Smart Connect Mobile Application
End User License Agreement
This End User License Agreement ("EULA") is a legal agreement between you ("You") and Fisher-Price, Inc. (together with its parent Mattel, Inc., "Company").
Platform: Apple App Store
Platform Provider: Apple, Inc.
PLEASE READ THIS EULA CAREFULLY BEFORE INSTALLING OR USING THIS APPLICATION OR ANY APPLICATION UPGRADE (AS DEFINED IN SECTION 4) (TOGETHER, THE "APPLICATION"). BY INSTALLING OR USING THE APPLICATION, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS EULA AND CONSENT TO THE PRIVACY STATEMENT. IF YOU DO NOT AGREE, THEN DO NOT INSTALL OR USE THE APPLICATION. If You are uncertain about Your right to use or install certain materials, You should contact legal counsel.
1. License Grant. Subject to Your compliance with the terms and conditions of this EULA, Company grants to You a personal, limited, non-transferable license to use the Application on one or more Platform-compatible devices that You own or control, as permitted by and in accordance with the Platform Provider's terms of service. Your purchase, installation and use of the Application is subject to the Platform Provider's terms of service, privacy policy and other applicable polices made available by the Platform Provider. In addition, You must comply with applicable third party terms and conditions governing any other products or services in connection with which You use the Application. Please be aware that Platform may collect analytics, usage statistics, technical or other data about or through the Application and/or Your device separate from Company's collection of data as described in Section 2.2. Company is not responsible for the Platform Provider's collection of data or the use of data collected by the Platform Provider.
2. Description of other Rights and Restrictions.
2.1 Use of Application. You may use the Application only in accordance with the terms and conditions set forth in this EULA. You may use the Application solely for lawful purposes. In each instance, the use of the Application is solely for Your own personal and private non-commercial use (including printing and saving of content for personal use only) 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). Use of this Application may require that You update the operating system of Your device to the current version of the operating system.
2.2 Consent to Use of Data. You consent to our data practices as described in our Privacy Statement. Without limiting the generality of the foregoing, You agree that Company (and, for clarity, its affiliates, and contractors providing services to Company) may collect and use technical data and related information, including without limitation, technical information about Your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to You (if any) related to the Application. Company may use this information as long as it is in a form that does not personally identify You, to improve its products or to provide services or technologies to You. For more information about how we may use Your information, please visit our Privacy Statement, which we may revise from time to time as provided therein.
2.3 Restrictions: Except as expressly permitted by the license grant in Section 1, You may not distribute or make the Application available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the Application. You may not: (a) copy, modify or create derivative works of the Application or any part thereof (including any content made available through the Application); or (b) decompile, reverse engineer, disassemble, or otherwise reduce the Application to human-perceivable form (except as and only to the extent the foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Application). Any attempt to do so is a violation of the rights of Company and its licensors. You shall not remove any copyright, trademark or other proprietary notices contained in the Application. You shall not exploit the Application in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity.
3. Linked Websites; Advertisements; Dealings with Third Parties.
3.1 Company Websites; Linked Websites; Advertisements. The Application may contain links to or enable access websites owned or operated by Company ("Company Websites") and to third party services and websites not affiliated with the Company ("Linked Websites"). All use of Company Websites is governed by the terms and conditions and privacy statements posted on such sites. Use of the Company Websites and Linked Websites may require Internet or mobile services access and that You accept additional terms of service. Company has no control over the content, operations, policies, terms, or other elements of Linked Websites, and Company does not assume any obligation to review any Linked Websites. Company does not endorse, approve, or sponsor any Linked Websites, or any third party content, advertising, information, materials, products, services, applications or other items. Company disclaims all liability in connection therewith. Any activities You engage in connection with any of the same are at Your sole risk and subject to the privacy and other policies, terms and conditions of use, and rules issued by the operator of the Linked Websites. Company disclaims all liability in connection therewith.
3.2 Dealings with Third Parties. Any interactions, correspondence, transactions, and other dealings that You have with any third parties found on or through the Application (including on or via Linked Websites or advertisements) are solely between You and the third party (including issues related to the content of third party advertisements, payments, delivery of goods, warranties (including product warranties), privacy and data security, and the like). Company disclaims all liability in connection therewith.
4. Application Upgrades. The term Application of this EULA apply to any upgrades, supplements, add-on components, or Internet or mobile-based services components that Company may provide or make available to You in connection with the Application ("Application Upgrades"), unless superseded by a new license or additional terms accompanying such upgrade, supplement, add-on component, or Internet or mobile-based services component, in which case the new license will govern.
5. Ownership; Reservation of Rights. This Application contains copyrighted material, trademarks and other intellectual property that is owned by Company or that is provided by and belongs to third parties ("Third Party Providers"). Company and its Third Party Providers own and will retain all title, interest, ownership rights and intellectual property rights in and to the Application and all parts thereof (including content made available through the Application), and reserve all rights not expressly granted to You in this EULA. The Application is licensed, not sold.
6. Representations and Warranties By End User: You represent and warrant that You (a) are the age of majority in Your state of residence (which is typically 18 years of age in most states) and have the legal capacity to enter into this EULA , (b) that You will use the Application only for lawful purposes and in accordance with this EULA, and (c) that You will not use the Application to violate any law, regulation or ordinance or any right of Company, its licensors or any third party, including without limitation, any right of privacy, publicity, copyright, trademark, or patent.
7. Termination: This EULA is effective until terminated. Without prejudice to any other rights, Your rights under this EULA will terminate automatically without notice from Company should You fail to comply with any of the terms of the EULA. Upon termination, You agree to cease all use of the Application, disinstall it and destroy all copies of the Application. Sections 2.3, 5, 7-11, 15 - 17 shall survive termination of this EULA.
8. Disclaimer of Warranties: YOUR USE OF THE APPLICATION IS AT YOUR SOLE RISK.
THIS APPLICATION AND SUPPORT SERVICES (IF ANY) ARE PROVIDED ON AN "AS IS", "AS AVAILABLE", AND "WITH ALL FAULTS" BASIS. Therefore, to the fullest extent permissible by law, Company and its subsidiaries and each of their respective employees, directors, members, mangers, shareholders, agents, vendors, licensors (including the Platform Provider), licensees, contractors, customers, successors, and assigns (collectively, "Company Parties") hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied as to:
· The functions, features, or any other elements in, or made accessible through, the Application;
· Any products, services, or instructions offered or referenced at or linked through the Application (except for any specific warranties provided in additional terms provided by a Company Party who is also a product manufacturer that are included with a product that You purchase from us);
· Whether the Application is free from any harmful components (including viruses, Trojan horses, and other technologies that could adversely impact Your device);
· Whether the information (including any instructions) in the Application is accurate, complete, correct, adequate, useful, timely, or reliable;
· Whether any defects to the Application will be repaired; and
· Whether Your use of the Application is lawful in any particular jurisdiction.
EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, COMPANY PARTIES FURTHER HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSES, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS. FURTHER, COMPANY MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO ANY THIRD PARTY SOFTWARE INCLUDED WITH THE APPLICATION. TO THE EXTENT A WARRANTY MAY NOT BE DISCLAIMED AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM REQUIRED UNDER SUCH LAW.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY, ITS DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.
9. Limitation of Liability:
9.1 UNDER NO CIRCUMSTANCES WILL ANY COMPANY PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental, or consequential losses or damages that are directly or indirectly related to:
a. the Application;
b. Your use of or inability to use Application, or the performance of the Application;
c. any action taken in connection with an investigation by Company or law enforcement authorities regarding Your access to or use of the Application;
d. any action taken in connection with copyright or other intellectual property owners or other rights owners;
e. any errors or omissions in the Application's technical operation; or
f. any damage to Your device, computer, hardware, software, modem, or other equipment or technology, including damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line, or network failure or any other technical or other malfunction, including losses or damages in the form of lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or equipment failure or malfunction.
9.2 The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if Company was advised of or should have known of the possibility of such losses or damages, regardless of whether You bring an action of contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of God, telecommunications failure, or destruction of the Application).
9.3 Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages of the sort that are described above, so the above limitation or exclusion may not apply to You.
9.4 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE TOTAL LIABILITY OF COMPANY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE APPLICATION AND YOUR RIGHTS UNDER THIS EULA, EXCEED $50; PROVIDED, HOWEVER, THIS PROVISION WILL NOT APPLY IF A TRIBUNAL WITH APPLICABLE JURISDICTION FINDS SUCH TO BE UNCONSCIONABLE. FOR PURPOSES OF CLARITY, THE PRIOR SENTENCE DOES NOT EXPAND OR LIMIT ANY PRODUCT WARRANTY THAT IS PROVIDED BY A MANUFACTURER OF A PHYSICAL PRODUCT.
9.5 With respect to any electronic commercial service on a Company website, residents of California are entitled to the following specific consumer rights information: if You have a complaint, You may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs by mail at 400 R St., Suite 1080, Sacramento, California, 95814, or by telephone at 916.445.1254. See also: http://www.dca.ca.gov.
10. Indemnity: You agree to, and You hereby, defend, indemnify, and hold Company Parties from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys' fees) that directly or indirectly arise from or related to any claim, suit, action, demand, or proceeding made or brought against any Company Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with (A) Your use of the Application and Your activities in connection with the Application, (B) Your breach or anticipatory breach of this EULA, (C) Your violation or anticipatory violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental and quasi-governmental authorities in connection with Your use of the Applications or Your activities in connection with the Application, and (D) any misrepresentation made by You (all of the foregoing, "Claims and Losses"). You will cooperate as fully required by Company in the defense of any Claim and Losses. Notwithstanding the foregoing, Company Parties retain the exclusive right to settle, compromise, and pay any and all Claims and Losses. Company Parties reserve the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a Company Party.
11. Injunctive Relief: Because Company would be irreparably injured in the event of Your breach of any terms of this EULA or Your use of the Application beyond the scope permitted hereunder, You agree that: (a) Company will be entitled to seek and obtain, on an expedited basis from any court of competent jurisdiction, immediate injunctive relief to enjoin any breach or prospective breach of this EULA, and (b) You will not object to any such application for injunctive relief on the grounds that Company's losses may be compensated by monetary damages.
12. U.S. Government Restricted Rights and Export Provisions:
12.1 The Application is "commercial computer software" or "commercial computer software documentation." The United States Government's rights with respect to the Application are limited by the terms of this License Agreement, pursuant to FAR § 12.212(a) and/or DFARS § 227.7202-1(a), as applicable.
12.2 You agree by installing or otherwise using the Application that:
a. You do not reside in and are not a national or resident of a country or other jurisdiction to which the U.S. Government has embargoed goods, software, technology or services;
b. You are not on the U.S. Treasury Department's List of Specifically Designated Nationals or the U.S. Commerce Department's Table of Deny Orders;
c. You are not on the U.S. Department of Commerce's Bureau of Industry and Security Entities List as published in the Export Administration Regulations (including entities engaged in weapons of mass destruction proliferation in various countries and persons and entities that are suspected of diverting U.S. origin items to embargoed countries or terrorist end-users; and
d. You will not use the Application for any illegal purpose.
12.3 Because the Application and related technical data may be subject to United States export controls, You agree that You shall not export or "re-export" (transfer) the Application unless You have complied with all applicable U.S. export controls.
13. Wireless Features
13.1 The Application may offer certain features and services that are available to You via Your Device. These features and services may include the ability to access the Application's features and upload content to the Application, receive messages from the Application, make in-app purchases, and download content to Your device (collectively, "Wireless Features"). Standard messaging, data, and other fees may be charged by Your carrier to participate in Wireless Features. Fees and charges may appear on Your wireless bill or be deducted from Your pre-paid balance. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with Your carrier or wireless Internet device. You should check with Your carrier to find out what plans are available and how much they cost. Contact Your carrier with questions regarding these issues.
13.2 You agree that as to the Wireless Features for which You are registered, we may send communications to Your device regarding us or other parties - unless You cancel Your registration or opt-out in accordance with any procedure established by Company or by law. Further, we may collect information related to Your use of the Wireless Features. If You have registered via the Application for Wireless Features, then You agree to notify Company of any changes to Your wireless number (including phone number) and update Your accounts in the Application to reflect the changes, or notify Company when You wish to terminate Your registration.
14. Terms Applicable for the Platform: The following additional terms and conditions are applicable to You and are incorporated into this EULA by this reference:
14.1 To the extent that You are accessing the Application through an Apple device, You acknowledge that this EULA is entered into between You and Company and, that Platform Provider is not a party to this EULA other than as third-party beneficiary as contemplated below.
14.2 The license granted to You in Section 1 [LINK] of these Terms is subject to the permitted Usage Rules set forth in the Platform Terms of Service (see: http://www.apple.com/legal/itunes/us/terms.html) and any third party terms of agreement applicable to the Application.
14.3 You acknowledge that Company, and not Platform Provider, is responsible for providing the Application and content thereof.
14.4 You acknowledge that Platform Provider has no obligation whatsoever to furnish any maintenance or any support services to You with respect to the Application.
14.5 Notwithstanding anything to the contrary herein, and subject to the terms in these Terms, You acknowledge that, solely as between Platform Provider and Company, Company, and not Platform Provider is responsible for addressing any claims You or any third party may have relating to the Application, or Your possession and/or use thereof, including, but not limited, to: (i) product liability claims, (ii) any claim that the Application fails to confirm to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
14.6 You agree that if the Application, or Your possession and use of the Application, infringes on a third party's intellectual property rights, You will not hold Platform Provider responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims.
14.7 You acknowledge and agree that Platform Provider, and its subsidiaries, are third-party beneficiaries of these Terms, and that, upon Your acceptance of the terms and conditions of these Terms, Platform Provider will have the right (and will be deemed to have accepted the right) to enforce this EULA against You as a third-party beneficiary thereof.
14.8 When using the Application, You agree to comply with any and all third-party terms that are applicable to any platform, website, technology or service that interacts with the Application.
14.9 IN THE EVENT THE APPLICATION FAILS TO CONFORM TO ANY APPLICABLE WARRANTY, YOU MAY NOTIFY PLATFORM PROVIDER AND PLATFORM PROVIDER WILL REFUND THE PURCHASE PRICE FOR THE APPLICATION TO YOU, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, PLATFORM PROVIDER WILL HAVE NO OTHER WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THE APPLICATION OR ANY OTHER CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES ATTRIBUTABLE TO ANY FAILURE TO CONFORM TO SUCH WARRANTY. The foregoing limitations will apply even if any remedy under this EULA fails of its essential purpose.
14. Dispute Resolution: Certain portions of this Section 15 are deemed to be a "written agreement to arbitrate" pursuant to the Federal Arbitration Act. You and Company agree that we intend that this Section 15 satisfies the "writing" requirement of the Federal Arbitration Act.
14.1 First -- Try to Resolve Disputes and Excluded Disputes. If any controversy, allegation, or claim arises out of or relates to the Application or this EULA (collectively, "Dispute"), or to any of Company's actual or alleged intellectual property rights (an "Excluded Dispute", which includes those actions set forth in Section15.4 below), then You and Company agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. Our notice to You will be sent to You based on the most recent contact information that You provide us. But if no such information exists or if such information is not current, then we have no obligation under this Section 15.1. Your notice to us must be sent to: Mattel, Inc., 333 Continental Boulevard, El Segundo, California, 90245, U.S.A., Attention: General Counsel. For a period of 60 days from the date of receipt of notice from the other party, Company and You will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either You or Company to resolve the Dispute or Excluded Dispute on terms with respect to which You and Company, in each party's sole discretion, are not comfortable.
14.2 Forums for Alternative Dispute Resolution.
a. Arbitration.
If we cannot resolve a Dispute as set forth in Section 15.1 above within 60 days of receipt of the notice, then either You or Company may submit the Dispute to formal arbitration in accordance with this Section 15.2. If we cannot resolve an Excluded Dispute as set forth in Section 15.1 above within 60 days of receipt of the notice, then either You or Company may submit the Excluded Dispute to formal arbitration only if You and Company consent, in a writing signed by You and Company, Inc.'s General Counsel, to have that Excluded Dispute subject to arbitration. In such a case (and only in such a case), that Excluded Dispute will be deemed a "Dispute" for the remainder of this Section 15.2.
Upon expiration of the applicable 60-day period and to the fullest extent permitted by applicable law, a Dispute will be resolved solely by binding arbitration in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association ("AAA"). If the Dispute has a claimed value of not more than $250,000, then the arbitration will be heard and determined by a single neutral arbitrator who is a retired judge or a lawyer with not less than 15 years' experience as a practicing member of the bar in the substantive practice area related to the Dispute, who will administer the proceedings in accordance with the AAA's Supplementary Procedures for Consumer Related Disputes. If the Dispute has a claimed value of more than $250,000, or if Company elects in its sole discretion to bear the costs of arbitration in excess of those that would occur for a proceeding before a single neutral arbitrator, then the arbitration will be heard and determined by a three member panel, with one member to be selected by each party and the third (who will be chair of the panel) selected by the two party appointed members or by the AAA in accordance with the Commercial Arbitration Rules. The arbitrator or arbitration panel, as the case may be, will apply applicable law and the provisions of this User Agreement and any Additional Terms, will determine any Dispute according to the applicable law and facts based upon the record and no other basis, and will issue a reasoned award. If You and Company do not both consent to the arbitration of an Excluded Dispute as set forth in the immediately preceding paragraph of this Section 15.2(a), then this paragraph and the remainder of this Section 15.1 will not apply to the Excluded Dispute.
If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling or unable to set a hearing date within 60 days of the filing of a "demand for arbitration," then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. ("JAMS") using JAMS' streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that You and a legal officer of Company consents to in writing. The substantive practice area requirements for the arbitrator and the $250,000 threshold for the number of arbitrators assigned to the Dispute set forth in the paragraph above for the AAA arbitration will also apply to any such arbitration under JAMS or another arbitration service.
You can obtain AAA and JAMS procedures, rules, and fee information as follows:
AAA:
800.778.7879
http://www.adr.org/
JAMS:
949.224.1810
http://www.jamsadr.com
b. Nature, Limitations, and Location of Alternative Dispute Resolution. In arbitration, as with a court, the arbitrator must honor the terms of this EULA and can award the prevailing party damages and other relief (including attorneys' fees). However, WITH ARBITRATION (A) THERE IS NO JUDGE OR JURY, (B) THE ARBITRATION PROCEEDINGS AND ARBITRATION OUTCOME ARE SUBJECT TO CERTAIN CONFIDENTIALITY RULES, AND (C) JUDICIAL REVIEW OF THE ARBITRATION OUTCOME IS LIMITED. All parties to the arbitration will have the right, at their own expense, to be represented by an attorney or other advocate of their choosing. If an in-person arbitration hearing is required, then it will be conducted in the "metropolitan statistical area" (as defined by the U.S. Census Bureau) where You are a resident at the time the Dispute is submitted to arbitration. You and Company will pay the administrative and arbitrator's fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require Company to pay a greater portion or all of such fees and costs in order for this Section 15 to be enforceable, then Company will have the right to elect to pay the fees and costs and proceed to arbitration. Discovery will be permitted pursuant to the applicable arbitration rules. The arbitrator's decision must consist of a written statement stating the disposition of each claim of the Dispute, and must provide a statement of the essential findings and conclusions on which the decision and any award (if any) is based. Judgment on the arbitration decision and award (if any) may be entered in or by any court that has jurisdiction over the parties pursuant to Section 9 of the Federal Arbitration Act.
14.3 Limited Time to File Claims. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR COMPANY WANT TO ASSERT A DISPUTE (BUT NOT AN EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 15.1 ABOVE) WITHIN 1 YEAR AFTER THE DISPUTE ARISES -- OR IT WILL BE FOREVER BARRED.
14.4 Injunctive Relief. The foregoing provisions of this Section 15 will not apply to any legal action taken by Company to seek an injunction or other equitable relief in connection with any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Application and/or Company's intellectual property rights (including such Company may claim that may be in dispute), Company's operations, and/or Company's products or services.
14.5 Small Claims Matters Are Excluded from Arbitration Requirement. Notwithstanding the foregoing, either of us may bring a qualifying claim of Disputes (but not Excluded Disputes) in small claims court.
14.6 No Class Action Matters. Disputes will be arbitrated only on an individual basis and will not be consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. But if, for any reason, any court with competent jurisdiction or any arbitrator selected pursuant to Section 15.2(a) above holds that this restriction is unconscionable or unenforceable, then our agreement in Section 15.2 above to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section 15.7 below.
14.7 Federal and State Courts in Los Angeles. Except to the extent that arbitration is required in Section 15.2 above, and except as to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute may only be instituted in state or federal court in Los Angeles County, California. Accordingly, You and Company consent to the exclusive personal jurisdiction and venue of such courts for such matters.
15. Open Source Components: The Application may contain certain "open source" components which are distributed by Company to You under the terms of the applicable open source license agreements (including, without limitation, all provisions disclaiming warranties and limiting liability) and not this EULA ("Open Source Component"). Information about Open Source Components can be found in the materials provided on the applicable product page on Company's Consumer Relations website, located at http://service.mattel.com (the "Service Site"). To locate the product page, go to the Service Site, search the product name in the "Guided Search" box, and then select the applicable product. Any applicable open source license agreements are incorporated herein by reference.
16. Miscellaneous Provisions:
16.1 You are responsible for obtaining and maintaining Your device and other equipment and software, and all Internet service provider, mobile service, and other services needed for Your access to and use of the Application and You will be responsible for all charges related to them.
16.2 If You acquired the Application in the United States, this EULA will be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with, the laws of the State of New York, without regard to its conflicts of law provisions. If You acquired the Application elsewhere, unless expressly prohibited by local law, this EULA is governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with, the laws of the State of New York, without regard to its conflicts of law provisions.
16.3 If any provision of this EULA is for any reason deemed invalid, unlawful, void, or unenforceable by a court of competent jurisdiction, then that provision will be deemed severable from this EULA and the invalidity of the provision will not affect the validity or enforceability of the remainder of this EULA (which will remain in full force and effect). To the extent permitted by applicable law, You agree to waive, and You hereby waive any applicable statutory and common law that may permit a contract to be construed against its drafter.
16.4 Company reserves the right to discontinue any services provided to You or made available to You through the use of the Application.
16.5 This EULA constitutes the entire agreement between the parties with respect to the use of the Application licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter. This EULA may be changed from time to time by Company. Changes to this EULA will be provided with Application updates. You agree that Your continued use of the Application after any such change has first been promulgated by Company shall constitute Your agreement to the updated EULA containing the changed terms.
17. Consumer Contact: If You have any questions regarding this EULA, or if You would like to contact Company for any other reason, write to:
Via e-mail: FisherPriceConsumerRelations@mattel.com; or
Via phone: 1-800-432-5437.
Smart Connect Mobile Application
End User License Agreement
This End User License Agreement ("EULA") is a legal agreement between you ("You") and Fisher-Price, Inc. (together with its parent Mattel, Inc., "Company").
Platform: Google Play
Platform Provider: Google Inc.
PLEASE READ THIS EULA CAREFULLY BEFORE INSTALLING OR USING THIS APPLICATION OR ANY APPLICATION UPGRADE (AS DEFINED IN SECTION 4) (TOGETHER, THE "APPLICATION"). BY INSTALLING OR USING THE APPLICATION, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS EULA AND CONSENT TO THE PRIVACY STATEMENT. IF YOU DO NOT AGREE, THEN DO NOT INSTALL OR USE THE APPLICATION. If You are uncertain about Your right to use or install certain materials, You should contact legal counsel.
1. License Grant. Subject to Your compliance with the terms and conditions of this EULA, Company grants to You a personal, limited, non-transferable license to use the Application on one or more Platform-compatible devices that You own or control, as permitted by and in accordance with the Platform Provider's terms of service. Your purchase, installation and use of the Application is subject to the Platform Provider's terms of service, privacy policy and other applicable polices made available by the Platform Provider. In addition, You must comply with applicable third party terms and conditions governing any other products or services in connection with which You use the Application. Please be aware that Platform may collect analytics, usage statistics, technical or other data about or through the Application and/or Your device separate from Company's collection of data as described in Section 2.2. Company is not responsible for the Platform Provider's collection of data or the use of data collected by the Platform Provider.
2. Description of other Rights and Restrictions.
2.1 Use of Application. You may use the Application only in accordance with the terms and conditions set forth in this EULA. You may use the Application solely for lawful purposes. In each instance, the use of the Application is solely for Your own personal and private non-commercial use (including printing and saving of content for personal use only) 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). Use of this Application may require that You update the operating system of Your device to the current version of the operating system.
2.2 Consent to Use of Data. You consent to our data practices as described in our Privacy Statement. Without limiting the generality of the foregoing, You agree that Company (and, for clarity, its affiliates, and contractors providing services to Company) may collect and use technical data and related information, including without limitation, technical information about Your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to You (if any) related to the Application. Company may use this information as long as it is in a form that does not personally identify You, to improve its products or to provide services or technologies to You. For more information about how we may use Your information, please visit our Privacy Statement, which we may revise from time to time as provided therein.
2.3 Restrictions: Except as expressly permitted by the license grant in Section 1, You may not distribute or make the Application available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the Application. You may not: (a) copy, modify or create derivative works of the Application or any part thereof (including any content made available through the Application); or (b) decompile, reverse engineer, disassemble, or otherwise reduce the Application to human-perceivable form (except as and only to the extent the foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Application). Any attempt to do so is a violation of the rights of Company and its licensors. You shall not remove any copyright, trademark or other proprietary notices contained in the Application. You shall not exploit the Application in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity.
3. Linked Websites; Advertisements; Dealings with Third Parties.
3.1 Company Websites; Linked Websites; Advertisements. The Application may contain links to or enable access websites owned or operated by Company ("Company Websites") and to third party services and websites not affiliated with the Company ("Linked Websites"). All use of Company Websites is governed by the terms and conditions and privacy statements posted on such sites. Use of the Company Websites and Linked Websites may require Internet or mobile services access and that You accept additional terms of service. Company has no control over the content, operations, policies, terms, or other elements of Linked Websites, and Company does not assume any obligation to review any Linked Websites. Company does not endorse, approve, or sponsor any Linked Websites, or any third party content, advertising, information, materials, products, services, applications or other items. Company disclaims all liability in connection therewith. Any activities You engage in connection with any of the same are at Your sole risk and subject to the privacy and other policies, terms and conditions of use, and rules issued by the operator of the Linked Websites. Company disclaims all liability in connection therewith.
3.2 Dealings with Third Parties. Any interactions, correspondence, transactions, and other dealings that You have with any third parties found on or through the Application (including on or via Linked Websites or advertisements) are solely between You and the third party (including issues related to the content of third party advertisements, payments, delivery of goods, warranties (including product warranties), privacy and data security, and the like). Company disclaims all liability in connection therewith.
4. Application Upgrades. The term Application of this EULA apply to any upgrades, supplements, add-on components, or Internet or mobile-based services components that Company may provide or make available to You in connection with the Application ("Application Upgrades"), unless superseded by a new license or additional terms accompanying such upgrade, supplement, add-on component, or Internet or mobile-based services component, in which case the new license will govern.
5. Ownership; Reservation of Rights. This Application contains copyrighted material, trademarks and other intellectual property that is owned by Company or that is provided by and belongs to third parties ("Third Party Providers"). Company and its Third Party Providers own and will retain all title, interest, ownership rights and intellectual property rights in and to the Application and all parts thereof (including content made available through the Application), and reserve all rights not expressly granted to You in this EULA. The Application is licensed, not sold.
6. Representations and Warranties By End User: You represent and warrant that You (a) are the age of majority in Your state of residence (which is typically 18 years of age in most states) and have the legal capacity to enter into this EULA , (b) that You will use the Application only for lawful purposes and in accordance with this EULA, and (c) that You will not use the Application to violate any law, regulation or ordinance or any right of Company, its licensors or any third party, including without limitation, any right of privacy, publicity, copyright, trademark, or patent.
7. Termination: This EULA is effective until terminated. Without prejudice to any other rights, Your rights under this EULA will terminate automatically without notice from Company should You fail to comply with any of the terms of the EULA. Upon termination, You agree to cease all use of the Application, disinstall it and destroy all copies of the Application. Sections 2.3, 5, 7-11, 15 - 17 shall survive termination of this EULA.
8. Disclaimer of Warranties: YOUR USE OF THE APPLICATION IS AT YOUR SOLE RISK.
THIS APPLICATION AND SUPPORT SERVICES (IF ANY) ARE PROVIDED ON AN "AS IS", "AS AVAILABLE", AND "WITH ALL FAULTS" BASIS. Therefore, to the fullest extent permissible by law, Company and its subsidiaries and each of their respective employees, directors, members, mangers, shareholders, agents, vendors, licensors (including the Platform Provider), licensees, contractors, customers, successors, and assigns (collectively, "Company Parties") hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied as to:
· The functions, features, or any other elements in, or made accessible through, the Application;
· Any products, services, or instructions offered or referenced at or linked through the Application (except for any specific warranties provided in additional terms provided by a Company Party who is also a product manufacturer that are included with a product that You purchase from us);
· Whether the Application is free from any harmful components (including viruses, Trojan horses, and other technologies that could adversely impact Your device);
· Whether the information (including any instructions) in the Application is accurate, complete, correct, adequate, useful, timely, or reliable;
· Whether any defects to the Application will be repaired; and
· Whether Your use of the Application is lawful in any particular jurisdiction.
EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, COMPANY PARTIES FURTHER HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSES, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS. FURTHER, COMPANY MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO ANY THIRD PARTY SOFTWARE INCLUDED WITH THE APPLICATION. TO THE EXTENT A WARRANTY MAY NOT BE DISCLAIMED AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM REQUIRED UNDER SUCH LAW.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY, ITS DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.
9. Limitation of Liability:
9.1 UNDER NO CIRCUMSTANCES WILL ANY COMPANY PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental, or consequential losses or damages that are directly or indirectly related to:
a. the Application;
b. Your use of or inability to use Application, or the performance of the Application;
c. any action taken in connection with an investigation by Company or law enforcement authorities regarding Your access to or use of the Application;
d. any action taken in connection with copyright or other intellectual property owners or other rights owners;
e. any errors or omissions in the Application's technical operation; or
f. any damage to Your device, computer, hardware, software, modem, or other equipment or technology, including damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line, or network failure or any other technical or other malfunction, including losses or damages in the form of lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or equipment failure or malfunction.
9.2 The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if Company was advised of or should have known of the possibility of such losses or damages, regardless of whether You bring an action of contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of God, telecommunications failure, or destruction of the Application).
9.3 Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages of the sort that are described above, so the above limitation or exclusion may not apply to You.
9.4 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE TOTAL LIABILITY OF COMPANY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE APPLICATION AND YOUR RIGHTS UNDER THIS EULA, EXCEED $50; PROVIDED, HOWEVER, THIS PROVISION WILL NOT APPLY IF A TRIBUNAL WITH APPLICABLE JURISDICTION FINDS SUCH TO BE UNCONSCIONABLE. FOR PURPOSES OF CLARITY, THE PRIOR SENTENCE DOES NOT EXPAND OR LIMIT ANY PRODUCT WARRANTY THAT IS PROVIDED BY A MANUFACTURER OF A PHYSICAL PRODUCT.
9.5 With respect to any electronic commercial service on a Company website, residents of California are entitled to the following specific consumer rights information: if You have a complaint, You may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs by mail at 400 R St., Suite 1080, Sacramento, California, 95814, or by telephone at 916.445.1254. See also: http://www.dca.ca.gov.
10. Indemnity: You agree to, and You hereby, defend, indemnify, and hold Company Parties from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys' fees) that directly or indirectly arise from or related to any claim, suit, action, demand, or proceeding made or brought against any Company Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with (A) Your use of the Application and Your activities in connection with the Application, (B) Your breach or anticipatory breach of this EULA, (C) Your violation or anticipatory violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental and quasi-governmental authorities in connection with Your use of the Applications or Your activities in connection with the Application, and (D) any misrepresentation made by You (all of the foregoing, "Claims and Losses"). You will cooperate as fully required by Company in the defense of any Claim and Losses. Notwithstanding the foregoing, Company Parties retain the exclusive right to settle, compromise, and pay any and all Claims and Losses. Company Parties reserve the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a Company Party.
11. Injunctive Relief: Because Company would be irreparably injured in the event of Your breach of any terms of this EULA or Your use of the Application beyond the scope permitted hereunder, You agree that: (a) Company will be entitled to seek and obtain, on an expedited basis from any court of competent jurisdiction, immediate injunctive relief to enjoin any breach or prospective breach of this EULA, and (b) You will not object to any such application for injunctive relief on the grounds that Company's losses may be compensated by monetary damages.
12. U.S. Government Restricted Rights and Export Provisions:
12.1 The Application is "commercial computer software" or "commercial computer software documentation." The United States Government's rights with respect to the Application are limited by the terms of this License Agreement, pursuant to FAR § 12.212(a) and/or DFARS § 227.7202-1(a), as applicable.
12.2 You agree by installing or otherwise using the Application that:
a. You do not reside in and are not a national or resident of a country or other jurisdiction to which the U.S. Government has embargoed goods, software, technology or services;
b. You are not on the U.S. Treasury Department's List of Specifically Designated Nationals or the U.S. Commerce Department's Table of Deny Orders;
c. You are not on the U.S. Department of Commerce's Bureau of Industry and Security Entities List as published in the Export Administration Regulations (including entities engaged in weapons of mass destruction proliferation in various countries and persons and entities that are suspected of diverting U.S. origin items to embargoed countries or terrorist end-users; and
d. You will not use the Application for any illegal purpose.
12.3 Because the Application and related technical data may be subject to United States export controls, You agree that You shall not export or "re-export" (transfer) the Application unless You have complied with all applicable U.S. export controls.
13. Wireless Features
13.1 The Application may offer certain features and services that are available to You via Your Device. These features and services may include the ability to access the Application's features and upload content to the Application, receive messages from the Application, make in-app purchases, and download content to Your device (collectively, "Wireless Features"). Standard messaging, data, and other fees may be charged by Your carrier to participate in Wireless Features. Fees and charges may appear on Your wireless bill or be deducted from Your pre-paid balance. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with Your carrier or wireless Internet device. You should check with Your carrier to find out what plans are available and how much they cost. Contact Your carrier with questions regarding these issues.
13.2 You agree that as to the Wireless Features for which You are registered, we may send communications to Your device regarding us or other parties - unless You cancel Your registration or opt-out in accordance with any procedure established by Company or by law. Further, we may collect information related to Your use of the Wireless Features. If You have registered via the Application for Wireless Features, then You agree to notify Company of any changes to Your wireless number (including phone number) and update Your accounts in the Application to reflect the changes, or notify Company when You wish to terminate Your registration.
14. Terms Applicable for the Platform: The following additional terms and conditions are applicable to you and are incorporated into this EULA by this reference: The license granted to you in Section 1 of these Terms is subject to the Google Play Terms of Service (see: https://play.google.com/intl/en_us/about/play-terms.html) and any third party terms of agreement applicable to the Application.
15. Dispute Resolution: Certain portions of this Section 15 are deemed to be a "written agreement to arbitrate" pursuant to the Federal Arbitration Act. You and Company agree that we intend that this Section 15 satisfies the "writing" requirement of the Federal Arbitration Act.
15.1 First -- Try to Resolve Disputes and Excluded Disputes. If any controversy, allegation, or claim arises out of or relates to the Application or this EULA (collectively, "Dispute"), or to any of Company's actual or alleged intellectual property rights (an "Excluded Dispute", which includes those actions set forth in Section15.4 below), then You and Company agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. Our notice to You will be sent to You based on the most recent contact information that You provide us. But if no such information exists or if such information is not current, then we have no obligation under this Section 15.1. Your notice to us must be sent to: Mattel, Inc., 333 Continental Boulevard, El Segundo, California, 90245, U.S.A., Attention: General Counsel. For a period of 60 days from the date of receipt of notice from the other party, Company and You will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either You or Company to resolve the Dispute or Excluded Dispute on terms with respect to which You and Company, in each party's sole discretion, are not comfortable.
15.2 Forums for Alternative Dispute Resolution.
a. Arbitration.
If we cannot resolve a Dispute as set forth in Section 15.1 above within 60 days of receipt of the notice, then either You or Company may submit the Dispute to formal arbitration in accordance with this Section 15.2. If we cannot resolve an Excluded Dispute as set forth in Section 15.1 above within 60 days of receipt of the notice, then either You or Company may submit the Excluded Dispute to formal arbitration only if You and Company consent, in a writing signed by You and Company, Inc.'s General Counsel, to have that Excluded Dispute subject to arbitration. In such a case (and only in such a case), that Excluded Dispute will be deemed a "Dispute" for the remainder of this Section 15.2.
Upon expiration of the applicable 60-day period and to the fullest extent permitted by applicable law, a Dispute will be resolved solely by binding arbitration in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association ("AAA"). If the Dispute has a claimed value of not more than $250,000, then the arbitration will be heard and determined by a single neutral arbitrator who is a retired judge or a lawyer with not less than 15 years' experience as a practicing member of the bar in the substantive practice area related to the Dispute, who will administer the proceedings in accordance with the AAA's Supplementary Procedures for Consumer Related Disputes. If the Dispute has a claimed value of more than $250,000, or if Company elects in its sole discretion to bear the costs of arbitration in excess of those that would occur for a proceeding before a single neutral arbitrator, then the arbitration will be heard and determined by a three member panel, with one member to be selected by each party and the third (who will be chair of the panel) selected by the two party appointed members or by the AAA in accordance with the Commercial Arbitration Rules. The arbitrator or arbitration panel, as the case may be, will apply applicable law and the provisions of this User Agreement and any Additional Terms, will determine any Dispute according to the applicable law and facts based upon the record and no other basis, and will issue a reasoned award. If You and Company do not both consent to the arbitration of an Excluded Dispute as set forth in the immediately preceding paragraph of this Section 15.2(a), then this paragraph and the remainder of this Section 15.1 will not apply to the Excluded Dispute.
If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling or unable to set a hearing date within 60 days of the filing of a "demand for arbitration," then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. ("JAMS") using JAMS' streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that You and a legal officer of Company consents to in writing. The substantive practice area requirements for the arbitrator and the $250,000 threshold for the number of arbitrators assigned to the Dispute set forth in the paragraph above for the AAA arbitration will also apply to any such arbitration under JAMS or another arbitration service.
You can obtain AAA and JAMS procedures, rules, and fee information as follows:
AAA:
800.778.7879
http://www.adr.org/
JAMS:
949.224.1810
http://www.jamsadr.com
b. Nature, Limitations, and Location of Alternative Dispute Resolution. In arbitration, as with a court, the arbitrator must honor the terms of this EULA and can award the prevailing party damages and other relief (including attorneys' fees). However, WITH ARBITRATION (A) THERE IS NO JUDGE OR JURY, (B) THE ARBITRATION PROCEEDINGS AND ARBITRATION OUTCOME ARE SUBJECT TO CERTAIN CONFIDENTIALITY RULES, AND (C) JUDICIAL REVIEW OF THE ARBITRATION OUTCOME IS LIMITED. All parties to the arbitration will have the right, at their own expense, to be represented by an attorney or other advocate of their choosing. If an in-person arbitration hearing is required, then it will be conducted in the "metropolitan statistical area" (as defined by the U.S. Census Bureau) where You are a resident at the time the Dispute is submitted to arbitration. You and Company will pay the administrative and arbitrator's fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require Company to pay a greater portion or all of such fees and costs in order for this Section 15 to be enforceable, then Company will have the right to elect to pay the fees and costs and proceed to arbitration. Discovery will be permitted pursuant to the applicable arbitration rules. The arbitrator's decision must consist of a written statement stating the disposition of each claim of the Dispute, and must provide a statement of the essential findings and conclusions on which the decision and any award (if any) is based. Judgment on the arbitration decision and award (if any) may be entered in or by any court that has jurisdiction over the parties pursuant to Section 9 of the Federal Arbitration Act.
15.3 Limited Time to File Claims. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR COMPANY WANT TO ASSERT A DISPUTE (BUT NOT AN EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 15.1 ABOVE) WITHIN 1 YEAR AFTER THE DISPUTE ARISES -- OR IT WILL BE FOREVER BARRED.
15.4 Injunctive Relief. The foregoing provisions of this Section 15 will not apply to any legal action taken by Company to seek an injunction or other equitable relief in connection with any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Application and/or Company's intellectual property rights (including such Company may claim that may be in dispute), Company's operations, and/or Company's products or services.
15.5 Small Claims Matters Are Excluded from Arbitration Requirement. Notwithstanding the foregoing, either of us may bring a qualifying claim of Disputes (but not Excluded Disputes) in small claims court.
15.6 No Class Action Matters. Disputes will be arbitrated only on an individual basis and will not be consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. But if, for any reason, any court with competent jurisdiction or any arbitrator selected pursuant to Section 15.2(a) above holds that this restriction is unconscionable or unenforceable, then our agreement in Section 15.2 above to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section 15.7 below.
15.7 Federal and State Courts in Los Angeles. Except to the extent that arbitration is required in Section 15.2 above, and except as to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute may only be instituted in state or federal court in Los Angeles County, California. Accordingly, You and Company consent to the exclusive personal jurisdiction and venue of such courts for such matters.
16. Open Source Components: The Application may contain certain "open source" components which are distributed by Company to You under the terms of the applicable open source license agreements (including, without limitation, all provisions disclaiming warranties and limiting liability) and not this EULA ("Open Source Component"). Information about Open Source Components can be found in the materials provided on the applicable product page on Company's Consumer Relations website, located at http://service.mattel.com (the "Service Site"). To locate the product page, go to the Service Site, search the product name in the "Guided Search" box, and then select the applicable product. Any applicable open source license agreements are incorporated herein by reference.
17. Miscellaneous Provisions:
17.1 You are responsible for obtaining and maintaining Your device and other equipment and software, and all Internet service provider, mobile service, and other services needed for Your access to and use of the Application and You will be responsible for all charges related to them.
17.2 If You acquired the Application in the United States, this EULA will be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with, the laws of the State of New York, without regard to its conflicts of law provisions. If You acquired the Application elsewhere, unless expressly prohibited by local law, this EULA is governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with, the laws of the State of New York, without regard to its conflicts of law provisions.
17.3 If any provision of this EULA is for any reason deemed invalid, unlawful, void, or unenforceable by a court of competent jurisdiction, then that provision will be deemed severable from this EULA and the invalidity of the provision will not affect the validity or enforceability of the remainder of this EULA (which will remain in full force and effect). To the extent permitted by applicable law, You agree to waive, and You hereby waive any applicable statutory and common law that may permit a contract to be construed against its drafter.
17.4 Company reserves the right to discontinue any services provided to You or made available to You through the use of the Application.
17.5 This EULA constitutes the entire agreement between the parties with respect to the use of the Application licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter. This EULA may be changed from time to time by Company. Changes to this EULA will be provided with Application updates. You agree that Your continued use of the Application after any such change has first been promulgated by Company 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:
Via e-mail: FisherPriceConsumerRelations@mattel.com; or
Via phone: 1-800-432-5437.
Short Summary
This summary is provided for convenience; read the Mattel Privacy Statement for full details and how to contact us with questions.
CHILDREN. We protect the privacy of kids under 13 and don’t collect more information than we need.
CONTACT DETAILS.
LOCATION INFO. We collect general location info (e.g., zip code), but not specific address absent consent.
COOKIES AND TECHNOLOGY. We, agents, 3rd party service providers, app providers, analytics companies and ad networks collect some info automatically using technology.
USE. Info collected is used to provide and improve products and services, fulfill requests, understand consumers, optimize functionality, and manage content and advertising.
SHARING. We may share information:
LINKS. Apps may link to or use content from the Internet, including content offered by third parties that we do not control and whose privacy and data collection practices may differ from ours, including social media or networking sites.
APP CONTROLS. Your device may allow you to block or manage push notifications, location information, in-app purchases, geo-tagging of photos or videos, or ability to access the web.
OTHER IMPORTANT INFO. See our full Privacy Statement for more important info, such as security, transfers of data to other countries, and how we will notify you of updates.
Smart Connect Mobile Application
End User License Agreement
This End User License Agreement ("EULA") is a legal agreement between you ("You") and Fisher-Price, Inc. (together with its parent Mattel, Inc., "Company").
Platform: Apple App Store
Platform Provider: Apple, Inc.
PLEASE READ THIS EULA CAREFULLY BEFORE INSTALLING OR USING THIS APPLICATION OR ANY APPLICATION UPGRADE (AS DEFINED IN SECTION 4) (TOGETHER, THE "APPLICATION"). BY INSTALLING OR USING THE APPLICATION, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS EULA AND CONSENT TO THE PRIVACY STATEMENT. IF YOU DO NOT AGREE, THEN DO NOT INSTALL OR USE THE APPLICATION. If You are uncertain about Your right to use or install certain materials, You should contact legal counsel.
1. License Grant. Subject to Your compliance with the terms and conditions of this EULA, Company grants to You a personal, limited, non-transferable license to use the Application on one or more Platform-compatible devices that You own or control, as permitted by and in accordance with the Platform Provider's terms of service. Your purchase, installation and use of the Application is subject to the Platform Provider's terms of service, privacy policy and other applicable polices made available by the Platform Provider. In addition, You must comply with applicable third party terms and conditions governing any other products or services in connection with which You use the Application. Please be aware that Platform may collect analytics, usage statistics, technical or other data about or through the Application and/or Your device separate from Company's collection of data as described in Section 2.2. Company is not responsible for the Platform Provider's collection of data or the use of data collected by the Platform Provider.
2. Description of other Rights and Restrictions.
2.1 Use of Application. You may use the Application only in accordance with the terms and conditions set forth in this EULA. You may use the Application solely for lawful purposes. In each instance, the use of the Application is solely for Your own personal and private non-commercial use (including printing and saving of content for personal use only) 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). Use of this Application may require that You update the operating system of Your device to the current version of the operating system.
2.2 Consent to Use of Data. You consent to our data practices as described in our Privacy Statement. Without limiting the generality of the foregoing, You agree that Company (and, for clarity, its affiliates, and contractors providing services to Company) may collect and use technical data and related information, including without limitation, technical information about Your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to You (if any) related to the Application. Company may use this information as long as it is in a form that does not personally identify You, to improve its products or to provide services or technologies to You. For more information about how we may use Your information, please visit our Privacy Statement, which we may revise from time to time as provided therein.
2.3 Restrictions: Except as expressly permitted by the license grant in Section 1, You may not distribute or make the Application available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the Application. You may not: (a) copy, modify or create derivative works of the Application or any part thereof (including any content made available through the Application); or (b) decompile, reverse engineer, disassemble, or otherwise reduce the Application to human-perceivable form (except as and only to the extent the foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Application). Any attempt to do so is a violation of the rights of Company and its licensors. You shall not remove any copyright, trademark or other proprietary notices contained in the Application. You shall not exploit the Application in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity.
3. Linked Websites; Advertisements; Dealings with Third Parties.
3.1 Company Websites; Linked Websites; Advertisements. The Application may contain links to or enable access websites owned or operated by Company ("Company Websites") and to third party services and websites not affiliated with the Company ("Linked Websites"). All use of Company Websites is governed by the terms and conditions and privacy statements posted on such sites. Use of the Company Websites and Linked Websites may require Internet or mobile services access and that You accept additional terms of service. Company has no control over the content, operations, policies, terms, or other elements of Linked Websites, and Company does not assume any obligation to review any Linked Websites. Company does not endorse, approve, or sponsor any Linked Websites, or any third party content, advertising, information, materials, products, services, applications or other items. Company disclaims all liability in connection therewith. Any activities You engage in connection with any of the same are at Your sole risk and subject to the privacy and other policies, terms and conditions of use, and rules issued by the operator of the Linked Websites. Company disclaims all liability in connection therewith.
3.2 Dealings with Third Parties. Any interactions, correspondence, transactions, and other dealings that You have with any third parties found on or through the Application (including on or via Linked Websites or advertisements) are solely between You and the third party (including issues related to the content of third party advertisements, payments, delivery of goods, warranties (including product warranties), privacy and data security, and the like). Company disclaims all liability in connection therewith.
4. Application Upgrades. The term Application of this EULA apply to any upgrades, supplements, add-on components, or Internet or mobile-based services components that Company may provide or make available to You in connection with the Application ("Application Upgrades"), unless superseded by a new license or additional terms accompanying such upgrade, supplement, add-on component, or Internet or mobile-based services component, in which case the new license will govern.
5. Ownership; Reservation of Rights. This Application contains copyrighted material, trademarks and other intellectual property that is owned by Company or that is provided by and belongs to third parties ("Third Party Providers"). Company and its Third Party Providers own and will retain all title, interest, ownership rights and intellectual property rights in and to the Application and all parts thereof (including content made available through the Application), and reserve all rights not expressly granted to You in this EULA. The Application is licensed, not sold.
6. Representations and Warranties By End User: You represent and warrant that You (a) are the age of majority in Your state of residence (which is typically 18 years of age in most states) and have the legal capacity to enter into this EULA , (b) that You will use the Application only for lawful purposes and in accordance with this EULA, and (c) that You will not use the Application to violate any law, regulation or ordinance or any right of Company, its licensors or any third party, including without limitation, any right of privacy, publicity, copyright, trademark, or patent.
7. Termination: This EULA is effective until terminated. Without prejudice to any other rights, Your rights under this EULA will terminate automatically without notice from Company should You fail to comply with any of the terms of the EULA. Upon termination, You agree to cease all use of the Application, disinstall it and destroy all copies of the Application. Sections 2.3, 5, 7-11, 15 - 17 shall survive termination of this EULA.
8. Disclaimer of Warranties: YOUR USE OF THE APPLICATION IS AT YOUR SOLE RISK.
THIS APPLICATION AND SUPPORT SERVICES (IF ANY) ARE PROVIDED ON AN "AS IS", "AS AVAILABLE", AND "WITH ALL FAULTS" BASIS. Therefore, to the fullest extent permissible by law, Company and its subsidiaries and each of their respective employees, directors, members, mangers, shareholders, agents, vendors, licensors (including the Platform Provider), licensees, contractors, customers, successors, and assigns (collectively, "Company Parties") hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied as to:
· The functions, features, or any other elements in, or made accessible through, the Application;
· Any products, services, or instructions offered or referenced at or linked through the Application (except for any specific warranties provided in additional terms provided by a Company Party who is also a product manufacturer that are included with a product that You purchase from us);
· Whether the Application is free from any harmful components (including viruses, Trojan horses, and other technologies that could adversely impact Your device);
· Whether the information (including any instructions) in the Application is accurate, complete, correct, adequate, useful, timely, or reliable;
· Whether any defects to the Application will be repaired; and
· Whether Your use of the Application is lawful in any particular jurisdiction.
EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, COMPANY PARTIES FURTHER HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSES, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS. FURTHER, COMPANY MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO ANY THIRD PARTY SOFTWARE INCLUDED WITH THE APPLICATION. TO THE EXTENT A WARRANTY MAY NOT BE DISCLAIMED AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM REQUIRED UNDER SUCH LAW.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY, ITS DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.
9. Limitation of Liability:
9.1 UNDER NO CIRCUMSTANCES WILL ANY COMPANY PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental, or consequential losses or damages that are directly or indirectly related to:
a. the Application;
b. Your use of or inability to use Application, or the performance of the Application;
c. any action taken in connection with an investigation by Company or law enforcement authorities regarding Your access to or use of the Application;
d. any action taken in connection with copyright or other intellectual property owners or other rights owners;
e. any errors or omissions in the Application's technical operation; or
f. any damage to Your device, computer, hardware, software, modem, or other equipment or technology, including damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line, or network failure or any other technical or other malfunction, including losses or damages in the form of lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or equipment failure or malfunction.
9.2 The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if Company was advised of or should have known of the possibility of such losses or damages, regardless of whether You bring an action of contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of God, telecommunications failure, or destruction of the Application).
9.3 Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages of the sort that are described above, so the above limitation or exclusion may not apply to You.
9.4 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE TOTAL LIABILITY OF COMPANY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE APPLICATION AND YOUR RIGHTS UNDER THIS EULA, EXCEED $50; PROVIDED, HOWEVER, THIS PROVISION WILL NOT APPLY IF A TRIBUNAL WITH APPLICABLE JURISDICTION FINDS SUCH TO BE UNCONSCIONABLE. FOR PURPOSES OF CLARITY, THE PRIOR SENTENCE DOES NOT EXPAND OR LIMIT ANY PRODUCT WARRANTY THAT IS PROVIDED BY A MANUFACTURER OF A PHYSICAL PRODUCT.
9.5 With respect to any electronic commercial service on a Company website, residents of California are entitled to the following specific consumer rights information: if You have a complaint, You may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs by mail at 400 R St., Suite 1080, Sacramento, California, 95814, or by telephone at 916.445.1254. See also: http://www.dca.ca.gov.
10. Indemnity: You agree to, and You hereby, defend, indemnify, and hold Company Parties from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys' fees) that directly or indirectly arise from or related to any claim, suit, action, demand, or proceeding made or brought against any Company Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with (A) Your use of the Application and Your activities in connection with the Application, (B) Your breach or anticipatory breach of this EULA, (C) Your violation or anticipatory violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental and quasi-governmental authorities in connection with Your use of the Applications or Your activities in connection with the Application, and (D) any misrepresentation made by You (all of the foregoing, "Claims and Losses"). You will cooperate as fully required by Company in the defense of any Claim and Losses. Notwithstanding the foregoing, Company Parties retain the exclusive right to settle, compromise, and pay any and all Claims and Losses. Company Parties reserve the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a Company Party.
11. Injunctive Relief: Because Company would be irreparably injured in the event of Your breach of any terms of this EULA or Your use of the Application beyond the scope permitted hereunder, You agree that: (a) Company will be entitled to seek and obtain, on an expedited basis from any court of competent jurisdiction, immediate injunctive relief to enjoin any breach or prospective breach of this EULA, and (b) You will not object to any such application for injunctive relief on the grounds that Company's losses may be compensated by monetary damages.
12. U.S. Government Restricted Rights and Export Provisions:
12.1 The Application is "commercial computer software" or "commercial computer software documentation." The United States Government's rights with respect to the Application are limited by the terms of this License Agreement, pursuant to FAR § 12.212(a) and/or DFARS § 227.7202-1(a), as applicable.
12.2 You agree by installing or otherwise using the Application that:
a. You do not reside in and are not a national or resident of a country or other jurisdiction to which the U.S. Government has embargoed goods, software, technology or services;
b. You are not on the U.S. Treasury Department's List of Specifically Designated Nationals or the U.S. Commerce Department's Table of Deny Orders;
c. You are not on the U.S. Department of Commerce's Bureau of Industry and Security Entities List as published in the Export Administration Regulations (including entities engaged in weapons of mass destruction proliferation in various countries and persons and entities that are suspected of diverting U.S. origin items to embargoed countries or terrorist end-users; and
d. You will not use the Application for any illegal purpose.
12.3 Because the Application and related technical data may be subject to United States export controls, You agree that You shall not export or "re-export" (transfer) the Application unless You have complied with all applicable U.S. export controls.
13. Wireless Features
13.1 The Application may offer certain features and services that are available to You via Your Device. These features and services may include the ability to access the Application's features and upload content to the Application, receive messages from the Application, make in-app purchases, and download content to Your device (collectively, "Wireless Features"). Standard messaging, data, and other fees may be charged by Your carrier to participate in Wireless Features. Fees and charges may appear on Your wireless bill or be deducted from Your pre-paid balance. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with Your carrier or wireless Internet device. You should check with Your carrier to find out what plans are available and how much they cost. Contact Your carrier with questions regarding these issues.
13.2 You agree that as to the Wireless Features for which You are registered, we may send communications to Your device regarding us or other parties - unless You cancel Your registration or opt-out in accordance with any procedure established by Company or by law. Further, we may collect information related to Your use of the Wireless Features. If You have registered via the Application for Wireless Features, then You agree to notify Company of any changes to Your wireless number (including phone number) and update Your accounts in the Application to reflect the changes, or notify Company when You wish to terminate Your registration.
14. Terms Applicable for the Platform: The following additional terms and conditions are applicable to You and are incorporated into this EULA by this reference:
14.1 To the extent that You are accessing the Application through an Apple device, You acknowledge that this EULA is entered into between You and Company and, that Platform Provider is not a party to this EULA other than as third-party beneficiary as contemplated below.
14.2 The license granted to You in Section 1 [LINK] of these Terms is subject to the permitted Usage Rules set forth in the Platform Terms of Service (see: http://www.apple.com/legal/itunes/us/terms.html) and any third party terms of agreement applicable to the Application.
14.3 You acknowledge that Company, and not Platform Provider, is responsible for providing the Application and content thereof.
14.4 You acknowledge that Platform Provider has no obligation whatsoever to furnish any maintenance or any support services to You with respect to the Application.
14.5 Notwithstanding anything to the contrary herein, and subject to the terms in these Terms, You acknowledge that, solely as between Platform Provider and Company, Company, and not Platform Provider is responsible for addressing any claims You or any third party may have relating to the Application, or Your possession and/or use thereof, including, but not limited, to: (i) product liability claims, (ii) any claim that the Application fails to confirm to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
14.6 You agree that if the Application, or Your possession and use of the Application, infringes on a third party's intellectual property rights, You will not hold Platform Provider responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims.
14.7 You acknowledge and agree that Platform Provider, and its subsidiaries, are third-party beneficiaries of these Terms, and that, upon Your acceptance of the terms and conditions of these Terms, Platform Provider will have the right (and will be deemed to have accepted the right) to enforce this EULA against You as a third-party beneficiary thereof.
14.8 When using the Application, You agree to comply with any and all third-party terms that are applicable to any platform, website, technology or service that interacts with the Application.
14.9 IN THE EVENT THE APPLICATION FAILS TO CONFORM TO ANY APPLICABLE WARRANTY, YOU MAY NOTIFY PLATFORM PROVIDER AND PLATFORM PROVIDER WILL REFUND THE PURCHASE PRICE FOR THE APPLICATION TO YOU, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, PLATFORM PROVIDER WILL HAVE NO OTHER WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THE APPLICATION OR ANY OTHER CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES ATTRIBUTABLE TO ANY FAILURE TO CONFORM TO SUCH WARRANTY. The foregoing limitations will apply even if any remedy under this EULA fails of its essential purpose.
14. Dispute Resolution: Certain portions of this Section 15 are deemed to be a "written agreement to arbitrate" pursuant to the Federal Arbitration Act. You and Company agree that we intend that this Section 15 satisfies the "writing" requirement of the Federal Arbitration Act.
14.1 First -- Try to Resolve Disputes and Excluded Disputes. If any controversy, allegation, or claim arises out of or relates to the Application or this EULA (collectively, "Dispute"), or to any of Company's actual or alleged intellectual property rights (an "Excluded Dispute", which includes those actions set forth in Section15.4 below), then You and Company agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. Our notice to You will be sent to You based on the most recent contact information that You provide us. But if no such information exists or if such information is not current, then we have no obligation under this Section 15.1. Your notice to us must be sent to: Mattel, Inc., 333 Continental Boulevard, El Segundo, California, 90245, U.S.A., Attention: General Counsel. For a period of 60 days from the date of receipt of notice from the other party, Company and You will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either You or Company to resolve the Dispute or Excluded Dispute on terms with respect to which You and Company, in each party's sole discretion, are not comfortable.
14.2 Forums for Alternative Dispute Resolution.
a. Arbitration.
If we cannot resolve a Dispute as set forth in Section 15.1 above within 60 days of receipt of the notice, then either You or Company may submit the Dispute to formal arbitration in accordance with this Section 15.2. If we cannot resolve an Excluded Dispute as set forth in Section 15.1 above within 60 days of receipt of the notice, then either You or Company may submit the Excluded Dispute to formal arbitration only if You and Company consent, in a writing signed by You and Company, Inc.'s General Counsel, to have that Excluded Dispute subject to arbitration. In such a case (and only in such a case), that Excluded Dispute will be deemed a "Dispute" for the remainder of this Section 15.2.
Upon expiration of the applicable 60-day period and to the fullest extent permitted by applicable law, a Dispute will be resolved solely by binding arbitration in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association ("AAA"). If the Dispute has a claimed value of not more than $250,000, then the arbitration will be heard and determined by a single neutral arbitrator who is a retired judge or a lawyer with not less than 15 years' experience as a practicing member of the bar in the substantive practice area related to the Dispute, who will administer the proceedings in accordance with the AAA's Supplementary Procedures for Consumer Related Disputes. If the Dispute has a claimed value of more than $250,000, or if Company elects in its sole discretion to bear the costs of arbitration in excess of those that would occur for a proceeding before a single neutral arbitrator, then the arbitration will be heard and determined by a three member panel, with one member to be selected by each party and the third (who will be chair of the panel) selected by the two party appointed members or by the AAA in accordance with the Commercial Arbitration Rules. The arbitrator or arbitration panel, as the case may be, will apply applicable law and the provisions of this User Agreement and any Additional Terms, will determine any Dispute according to the applicable law and facts based upon the record and no other basis, and will issue a reasoned award. If You and Company do not both consent to the arbitration of an Excluded Dispute as set forth in the immediately preceding paragraph of this Section 15.2(a), then this paragraph and the remainder of this Section 15.1 will not apply to the Excluded Dispute.
If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling or unable to set a hearing date within 60 days of the filing of a "demand for arbitration," then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. ("JAMS") using JAMS' streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that You and a legal officer of Company consents to in writing. The substantive practice area requirements for the arbitrator and the $250,000 threshold for the number of arbitrators assigned to the Dispute set forth in the paragraph above for the AAA arbitration will also apply to any such arbitration under JAMS or another arbitration service.
You can obtain AAA and JAMS procedures, rules, and fee information as follows:
AAA:
800.778.7879
http://www.adr.org/
JAMS:
949.224.1810
http://www.jamsadr.com
b. Nature, Limitations, and Location of Alternative Dispute Resolution. In arbitration, as with a court, the arbitrator must honor the terms of this EULA and can award the prevailing party damages and other relief (including attorneys' fees). However, WITH ARBITRATION (A) THERE IS NO JUDGE OR JURY, (B) THE ARBITRATION PROCEEDINGS AND ARBITRATION OUTCOME ARE SUBJECT TO CERTAIN CONFIDENTIALITY RULES, AND (C) JUDICIAL REVIEW OF THE ARBITRATION OUTCOME IS LIMITED. All parties to the arbitration will have the right, at their own expense, to be represented by an attorney or other advocate of their choosing. If an in-person arbitration hearing is required, then it will be conducted in the "metropolitan statistical area" (as defined by the U.S. Census Bureau) where You are a resident at the time the Dispute is submitted to arbitration. You and Company will pay the administrative and arbitrator's fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require Company to pay a greater portion or all of such fees and costs in order for this Section 15 to be enforceable, then Company will have the right to elect to pay the fees and costs and proceed to arbitration. Discovery will be permitted pursuant to the applicable arbitration rules. The arbitrator's decision must consist of a written statement stating the disposition of each claim of the Dispute, and must provide a statement of the essential findings and conclusions on which the decision and any award (if any) is based. Judgment on the arbitration decision and award (if any) may be entered in or by any court that has jurisdiction over the parties pursuant to Section 9 of the Federal Arbitration Act.
14.3 Limited Time to File Claims. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR COMPANY WANT TO ASSERT A DISPUTE (BUT NOT AN EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 15.1 ABOVE) WITHIN 1 YEAR AFTER THE DISPUTE ARISES -- OR IT WILL BE FOREVER BARRED.
14.4 Injunctive Relief. The foregoing provisions of this Section 15 will not apply to any legal action taken by Company to seek an injunction or other equitable relief in connection with any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Application and/or Company's intellectual property rights (including such Company may claim that may be in dispute), Company's operations, and/or Company's products or services.
14.5 Small Claims Matters Are Excluded from Arbitration Requirement. Notwithstanding the foregoing, either of us may bring a qualifying claim of Disputes (but not Excluded Disputes) in small claims court.
14.6 No Class Action Matters. Disputes will be arbitrated only on an individual basis and will not be consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. But if, for any reason, any court with competent jurisdiction or any arbitrator selected pursuant to Section 15.2(a) above holds that this restriction is unconscionable or unenforceable, then our agreement in Section 15.2 above to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section 15.7 below.
14.7 Federal and State Courts in Los Angeles. Except to the extent that arbitration is required in Section 15.2 above, and except as to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute may only be instituted in state or federal court in Los Angeles County, California. Accordingly, You and Company consent to the exclusive personal jurisdiction and venue of such courts for such matters.
15. Open Source Components: The Application may contain certain "open source" components which are distributed by Company to You under the terms of the applicable open source license agreements (including, without limitation, all provisions disclaiming warranties and limiting liability) and not this EULA ("Open Source Component"). Information about Open Source Components can be found in the materials provided on the applicable product page on Company's Consumer Relations website, located at http://service.mattel.com (the "Service Site"). To locate the product page, go to the Service Site, search the product name in the "Guided Search" box, and then select the applicable product. Any applicable open source license agreements are incorporated herein by reference.
16. Miscellaneous Provisions:
16.1 You are responsible for obtaining and maintaining Your device and other equipment and software, and all Internet service provider, mobile service, and other services needed for Your access to and use of the Application and You will be responsible for all charges related to them.
16.2 If You acquired the Application in the United States, this EULA will be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with, the laws of the State of New York, without regard to its conflicts of law provisions. If You acquired the Application elsewhere, unless expressly prohibited by local law, this EULA is governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with, the laws of the State of New York, without regard to its conflicts of law provisions.
16.3 If any provision of this EULA is for any reason deemed invalid, unlawful, void, or unenforceable by a court of competent jurisdiction, then that provision will be deemed severable from this EULA and the invalidity of the provision will not affect the validity or enforceability of the remainder of this EULA (which will remain in full force and effect). To the extent permitted by applicable law, You agree to waive, and You hereby waive any applicable statutory and common law that may permit a contract to be construed against its drafter.
16.4 Company reserves the right to discontinue any services provided to You or made available to You through the use of the Application.
16.5 This EULA constitutes the entire agreement between the parties with respect to the use of the Application licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter. This EULA may be changed from time to time by Company. Changes to this EULA will be provided with Application updates. You agree that Your continued use of the Application after any such change has first been promulgated by Company shall constitute Your agreement to the updated EULA containing the changed terms.
17. Consumer Contact: If You have any questions regarding this EULA, or if You would like to contact Company for any other reason, write to:
Via e-mail: FisherPriceConsumerRelations@mattel.com; or
Via phone: 1-800-432-5437.
Short Summary
This summary is provided for convenience; read the Mattel Privacy Statement for full details and how to contact us with questions.
CHILDREN. We protect the privacy of kids under 13 and don’t collect more information than we need.
CONTACT DETAILS.
LOCATION INFO. We collect general location info (e.g., zip code), but not specific address absent consent.
COOKIES AND TECHNOLOGY. We, agents, 3rd party service providers, app providers, analytics companies and ad networks collect some info automatically using technology.
USE. Info collected is used to provide and improve products and services, fulfill requests, understand consumers, optimize functionality, and manage content and advertising.
SHARING. We may share information:
LINKS. Apps may link to or use content from the Internet, including content offered by third parties that we do not control and whose privacy and data collection practices may differ from ours, including social media or networking sites.
APP CONTROLS. Your device may allow you to block or manage push notifications, location information, in-app purchases, geo-tagging of photos or videos, or ability to access the web.
OTHER IMPORTANT INFO. See our full Privacy Statement for more important info, such as security, transfers of data to other countries, and how we will notify you of updates.
Smart Connect Mobile Application
End User License Agreement
This End User License Agreement ("EULA") is a legal agreement between you ("You") and Fisher-Price, Inc. (together with its parent Mattel, Inc., "Company").
Platform: Google Play
Platform Provider: Google Inc.
PLEASE READ THIS EULA CAREFULLY BEFORE INSTALLING OR USING THIS APPLICATION OR ANY APPLICATION UPGRADE (AS DEFINED IN SECTION 4) (TOGETHER, THE "APPLICATION"). BY INSTALLING OR USING THE APPLICATION, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS EULA AND CONSENT TO THE PRIVACY STATEMENT. IF YOU DO NOT AGREE, THEN DO NOT INSTALL OR USE THE APPLICATION. If You are uncertain about Your right to use or install certain materials, You should contact legal counsel.
1. License Grant. Subject to Your compliance with the terms and conditions of this EULA, Company grants to You a personal, limited, non-transferable license to use the Application on one or more Platform-compatible devices that You own or control, as permitted by and in accordance with the Platform Provider's terms of service. Your purchase, installation and use of the Application is subject to the Platform Provider's terms of service, privacy policy and other applicable polices made available by the Platform Provider. In addition, You must comply with applicable third party terms and conditions governing any other products or services in connection with which You use the Application. Please be aware that Platform may collect analytics, usage statistics, technical or other data about or through the Application and/or Your device separate from Company's collection of data as described in Section 2.2. Company is not responsible for the Platform Provider's collection of data or the use of data collected by the Platform Provider.
2. Description of other Rights and Restrictions.
2.1 Use of Application. You may use the Application only in accordance with the terms and conditions set forth in this EULA. You may use the Application solely for lawful purposes. In each instance, the use of the Application is solely for Your own personal and private non-commercial use (including printing and saving of content for personal use only) 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). Use of this Application may require that You update the operating system of Your device to the current version of the operating system.
2.2 Consent to Use of Data. You consent to our data practices as described in our Privacy Statement. Without limiting the generality of the foregoing, You agree that Company (and, for clarity, its affiliates, and contractors providing services to Company) may collect and use technical data and related information, including without limitation, technical information about Your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to You (if any) related to the Application. Company may use this information as long as it is in a form that does not personally identify You, to improve its products or to provide services or technologies to You. For more information about how we may use Your information, please visit our Privacy Statement, which we may revise from time to time as provided therein.
2.3 Restrictions: Except as expressly permitted by the license grant in Section 1, You may not distribute or make the Application available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the Application. You may not: (a) copy, modify or create derivative works of the Application or any part thereof (including any content made available through the Application); or (b) decompile, reverse engineer, disassemble, or otherwise reduce the Application to human-perceivable form (except as and only to the extent the foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Application). Any attempt to do so is a violation of the rights of Company and its licensors. You shall not remove any copyright, trademark or other proprietary notices contained in the Application. You shall not exploit the Application in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity.
3. Linked Websites; Advertisements; Dealings with Third Parties.
3.1 Company Websites; Linked Websites; Advertisements. The Application may contain links to or enable access websites owned or operated by Company ("Company Websites") and to third party services and websites not affiliated with the Company ("Linked Websites"). All use of Company Websites is governed by the terms and conditions and privacy statements posted on such sites. Use of the Company Websites and Linked Websites may require Internet or mobile services access and that You accept additional terms of service. Company has no control over the content, operations, policies, terms, or other elements of Linked Websites, and Company does not assume any obligation to review any Linked Websites. Company does not endorse, approve, or sponsor any Linked Websites, or any third party content, advertising, information, materials, products, services, applications or other items. Company disclaims all liability in connection therewith. Any activities You engage in connection with any of the same are at Your sole risk and subject to the privacy and other policies, terms and conditions of use, and rules issued by the operator of the Linked Websites. Company disclaims all liability in connection therewith.
3.2 Dealings with Third Parties. Any interactions, correspondence, transactions, and other dealings that You have with any third parties found on or through the Application (including on or via Linked Websites or advertisements) are solely between You and the third party (including issues related to the content of third party advertisements, payments, delivery of goods, warranties (including product warranties), privacy and data security, and the like). Company disclaims all liability in connection therewith.
4. Application Upgrades. The term Application of this EULA apply to any upgrades, supplements, add-on components, or Internet or mobile-based services components that Company may provide or make available to You in connection with the Application ("Application Upgrades"), unless superseded by a new license or additional terms accompanying such upgrade, supplement, add-on component, or Internet or mobile-based services component, in which case the new license will govern.
5. Ownership; Reservation of Rights. This Application contains copyrighted material, trademarks and other intellectual property that is owned by Company or that is provided by and belongs to third parties ("Third Party Providers"). Company and its Third Party Providers own and will retain all title, interest, ownership rights and intellectual property rights in and to the Application and all parts thereof (including content made available through the Application), and reserve all rights not expressly granted to You in this EULA. The Application is licensed, not sold.
6. Representations and Warranties By End User: You represent and warrant that You (a) are the age of majority in Your state of residence (which is typically 18 years of age in most states) and have the legal capacity to enter into this EULA , (b) that You will use the Application only for lawful purposes and in accordance with this EULA, and (c) that You will not use the Application to violate any law, regulation or ordinance or any right of Company, its licensors or any third party, including without limitation, any right of privacy, publicity, copyright, trademark, or patent.
7. Termination: This EULA is effective until terminated. Without prejudice to any other rights, Your rights under this EULA will terminate automatically without notice from Company should You fail to comply with any of the terms of the EULA. Upon termination, You agree to cease all use of the Application, disinstall it and destroy all copies of the Application. Sections 2.3, 5, 7-11, 15 - 17 shall survive termination of this EULA.
8. Disclaimer of Warranties: YOUR USE OF THE APPLICATION IS AT YOUR SOLE RISK.
THIS APPLICATION AND SUPPORT SERVICES (IF ANY) ARE PROVIDED ON AN "AS IS", "AS AVAILABLE", AND "WITH ALL FAULTS" BASIS. Therefore, to the fullest extent permissible by law, Company and its subsidiaries and each of their respective employees, directors, members, mangers, shareholders, agents, vendors, licensors (including the Platform Provider), licensees, contractors, customers, successors, and assigns (collectively, "Company Parties") hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied as to:
· The functions, features, or any other elements in, or made accessible through, the Application;
· Any products, services, or instructions offered or referenced at or linked through the Application (except for any specific warranties provided in additional terms provided by a Company Party who is also a product manufacturer that are included with a product that You purchase from us);
· Whether the Application is free from any harmful components (including viruses, Trojan horses, and other technologies that could adversely impact Your device);
· Whether the information (including any instructions) in the Application is accurate, complete, correct, adequate, useful, timely, or reliable;
· Whether any defects to the Application will be repaired; and
· Whether Your use of the Application is lawful in any particular jurisdiction.
EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, COMPANY PARTIES FURTHER HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSES, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS. FURTHER, COMPANY MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO ANY THIRD PARTY SOFTWARE INCLUDED WITH THE APPLICATION. TO THE EXTENT A WARRANTY MAY NOT BE DISCLAIMED AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM REQUIRED UNDER SUCH LAW.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY, ITS DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.
9. Limitation of Liability:
9.1 UNDER NO CIRCUMSTANCES WILL ANY COMPANY PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental, or consequential losses or damages that are directly or indirectly related to:
a. the Application;
b. Your use of or inability to use Application, or the performance of the Application;
c. any action taken in connection with an investigation by Company or law enforcement authorities regarding Your access to or use of the Application;
d. any action taken in connection with copyright or other intellectual property owners or other rights owners;
e. any errors or omissions in the Application's technical operation; or
f. any damage to Your device, computer, hardware, software, modem, or other equipment or technology, including damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line, or network failure or any other technical or other malfunction, including losses or damages in the form of lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or equipment failure or malfunction.
9.2 The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if Company was advised of or should have known of the possibility of such losses or damages, regardless of whether You bring an action of contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of God, telecommunications failure, or destruction of the Application).
9.3 Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages of the sort that are described above, so the above limitation or exclusion may not apply to You.
9.4 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE TOTAL LIABILITY OF COMPANY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE APPLICATION AND YOUR RIGHTS UNDER THIS EULA, EXCEED $50; PROVIDED, HOWEVER, THIS PROVISION WILL NOT APPLY IF A TRIBUNAL WITH APPLICABLE JURISDICTION FINDS SUCH TO BE UNCONSCIONABLE. FOR PURPOSES OF CLARITY, THE PRIOR SENTENCE DOES NOT EXPAND OR LIMIT ANY PRODUCT WARRANTY THAT IS PROVIDED BY A MANUFACTURER OF A PHYSICAL PRODUCT.
9.5 With respect to any electronic commercial service on a Company website, residents of California are entitled to the following specific consumer rights information: if You have a complaint, You may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs by mail at 400 R St., Suite 1080, Sacramento, California, 95814, or by telephone at 916.445.1254. See also: http://www.dca.ca.gov.
10. Indemnity: You agree to, and You hereby, defend, indemnify, and hold Company Parties from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys' fees) that directly or indirectly arise from or related to any claim, suit, action, demand, or proceeding made or brought against any Company Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with (A) Your use of the Application and Your activities in connection with the Application, (B) Your breach or anticipatory breach of this EULA, (C) Your violation or anticipatory violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental and quasi-governmental authorities in connection with Your use of the Applications or Your activities in connection with the Application, and (D) any misrepresentation made by You (all of the foregoing, "Claims and Losses"). You will cooperate as fully required by Company in the defense of any Claim and Losses. Notwithstanding the foregoing, Company Parties retain the exclusive right to settle, compromise, and pay any and all Claims and Losses. Company Parties reserve the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a Company Party.
11. Injunctive Relief: Because Company would be irreparably injured in the event of Your breach of any terms of this EULA or Your use of the Application beyond the scope permitted hereunder, You agree that: (a) Company will be entitled to seek and obtain, on an expedited basis from any court of competent jurisdiction, immediate injunctive relief to enjoin any breach or prospective breach of this EULA, and (b) You will not object to any such application for injunctive relief on the grounds that Company's losses may be compensated by monetary damages.
12. U.S. Government Restricted Rights and Export Provisions:
12.1 The Application is "commercial computer software" or "commercial computer software documentation." The United States Government's rights with respect to the Application are limited by the terms of this License Agreement, pursuant to FAR § 12.212(a) and/or DFARS § 227.7202-1(a), as applicable.
12.2 You agree by installing or otherwise using the Application that:
a. You do not reside in and are not a national or resident of a country or other jurisdiction to which the U.S. Government has embargoed goods, software, technology or services;
b. You are not on the U.S. Treasury Department's List of Specifically Designated Nationals or the U.S. Commerce Department's Table of Deny Orders;
c. You are not on the U.S. Department of Commerce's Bureau of Industry and Security Entities List as published in the Export Administration Regulations (including entities engaged in weapons of mass destruction proliferation in various countries and persons and entities that are suspected of diverting U.S. origin items to embargoed countries or terrorist end-users; and
d. You will not use the Application for any illegal purpose.
12.3 Because the Application and related technical data may be subject to United States export controls, You agree that You shall not export or "re-export" (transfer) the Application unless You have complied with all applicable U.S. export controls.
13. Wireless Features
13.1 The Application may offer certain features and services that are available to You via Your Device. These features and services may include the ability to access the Application's features and upload content to the Application, receive messages from the Application, make in-app purchases, and download content to Your device (collectively, "Wireless Features"). Standard messaging, data, and other fees may be charged by Your carrier to participate in Wireless Features. Fees and charges may appear on Your wireless bill or be deducted from Your pre-paid balance. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with Your carrier or wireless Internet device. You should check with Your carrier to find out what plans are available and how much they cost. Contact Your carrier with questions regarding these issues.
13.2 You agree that as to the Wireless Features for which You are registered, we may send communications to Your device regarding us or other parties - unless You cancel Your registration or opt-out in accordance with any procedure established by Company or by law. Further, we may collect information related to Your use of the Wireless Features. If You have registered via the Application for Wireless Features, then You agree to notify Company of any changes to Your wireless number (including phone number) and update Your accounts in the Application to reflect the changes, or notify Company when You wish to terminate Your registration.
14. Terms Applicable for the Platform: The following additional terms and conditions are applicable to you and are incorporated into this EULA by this reference: The license granted to you in Section 1 of these Terms is subject to the Google Play Terms of Service (see: https://play.google.com/intl/en_us/about/play-terms.html) and any third party terms of agreement applicable to the Application.
15. Dispute Resolution: Certain portions of this Section 15 are deemed to be a "written agreement to arbitrate" pursuant to the Federal Arbitration Act. You and Company agree that we intend that this Section 15 satisfies the "writing" requirement of the Federal Arbitration Act.
15.1 First -- Try to Resolve Disputes and Excluded Disputes. If any controversy, allegation, or claim arises out of or relates to the Application or this EULA (collectively, "Dispute"), or to any of Company's actual or alleged intellectual property rights (an "Excluded Dispute", which includes those actions set forth in Section15.4 below), then You and Company agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. Our notice to You will be sent to You based on the most recent contact information that You provide us. But if no such information exists or if such information is not current, then we have no obligation under this Section 15.1. Your notice to us must be sent to: Mattel, Inc., 333 Continental Boulevard, El Segundo, California, 90245, U.S.A., Attention: General Counsel. For a period of 60 days from the date of receipt of notice from the other party, Company and You will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either You or Company to resolve the Dispute or Excluded Dispute on terms with respect to which You and Company, in each party's sole discretion, are not comfortable.
15.2 Forums for Alternative Dispute Resolution.
a. Arbitration.
If we cannot resolve a Dispute as set forth in Section 15.1 above within 60 days of receipt of the notice, then either You or Company may submit the Dispute to formal arbitration in accordance with this Section 15.2. If we cannot resolve an Excluded Dispute as set forth in Section 15.1 above within 60 days of receipt of the notice, then either You or Company may submit the Excluded Dispute to formal arbitration only if You and Company consent, in a writing signed by You and Company, Inc.'s General Counsel, to have that Excluded Dispute subject to arbitration. In such a case (and only in such a case), that Excluded Dispute will be deemed a "Dispute" for the remainder of this Section 15.2.
Upon expiration of the applicable 60-day period and to the fullest extent permitted by applicable law, a Dispute will be resolved solely by binding arbitration in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association ("AAA"). If the Dispute has a claimed value of not more than $250,000, then the arbitration will be heard and determined by a single neutral arbitrator who is a retired judge or a lawyer with not less than 15 years' experience as a practicing member of the bar in the substantive practice area related to the Dispute, who will administer the proceedings in accordance with the AAA's Supplementary Procedures for Consumer Related Disputes. If the Dispute has a claimed value of more than $250,000, or if Company elects in its sole discretion to bear the costs of arbitration in excess of those that would occur for a proceeding before a single neutral arbitrator, then the arbitration will be heard and determined by a three member panel, with one member to be selected by each party and the third (who will be chair of the panel) selected by the two party appointed members or by the AAA in accordance with the Commercial Arbitration Rules. The arbitrator or arbitration panel, as the case may be, will apply applicable law and the provisions of this User Agreement and any Additional Terms, will determine any Dispute according to the applicable law and facts based upon the record and no other basis, and will issue a reasoned award. If You and Company do not both consent to the arbitration of an Excluded Dispute as set forth in the immediately preceding paragraph of this Section 15.2(a), then this paragraph and the remainder of this Section 15.1 will not apply to the Excluded Dispute.
If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling or unable to set a hearing date within 60 days of the filing of a "demand for arbitration," then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. ("JAMS") using JAMS' streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that You and a legal officer of Company consents to in writing. The substantive practice area requirements for the arbitrator and the $250,000 threshold for the number of arbitrators assigned to the Dispute set forth in the paragraph above for the AAA arbitration will also apply to any such arbitration under JAMS or another arbitration service.
You can obtain AAA and JAMS procedures, rules, and fee information as follows:
AAA:
800.778.7879
http://www.adr.org/
JAMS:
949.224.1810
http://www.jamsadr.com
b. Nature, Limitations, and Location of Alternative Dispute Resolution. In arbitration, as with a court, the arbitrator must honor the terms of this EULA and can award the prevailing party damages and other relief (including attorneys' fees). However, WITH ARBITRATION (A) THERE IS NO JUDGE OR JURY, (B) THE ARBITRATION PROCEEDINGS AND ARBITRATION OUTCOME ARE SUBJECT TO CERTAIN CONFIDENTIALITY RULES, AND (C) JUDICIAL REVIEW OF THE ARBITRATION OUTCOME IS LIMITED. All parties to the arbitration will have the right, at their own expense, to be represented by an attorney or other advocate of their choosing. If an in-person arbitration hearing is required, then it will be conducted in the "metropolitan statistical area" (as defined by the U.S. Census Bureau) where You are a resident at the time the Dispute is submitted to arbitration. You and Company will pay the administrative and arbitrator's fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require Company to pay a greater portion or all of such fees and costs in order for this Section 15 to be enforceable, then Company will have the right to elect to pay the fees and costs and proceed to arbitration. Discovery will be permitted pursuant to the applicable arbitration rules. The arbitrator's decision must consist of a written statement stating the disposition of each claim of the Dispute, and must provide a statement of the essential findings and conclusions on which the decision and any award (if any) is based. Judgment on the arbitration decision and award (if any) may be entered in or by any court that has jurisdiction over the parties pursuant to Section 9 of the Federal Arbitration Act.
15.3 Limited Time to File Claims. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR COMPANY WANT TO ASSERT A DISPUTE (BUT NOT AN EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 15.1 ABOVE) WITHIN 1 YEAR AFTER THE DISPUTE ARISES -- OR IT WILL BE FOREVER BARRED.
15.4 Injunctive Relief. The foregoing provisions of this Section 15 will not apply to any legal action taken by Company to seek an injunction or other equitable relief in connection with any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Application and/or Company's intellectual property rights (including such Company may claim that may be in dispute), Company's operations, and/or Company's products or services.
15.5 Small Claims Matters Are Excluded from Arbitration Requirement. Notwithstanding the foregoing, either of us may bring a qualifying claim of Disputes (but not Excluded Disputes) in small claims court.
15.6 No Class Action Matters. Disputes will be arbitrated only on an individual basis and will not be consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. But if, for any reason, any court with competent jurisdiction or any arbitrator selected pursuant to Section 15.2(a) above holds that this restriction is unconscionable or unenforceable, then our agreement in Section 15.2 above to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section 15.7 below.
15.7 Federal and State Courts in Los Angeles. Except to the extent that arbitration is required in Section 15.2 above, and except as to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute may only be instituted in state or federal court in Los Angeles County, California. Accordingly, You and Company consent to the exclusive personal jurisdiction and venue of such courts for such matters.
16. Open Source Components: The Application may contain certain "open source" components which are distributed by Company to You under the terms of the applicable open source license agreements (including, without limitation, all provisions disclaiming warranties and limiting liability) and not this EULA ("Open Source Component"). Information about Open Source Components can be found in the materials provided on the applicable product page on Company's Consumer Relations website, located at http://service.mattel.com (the "Service Site"). To locate the product page, go to the Service Site, search the product name in the "Guided Search" box, and then select the applicable product. Any applicable open source license agreements are incorporated herein by reference.
17. Miscellaneous Provisions:
17.1 You are responsible for obtaining and maintaining Your device and other equipment and software, and all Internet service provider, mobile service, and other services needed for Your access to and use of the Application and You will be responsible for all charges related to them.
17.2 If You acquired the Application in the United States, this EULA will be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with, the laws of the State of New York, without regard to its conflicts of law provisions. If You acquired the Application elsewhere, unless expressly prohibited by local law, this EULA is governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with, the laws of the State of New York, without regard to its conflicts of law provisions.
17.3 If any provision of this EULA is for any reason deemed invalid, unlawful, void, or unenforceable by a court of competent jurisdiction, then that provision will be deemed severable from this EULA and the invalidity of the provision will not affect the validity or enforceability of the remainder of this EULA (which will remain in full force and effect). To the extent permitted by applicable law, You agree to waive, and You hereby waive any applicable statutory and common law that may permit a contract to be construed against its drafter.
17.4 Company reserves the right to discontinue any services provided to You or made available to You through the use of the Application.
17.5 This EULA constitutes the entire agreement between the parties with respect to the use of the Application licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter. This EULA may be changed from time to time by Company. Changes to this EULA will be provided with Application updates. You agree that Your continued use of the Application after any such change has first been promulgated by Company 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:
Via e-mail: FisherPriceConsumerRelations@mattel.com; or
Via phone: 1-800-432-5437.
Function of App:
Q: What devices are compatible with the Smart Connect app?
A: Currently, the Smart Connect app is compatible with the following devices:
Apple
• iPhone (6 Plus, 6, 5S, 5C, 5 & 4S)
• iPad (mini with Retina display, mini, air, 4th & 3rd gen)
• iPod touch (5th gen)
ANDROID
• Google Nexus 5, Nexus 4
• Google Nexus 7 (2013), Nexus 10
• HTC One, One Max
• Motorola Droid RAZR, Ultra, Maxx, Mini
• Motorola Moto G, X
• Samsung Galaxy S3 or newer
• Samsung Galaxy Tab 4, Pro, S or newer, Galaxy Note 3, Galaxy Note 8, 10.1, Pro 12.2, or newer, Galaxy Mega
• Sony Xperia SP, Z, ZR, ZL, Z1, Z Ultra HSPA+
• Sony Xperia Tablet Z
Q: What if I don’t own a smartphone or tablet?
A: The product can still be used manually, however, for full app functions and features, a device can be used.
Q: Can more than one device be used with the app?
A: Yes, the app can be installed on multiple devices; however, only one device can control the product at one time.
Q: How far can I move away from the mobile before the device stops controlling it?
A: Depending on your surroundings, you should be able to send and receive signals up to 150 feet away.
Q: Can I add music from my phone/tablet to the mobile?
A: No, the app does not currently allow your personal music to be played by the mobile.
Q: My app froze – now what?
A: Android users should force stop the app (in settings) and re-launch it. iOS users will need to double-tap the home button and swipe across until the app is shown, and swipe the app up the screen to close.
Q: How often do I have to pair the app to my device(s)?
A: You should only need to pair the app once, unless you delete the app or there is an update to the app that requires it.
Q: Why isn’t my Smart Sensor working?
A: In order for the Smart Sensor to recognize that your child is making noise, the mobile function and mobile sound must be turned off.
Q: How sensitive is the Smart Sensor?
A: The Smart Sensor can be adjusted as needed, but it will not send notifications if your child is making intermittent or occasional noises. The app will only alert you when the child is making sustained noise for several seconds.
Function of Mobile:
Q: What cribs will this fit on?
A: This product may not attach to all crib designs.
Q: My mobile won’t turn on when I try using the app. What’s happening?
A: If the mobile hasn’t been used in 25 or more hours, please reset the mobile by turning it on and off again. To save battery life, there is a sleep mode after 25 hours.
Q: My mobile is clicking or not spinning. What could be wrong?
A: It’s possible that the screws that assemble the mobile arm to the base of the mobile are not tight. Please be sure that the mobile arm is fully snapped into the mobile adaptor, and tighten all four screws that fasten the mobile assembly to the mobile base. Also tighten the two screws that attach the mobile adaptor to the mobile base.
Q: Why can’t my baby hear me?
A: This product is not a two-way radio, and does not broadcast your voice or sounds back to the baby.
Q: How long does the nightlight stay on?
A: The nightlight stays illuminated for approximately one minute.
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