from defects in material and workmanship under normal use for a period of ninety (90) days from the date of original retail purchase or download. Your exclusive remedy under this Section shall be the replacement of the Software which is returned to Fisher-Price.
13. Disclaimer of Warranties: YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SOFTWARE IS AT YOUR SOLE RISK. EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED “AS IS,” WITH ANY AND ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. COMPANY AND ITS LICENSORS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE, EITHER EXPRESS OR IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. COMPANY DOES NOT WARRANT THAT THE SOFTWARE IS ERROR-FREE OR WILL BE UNINTERRUPTED, FREE FROM SPYWARE, MALWARE, ADWARE, VIRUSES, WORMS OR OTHER MALICIOUS CODE, OR WILL FUNCTION TO MEET YOUR REQUIREMENTS.
14. Limitation of Liability: TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL COMPANY BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, DENIALS OF SERVICE (INCLUDING COMPUTER CRASHES), BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SOFTWARE AND/OR PLAYER, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE), EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL COMPANY’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES EXCEED THE PURCHASE PRICE OF THE SOFTWARE AND/OR SOFTWARE/HARDWARE PACKAGE.
15. Indemnity: YOU AGREE TO INDEMNIFY AND HOLD FISHER-PRICE AND ITS AFFILIATES HARMLESS FROM ANY CLAIMS, PROCEEDINGS, DAMAGES, COSTS, AND EXPENSES ARISING OR RESULTING FROM YOUR USE OF THE SOFTWARE OR PLAYER OR CONTENT FOR ANY ILLEGAL PURPOSE.
16. U.S. Government Restricted Rights and Export Provisions:
16.1 The Software is “commercial computer software” or “commercial computer software documentation.” The United States Government’s rights with respect to the Software are limited by the terms of this License Agreement, pursuant to FAR § 12.212(a) and/or DFARS § 227.7202-1(a), as applicable.
16.2 You agree by installing, copying, or otherwise using the Software that:
16.2.1 you do not reside in a country subject to embargo or export controls by the U.S. Government;
16.2.2 you are not on the List of Denied Persons as published by the U.S. government; and
16.2.3 you will not use the Software for any illegal purpose.
16.3 Because the Software and related technical data are subject to United States export controls, you agree that you shall not export or "re-export" (transfer) the Software unless you have complied with all applicable U.S. export controls. You indemnify and hold Company and its licensors harmless from and against any liability that may arise from your failure to comply with all export control laws and regulations.
17. Miscellaneous Provisions:
17.1 This EULA will be governed by and construed in accordance with the laws of the State of New York.
17.2 Any claim or dispute between you and Company or against any agent, employee, successor, licensor or assign of Company, whether related to this EULA or otherwise, shall be resolved by binding arbitration as governed by the American Arbitration Association.
17.3 If for any reason a court of competent jurisdiction finds any provision of this EULA, or portion thereof, to be unenforceable, the remainder of this EULA shall continue in full force and effect.
17.4 This EULA constitutes the entire agreement between the parties with respect to the use of the Software licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter, with the exception of the Legal Documents. In the event of any conflict between this EULA, the Content License, and the Privacy Policy, the terms of the Content License shall govern. This EULA may be changed from time to time by Fisher-Price. Changes to this EULA will be provided with the Software or posted in the Legal Documents section of the Store. You agree that your continued use of the Software thirty (30) days after any such change has first been promulgated by Fisher-Price shall constitute your agreement to the updated EULA containing the changed terms.
18. Consumer Contact: If you have any questions regarding this EULA, or if you would like to contact Company for any other reason, write to:
Attention: Legal Department, Kid-Tough™ FP3™ Player
Fisher-Price, Inc.
636 Girard Avenue
East Aurora, New York 14052