Mattel Barbie (Shanghai) Trading Co., Ltd. - Fisher Price Smart Sweet Sleep Mobile Application
End User License Agreement
This End User License Agreement (“EULA”) is a legal agreement between you (“You”) and Mattel Barbie (Shanghai) Trading Co., Ltd.'s Fisher Price Smart Sweet Sleep brand (“Company”).
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 MATTEL BARBIE (SHANGHAI) TRADING CO., LTD. PRIVACY STATEMENT FOR FISHER PRICE SMART SWEET SLEEP PRODUCTS AND SERVICES. IN THE EVENT OF A CONFLICT BETWEEN THIS EULA AND ANY THE TERMS OF USE OF ANY FISHER-PRICE WEBSITE, THE TERMS OF THIS EULA WILL BE CONTROLLING. 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.
FOR PURPOSES OF THE TERMS, “FISHER-PRICE,” “THE COMPANY,” "US", "WE" OR "OUR" MEANS AND INCLUDES THE COMPANY AND ITS INVESTORS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES AND ASSIGNS. "YOU" MEANS EACH PERSON WHO ACCESSES OR USES THE APPLICATION (INCLUDING, BUT NOT LIMITED TO ANY PARENT, GUARDIAN, OR CAREGIVER), WHETHER OR NOT SUCH PERSON PERSONALLY INSTALLED THE COMPANION APP OR PERSONALLY UTILIZES THE APPLICATION'S SERVICES. FURTHER, "YOUR CHILDREN" OR "YOUR CHILD" REFERS TO YOUR CHILD, YOUR CHILDREN, OR A CHILD OR CHILDREN UNDER YOUR GUARDIANSHIP OR SUPERVISION.
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 Application-compatible devices that You own or control. Your purchase, installation and use of the Application is subject to the terms of service of the Company website, privacy statements and other applicable polices made available by the Company. Please review these documents carefully. 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.
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. You are solely responsible for all use of the Application in connection with Your account.
2.2 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, or by attempting to access any information in connection with the Application by hacking, unauthorized access or any other means.
3. Dealings with Third Parties. Any interactions, correspondence, transactions, and other dealings that You have with any third parties found on or through the Application are solely between You and the third party (including issues related to payments, delivery of goods, warranties (including product warranties), privacy and data security, and any other matter). Company disclaims all liability in connection therewith.
4. Application Upgrades. The terms 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 (“Company Licensed Elements”) 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.
5.1 User-Generated Content.
5.1.1 General. Mattel, Inc. may now or in the future offer You the opportunity to post, upload, display, publish, distribute, transmit, broadcast, or otherwise make available on or submit through the Application (collectively, “submit”) messages, text, photos, data, questions, suggestions, personally identifiable information, or other information or materials and the ideas contained therein (collectively, but excluding Mattel, Inc. Licensed Elements included therein, “User-Generated Content”). Mattel, Inc. may do this through message boards, social communities, email, and other communications functionality. Subject to the rights and license You grant in this EULA, You retain whatever legally cognizable right, title, and interest that You have in Your User-Generated Content.
5.1.2 Non-Confidentiality of Your User-Generated Content. Except as otherwise described in Our Privacy Statement or any separate guidelines, rules, or terms of service or sale setting forth additional or different terms and/or conditions that will apply to Your use of the Application or to a service or product offered via the Application (in each such instance, and collectively, “Additional Terms”), You agree that (a) Your User-Generated Content will be treated as non-confidential and non-proprietary and will not be returned, and (b) Mattel, Inc. does not assume any obligation of any kind to You or any third party with respect to Your User-Generated Content. Upon Mattel, Inc.'s request, You will furnish us with any documentation necessary to substantiate these rights and verify Your compliance with this User Agreement or any Additional Terms. You acknowledge that Internet and mobile services may be subject to breaches of security and that You are aware that submissions of User-Generated Content may not be secure, and You will consider this before submitting any User-Generated Content.
5.1.3 License to Mattel, Inc. of Your User-Generated Content. Except as otherwise described in any Additional Terms (such as a contest’s official rules), which will govern the submission of Your User-Generated Content, You hereby grant to Mattel, Inc., and You agree to grant to Mattel, Inc., the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise exploit in any manner whatsoever, all or any portion of Your User-Generated Content (and derivative works thereof), for any purpose whatsoever in all formats, on or through any media, software, formula, or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same, without any obligation or remuneration to You. Without limitation, the granted rights include the right to: (a) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, publish in searchable format, and remove such User-Generated Content and combine same with other materials, and (b) use any ideas, concepts, know-how, or techniques contained in any User-Generated Content for any purposes whatsoever, including developing, manufacturing, and marketing products and/or services. To further effect the rights and license that You grant to Mattel, Inc. to Your User-Generated Content, You also hereby grant to Mattel, Inc., and agree to grant to Mattel, Inc., the unconditional, perpetual, irrevocable right to use and exploit your name, persona, and likeness in connection with any User-Generated Content, without any obligation or remuneration to You. Except as prohibited by law, You hereby waive, and You agree to waive, any moral rights (including attribution and integrity) that You may have in any User-Generated Content, even if it is altered or changed in a manner not agreeable to You. To the extent not waivable, You irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights to Mattel, Inc. You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section 5.1.3).
5.1.4 Mattel, Inc.'s Exclusive Right to Manage All User-Generated Content . Mattel, Inc. may, but will not have any obligation to, review, monitor, display, post, store, maintain, accept, or otherwise make use of, any of Your User-Generated Content, and Mattel, Inc. may, in its sole discretion, delete, move, re-format, remove or refuse to post or otherwise make use of Your or any User-Generated Content without notice or any liability to You or any third party. Mattel, Inc. reserves the right to treat User-Generated Content on the Application as content stored at the direction of users for which Mattel, Inc. will not exercise control except to block or remove content that comes to Mattel Inc.'s attention and is deemed by Mattel, Inc., in its sole discretion, to be offensive, obscene, lewd, lascivious, filthy, violent, harassing, threatening, abusive, illegal or otherwise objectionable to Mattel, Inc., or to enforce the rights of third parties or the content restrictions set forth below in the Rules (defined in Section 5.1.7 below) when notice of their violation comes to Mattel, Inc.'s attention. Except as required by law, Mattel, Inc. does not assume any obligation to You to maintain, archive, allow access to or use of User-Generated Content on or through the Application for any period of time.
5.1.5 Representations and Warranties Related to Your User-Generated Content . Each time You submit any User-Generated Content, You represent and warrant that You are at least the age of majority in the country in which You reside and are the parent or legal guardian, or have all proper consents from the parent or legal guardian, of any minor who is depicted in or contributed to any User-Generated Content You submit, and that, as to that User-Generated Content, (a) You are the sole author and owner of the intellectual property and other rights to the User Generated Content, or You have a lawful right to submit the User-Generated Content and grant Mattel, Inc. the rights to it that You are granting by this User Agreement and any Additional Terms, all without any Mattel, Inc. obligation to obtain consent of any third party and without creating any obligation or liability of Mattel, Inc.; (b) the User-Generated Content is accurate; (c) the User-Generated Content does not and, as to Mattel, Inc.'s permitted uses and exploitation set forth in this EULA, will not infringe any intellectual property or other right of any third party; and (d) the User-Generated Content will not violate this EULA or any Additional Terms, or cause injury or harm to any person.
5.1.6 Enforcement. Mattel, Inc. has no obligation to monitor or enforce your intellectual property rights to Your User-Generated Content, but You grant us the right to protect and enforce Our rights to Your User-Generated Content, including by bringing and controlling actions in Your name and on Your behalf (at Mattel, Inc.'s cost and expense, to which You hereby consent and irrevocably appoint Mattel, Inc. as Your attorney-in-fact, with the power of substitution and delegation, which appointment is coupled with an interest).
5.1.7 Community Usage Rules. As a user of the Application, these Community Usage Rules ("Rules") are here to help You understand the conduct that is expected of members of the Application’s mobile communities ("Communities").
Nature of Rules . Your participation in the Communities is subject to all the terms in this EULA, including these Rules:
• Your User-Generated Content. Do not use any User-Generated Content that belongs to other people and pass it off as Your own; this includes any content that You might have found elsewhere on the Internet. For example, Your User-Generated Content should not contain any visible logos, phrases, or trademarks that belong to third parties. If anyone contributes to Your User-Generated Content or has any rights to Your User-Generated Content, or if anyone appears in the User-Generated Content, then You must also have their permission to submit such User-Generated Content to Mattel, Inc.. (For example, if someone has taken a picture of You and a friend, and You submit that photo to Mattel, Inc. as Your User-Generated Content, then You must obtain Your friend’s and the photographer’s permission to do so.)
• No Photos, Videos, or Images of Anyone Other Than You and Your Friends and Family . If You choose to submit photos to or through the Application, link to embedded videos, or include other images of real people, then make sure they are of You or of You and someone you know – and only if You have their permission to submit them. Additionally, if the photo, video, or image includes a minor, by submitting it, You affirm that You are the parent or guardian of any child, or have permission from the child’s parents or guardians, to do so.
• Act Appropriately. Be respectful of others’ opinions and comments so we can continue to build Communities for everyone to enjoy. If you think Your User-Generated Content might offend someone or be embarrassing to someone, then chances are it probably will and it doesn’t belong in the Application or posted to or through the Application. Cursing, harassing, stalking, insulting comments, personal attacks, gossip, and similar actions are prohibited. Your User-Generated Content must not threaten, abuse, or harm others, and it must not include any negative comments that are connected to race, national origin, gender, sexual orientation, or physical handicap. Your User-Generated Content must not be defamatory, slanderous, indecent, obscene, pornographic, or sexually explicit.
• Do Not Use for Commercial or Political Purposes. Your User-Generated Content must not advertise or promote a product or service or other commercial activity, or a politician, public servant, or law. If You submit User-Generated Content that Mattel, Inc. reasonably believes violates this paragraph, then We may take any legal action that We deem appropriate, in Our sole discretion.
• Do Not Use for Inappropriate Purposes. Your User-Generated Content must not promote any infringing, illegal, or other similarly inappropriate activity. If You submit User-Generated Content that Mattel, Inc. reasonably believes violates this paragraph, then We may take any legal action that We deem appropriate, in Our sole discretion.
• Be Honest and Do Not Misrepresent Yourself or Your User-Generated Content . Do not impersonate any other person, user, or Mattel, Inc., and do not submit User-Generated Content that You believe may be false, fraudulent, deceptive, inaccurate, or misleading, or that misrepresents Your identity or affiliation with a person or company.
• Others Can See. We hope that You will use the Communities to exchange information and content and have discussions with other members. However, please remember that the Communities are a public forum and User-Generated Content that You submit within a Community will be accessible and viewable by other users. Do not submit personally identifiable information (e.g., first and last name together, password, phone number, address, credit card number, medical information, e-mail address, or other personally identifiable information or contact information) on Community spaces and take care when disclosing this type of information to others.
• Don't Share Other People's Personal Information. Your User-Generated Content must not reveal another person’s address, phone number, e-mail address, social security number, credit card number, medical information, financial information, or any other information that may be used to track, contact, or impersonate that individual, unless, and in the form and by the method, specifically requested by Mattel, Inc..
• Don't Damage the Application or Anyone's Computers or Other Internet Devices . Your User-Generated Content must not contain or permit viruses, trojan horses, spyware, or any other technologies or malicious code that could affect the operation of the Application or any computer or other Internet or mobile Device.
Mattel, Inc. reserves the right to request at any time proof of the permissions referred to above in a form acceptable to Us. Failure to provide such proof may lead to, among other things, the User-Generated Content in question being removed from the Application and/or Your Account being terminated.
5.1.8 Your Interactions With Other Users; Disputes. You are solely responsible for Your interaction with other users of the Application, whether online or offline. Mattel, Inc. is not responsible or liable for the conduct or content of any user. Mattel, Inc. reserves the right, but has no obligation, to monitor or become involved in disputes between You and other users. Exercise common sense and your best judgment in your interactions with others (e.g., when you submit any personal or other information) and in all of your other online activities.
6. Representations and Warranties By End User: You represent and warrant that You (a) are the age of majority in Your country of residence (which is typically 18 years of age in most US states and non-US countries) and have the legal capacity to enter into this EULA, (b) are the parent or guardian of any child, or have permission from the child’s parents or guardians to include any information about the child in the Application, , (c) that You will use the Application only for lawful purposes and in accordance with this EULA, and (d) 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, uninstall it and destroy all copies of the Application. Sections, 5, 5.1, 7-11, 13 and 14 shall survive termination of this EULA.
8. Disclaimer of Warranties: YOUR USE OF THE APPLICATION AND ANY ASSOCIATED PRODUCTS 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, 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 Application;
• 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 affect 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.
10. 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. Wireless Features
12.1 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.
12.2 You agree that as to the Wireless Features for which You are registered, 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.
13. Dispute Resolution:
13.1 First -- Try to Resolve Disputes. If any controversy, allegation, or claim arises out of or relates to the Application or this EULA or to any of Company's actual or alleged intellectual property rights (collectively, “Dispute”), then You and Company agree to send a written notice to the other providing a reasonable description of the 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 13.1. Our notice to You will be sent to the email address You used to set up Your Account. Your notice to us must be sent to: Mattel Barbie (Shanghai) Trading Co., Ltd., 47F 2 Grand Gateway, 3 Hongqiao Road, Shanghai, 200030. 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, though nothing will require either You or Company to resolve the Dispute on terms with respect to which You and Company, in each party’s sole discretion, are not comfortable.
13.2 Arbitration. If we cannot resolve a Dispute as set forth in Section 13.1 above within 60 days of receipt of notice, then either You or Company may submit the Dispute to the Shanghai International Economic and Trade Arbitration Commission (“SHIAC”) for arbitration in Shanghai in accordance with the arbitration rules of SHIAC then in effect by a sole arbitrator appointed in accordance with the said rules. The arbitral award shall be final and binding upon the Parties. The cost of arbitration shall be allocated as determined by the arbitrator.
13.3 Injunctive Relief. The foregoing provisions of this Section 13 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. Miscellaneous Provisions:
14.1 You are responsible for obtaining and maintaining Your device and other equipment and software, and all Internet service providers, 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.
14.2 This EULA shall be governed by and construed in accordance with, and any Dispute will be resolved in accordance with, the laws of the People's Republic of China.
14.3 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.
14.4 Company reserves the right to discontinue any services provided to You or made available to You through the use of the Application.
14.5 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.
14.6 This EULA is written in English and Chinese. In case of inconsistency between the two language versions, the Chinese version shall prevail unless otherwise stated.
15. Consumer Contact: If You have any questions regarding this EULA, write to:
Via phone: [400 6789 496]; or
Via mail: Mattel Barbie (Shanghai) Trading Co., Ltd.
47/F 2 Grand Gateway
3 Hongqiao Road
Shanghai, 200030
]]>Mattel Barbie (Shanghai) Trading Co., Ltd. - Fisher Price Smart Sweet Sleep Mobile Application
End User License Agreement
This End User License Agreement (“EULA”) is a legal agreement between you (“You”) and Mattel Barbie (Shanghai) Trading Co., Ltd.'s Fisher Price Smart Sweet Sleep brand (“Company”).
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 MATTEL BARBIE (SHANGHAI) TRADING CO., LTD. PRIVACY STATEMENT FOR FISHER PRICE SMART SWEET SLEEP PRODUCTS AND SERVICES. IN THE EVENT OF A CONFLICT BETWEEN THIS EULA AND ANY THE TERMS OF USE OF ANY FISHER-PRICE WEBSITE, THE TERMS OF THIS EULA WILL BE CONTROLLING. 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.
FOR PURPOSES OF THE TERMS, “FISHER-PRICE,” “THE COMPANY,” "US", "WE" OR "OUR" MEANS AND INCLUDES THE COMPANY AND ITS INVESTORS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES AND ASSIGNS. "YOU" MEANS EACH PERSON WHO ACCESSES OR USES THE APPLICATION (INCLUDING, BUT NOT LIMITED TO ANY PARENT, GUARDIAN, OR CAREGIVER), WHETHER OR NOT SUCH PERSON PERSONALLY INSTALLED THE COMPANION APP OR PERSONALLY UTILIZES THE APPLICATION'S SERVICES. FURTHER, "YOUR CHILDREN" OR "YOUR CHILD" REFERS TO YOUR CHILD, YOUR CHILDREN, OR A CHILD OR CHILDREN UNDER YOUR GUARDIANSHIP OR SUPERVISION.
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 Application-compatible devices that You own or control. Your purchase, installation and use of the Application is subject to the terms of service of the Company website, privacy statements and other applicable polices made available by the Company. Please review these documents carefully. 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.
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. You are solely responsible for all use of the Application in connection with Your account.
2.2 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, or by attempting to access any information in connection with the Application by hacking, unauthorized access or any other means.
3. Dealings with Third Parties. Any interactions, correspondence, transactions, and other dealings that You have with any third parties found on or through the Application are solely between You and the third party (including issues related to payments, delivery of goods, warranties (including product warranties), privacy and data security, and any other matter). Company disclaims all liability in connection therewith.
4. Application Upgrades. The terms 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 (“Company Licensed Elements”) 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.
5.1 User-Generated Content.
5.1.1 General. Mattel, Inc. may now or in the future offer You the opportunity to post, upload, display, publish, distribute, transmit, broadcast, or otherwise make available on or submit through the Application (collectively, “submit”) messages, text, photos, data, questions, suggestions, personally identifiable information, or other information or materials and the ideas contained therein (collectively, but excluding Mattel, Inc. Licensed Elements included therein, “User-Generated Content”). Mattel, Inc. may do this through message boards, social communities, email, and other communications functionality. Subject to the rights and license You grant in this EULA, You retain whatever legally cognizable right, title, and interest that You have in Your User-Generated Content.
5.1.2 Non-Confidentiality of Your User-Generated Content. Except as otherwise described in Our Privacy Statement or any separate guidelines, rules, or terms of service or sale setting forth additional or different terms and/or conditions that will apply to Your use of the Application or to a service or product offered via the Application (in each such instance, and collectively, “Additional Terms”), You agree that (a) Your User-Generated Content will be treated as non-confidential and non-proprietary and will not be returned, and (b) Mattel, Inc. does not assume any obligation of any kind to You or any third party with respect to Your User-Generated Content. Upon Mattel, Inc.'s request, You will furnish us with any documentation necessary to substantiate these rights and verify Your compliance with this User Agreement or any Additional Terms. You acknowledge that Internet and mobile services may be subject to breaches of security and that You are aware that submissions of User-Generated Content may not be secure, and You will consider this before submitting any User-Generated Content.
5.1.3 License to Mattel, Inc. of Your User-Generated Content. Except as otherwise described in any Additional Terms (such as a contest’s official rules), which will govern the submission of Your User-Generated Content, You hereby grant to Mattel, Inc., and You agree to grant to Mattel, Inc., the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise exploit in any manner whatsoever, all or any portion of Your User-Generated Content (and derivative works thereof), for any purpose whatsoever in all formats, on or through any media, software, formula, or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same, without any obligation or remuneration to You. Without limitation, the granted rights include the right to: (a) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, publish in searchable format, and remove such User-Generated Content and combine same with other materials, and (b) use any ideas, concepts, know-how, or techniques contained in any User-Generated Content for any purposes whatsoever, including developing, manufacturing, and marketing products and/or services. To further effect the rights and license that You grant to Mattel, Inc. to Your User-Generated Content, You also hereby grant to Mattel, Inc., and agree to grant to Mattel, Inc., the unconditional, perpetual, irrevocable right to use and exploit your name, persona, and likeness in connection with any User-Generated Content, without any obligation or remuneration to You. Except as prohibited by law, You hereby waive, and You agree to waive, any moral rights (including attribution and integrity) that You may have in any User-Generated Content, even if it is altered or changed in a manner not agreeable to You. To the extent not waivable, You irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights to Mattel, Inc. You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section 5.1.3).
5.1.4 Mattel, Inc.'s Exclusive Right to Manage All User-Generated Content . Mattel, Inc. may, but will not have any obligation to, review, monitor, display, post, store, maintain, accept, or otherwise make use of, any of Your User-Generated Content, and Mattel, Inc. may, in its sole discretion, delete, move, re-format, remove or refuse to post or otherwise make use of Your or any User-Generated Content without notice or any liability to You or any third party. Mattel, Inc. reserves the right to treat User-Generated Content on the Application as content stored at the direction of users for which Mattel, Inc. will not exercise control except to block or remove content that comes to Mattel Inc.'s attention and is deemed by Mattel, Inc., in its sole discretion, to be offensive, obscene, lewd, lascivious, filthy, violent, harassing, threatening, abusive, illegal or otherwise objectionable to Mattel, Inc., or to enforce the rights of third parties or the content restrictions set forth below in the Rules (defined in Section 5.1.7 below) when notice of their violation comes to Mattel, Inc.'s attention. Except as required by law, Mattel, Inc. does not assume any obligation to You to maintain, archive, allow access to or use of User-Generated Content on or through the Application for any period of time.
5.1.5 Representations and Warranties Related to Your User-Generated Content . Each time You submit any User-Generated Content, You represent and warrant that You are at least the age of majority in the country in which You reside and are the parent or legal guardian, or have all proper consents from the parent or legal guardian, of any minor who is depicted in or contributed to any User-Generated Content You submit, and that, as to that User-Generated Content, (a) You are the sole author and owner of the intellectual property and other rights to the User Generated Content, or You have a lawful right to submit the User-Generated Content and grant Mattel, Inc. the rights to it that You are granting by this User Agreement and any Additional Terms, all without any Mattel, Inc. obligation to obtain consent of any third party and without creating any obligation or liability of Mattel, Inc.; (b) the User-Generated Content is accurate; (c) the User-Generated Content does not and, as to Mattel, Inc.'s permitted uses and exploitation set forth in this EULA, will not infringe any intellectual property or other right of any third party; and (d) the User-Generated Content will not violate this EULA or any Additional Terms, or cause injury or harm to any person.
5.1.6 Enforcement. Mattel, Inc. has no obligation to monitor or enforce your intellectual property rights to Your User-Generated Content, but You grant us the right to protect and enforce Our rights to Your User-Generated Content, including by bringing and controlling actions in Your name and on Your behalf (at Mattel, Inc.'s cost and expense, to which You hereby consent and irrevocably appoint Mattel, Inc. as Your attorney-in-fact, with the power of substitution and delegation, which appointment is coupled with an interest).
5.1.7 Community Usage Rules. As a user of the Application, these Community Usage Rules ("Rules") are here to help You understand the conduct that is expected of members of the Application’s mobile communities ("Communities").
Nature of Rules . Your participation in the Communities is subject to all the terms in this EULA, including these Rules:
• Your User-Generated Content. Do not use any User-Generated Content that belongs to other people and pass it off as Your own; this includes any content that You might have found elsewhere on the Internet. For example, Your User-Generated Content should not contain any visible logos, phrases, or trademarks that belong to third parties. If anyone contributes to Your User-Generated Content or has any rights to Your User-Generated Content, or if anyone appears in the User-Generated Content, then You must also have their permission to submit such User-Generated Content to Mattel, Inc.. (For example, if someone has taken a picture of You and a friend, and You submit that photo to Mattel, Inc. as Your User-Generated Content, then You must obtain Your friend’s and the photographer’s permission to do so.)
• No Photos, Videos, or Images of Anyone Other Than You and Your Friends and Family . If You choose to submit photos to or through the Application, link to embedded videos, or include other images of real people, then make sure they are of You or of You and someone you know – and only if You have their permission to submit them. Additionally, if the photo, video, or image includes a minor, by submitting it, You affirm that You are the parent or guardian of any child, or have permission from the child’s parents or guardians, to do so.
• Act Appropriately. Be respectful of others’ opinions and comments so we can continue to build Communities for everyone to enjoy. If you think Your User-Generated Content might offend someone or be embarrassing to someone, then chances are it probably will and it doesn’t belong in the Application or posted to or through the Application. Cursing, harassing, stalking, insulting comments, personal attacks, gossip, and similar actions are prohibited. Your User-Generated Content must not threaten, abuse, or harm others, and it must not include any negative comments that are connected to race, national origin, gender, sexual orientation, or physical handicap. Your User-Generated Content must not be defamatory, slanderous, indecent, obscene, pornographic, or sexually explicit.
• Do Not Use for Commercial or Political Purposes. Your User-Generated Content must not advertise or promote a product or service or other commercial activity, or a politician, public servant, or law. If You submit User-Generated Content that Mattel, Inc. reasonably believes violates this paragraph, then We may take any legal action that We deem appropriate, in Our sole discretion.
• Do Not Use for Inappropriate Purposes. Your User-Generated Content must not promote any infringing, illegal, or other similarly inappropriate activity. If You submit User-Generated Content that Mattel, Inc. reasonably believes violates this paragraph, then We may take any legal action that We deem appropriate, in Our sole discretion.
• Be Honest and Do Not Misrepresent Yourself or Your User-Generated Content . Do not impersonate any other person, user, or Mattel, Inc., and do not submit User-Generated Content that You believe may be false, fraudulent, deceptive, inaccurate, or misleading, or that misrepresents Your identity or affiliation with a person or company.
• Others Can See. We hope that You will use the Communities to exchange information and content and have discussions with other members. However, please remember that the Communities are a public forum and User-Generated Content that You submit within a Community will be accessible and viewable by other users. Do not submit personally identifiable information (e.g., first and last name together, password, phone number, address, credit card number, medical information, e-mail address, or other personally identifiable information or contact information) on Community spaces and take care when disclosing this type of information to others.
• Don't Share Other People's Personal Information. Your User-Generated Content must not reveal another person’s address, phone number, e-mail address, social security number, credit card number, medical information, financial information, or any other information that may be used to track, contact, or impersonate that individual, unless, and in the form and by the method, specifically requested by Mattel, Inc..
• Don't Damage the Application or Anyone's Computers or Other Internet Devices . Your User-Generated Content must not contain or permit viruses, trojan horses, spyware, or any other technologies or malicious code that could affect the operation of the Application or any computer or other Internet or mobile Device.
Mattel, Inc. reserves the right to request at any time proof of the permissions referred to above in a form acceptable to Us. Failure to provide such proof may lead to, among other things, the User-Generated Content in question being removed from the Application and/or Your Account being terminated.
5.1.8 Your Interactions With Other Users; Disputes. You are solely responsible for Your interaction with other users of the Application, whether online or offline. Mattel, Inc. is not responsible or liable for the conduct or content of any user. Mattel, Inc. reserves the right, but has no obligation, to monitor or become involved in disputes between You and other users. Exercise common sense and your best judgment in your interactions with others (e.g., when you submit any personal or other information) and in all of your other online activities.
6. Representations and Warranties By End User: You represent and warrant that You (a) are the age of majority in Your country of residence (which is typically 18 years of age in most US states and non-US countries) and have the legal capacity to enter into this EULA, (b) are the parent or guardian of any child, or have permission from the child’s parents or guardians to include any information about the child in the Application, , (c) that You will use the Application only for lawful purposes and in accordance with this EULA, and (d) 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, uninstall it and destroy all copies of the Application. Sections, 5, 5.1, 7-11, 13 and 14 shall survive termination of this EULA.
8. Disclaimer of Warranties: YOUR USE OF THE APPLICATION AND ANY ASSOCIATED PRODUCTS 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, 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 Application;
• 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 affect 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.
10. 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. Wireless Features
12.1 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.
12.2 You agree that as to the Wireless Features for which You are registered, 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.
13. Dispute Resolution:
13.1 First -- Try to Resolve Disputes. If any controversy, allegation, or claim arises out of or relates to the Application or this EULA or to any of Company's actual or alleged intellectual property rights (collectively, “Dispute”), then You and Company agree to send a written notice to the other providing a reasonable description of the 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 13.1. Our notice to You will be sent to the email address You used to set up Your Account. Your notice to us must be sent to: Mattel Barbie (Shanghai) Trading Co., Ltd., 47F 2 Grand Gateway, 3 Hongqiao Road, Shanghai, 200030. 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, though nothing will require either You or Company to resolve the Dispute on terms with respect to which You and Company, in each party’s sole discretion, are not comfortable.
13.2 Arbitration. If we cannot resolve a Dispute as set forth in Section 13.1 above within 60 days of receipt of notice, then either You or Company may submit the Dispute to the Shanghai International Economic and Trade Arbitration Commission (“SHIAC”) for arbitration in Shanghai in accordance with the arbitration rules of SHIAC then in effect by a sole arbitrator appointed in accordance with the said rules. The arbitral award shall be final and binding upon the Parties. The cost of arbitration shall be allocated as determined by the arbitrator.
13.3 Injunctive Relief. The foregoing provisions of this Section 13 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. Miscellaneous Provisions:
14.1 You are responsible for obtaining and maintaining Your device and other equipment and software, and all Internet service providers, 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.
14.2 This EULA shall be governed by and construed in accordance with, and any Dispute will be resolved in accordance with, the laws of the People's Republic of China.
14.3 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.
14.4 Company reserves the right to discontinue any services provided to You or made available to You through the use of the Application.
14.5 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.
14.6 This EULA is written in English and Chinese. In case of inconsistency between the two language versions, the Chinese version shall prevail unless otherwise stated.
15. Consumer Contact: If You have any questions regarding this EULA, write to:
Via phone: [400 6789 496]; or
Via mail: Mattel Barbie (Shanghai) Trading Co., Ltd.
47/F 2 Grand Gateway
3 Hongqiao Road
Shanghai, 200030
]]>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.
Mattel Barbie (Shanghai) Trading Co., Ltd. - Fisher Price Smart Sweet Sleep Mobile Application
End User License Agreement
This End User License Agreement (“EULA”) is a legal agreement between you (“You”) and Mattel Barbie (Shanghai) Trading Co., Ltd.'s Fisher Price Smart Sweet Sleep brand (“Company”).
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 MATTEL BARBIE (SHANGHAI) TRADING CO., LTD. PRIVACY STATEMENT FOR FISHER PRICE SMART SWEET SLEEP PRODUCTS AND SERVICES. IN THE EVENT OF A CONFLICT BETWEEN THIS EULA AND ANY THE TERMS OF USE OF ANY FISHER-PRICE WEBSITE, THE TERMS OF THIS EULA WILL BE CONTROLLING. 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.
FOR PURPOSES OF THE TERMS, “FISHER-PRICE,” “THE COMPANY,” "US", "WE" OR "OUR" MEANS AND INCLUDES THE COMPANY AND ITS INVESTORS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES AND ASSIGNS. "YOU" MEANS EACH PERSON WHO ACCESSES OR USES THE APPLICATION (INCLUDING, BUT NOT LIMITED TO ANY PARENT, GUARDIAN, OR CAREGIVER), WHETHER OR NOT SUCH PERSON PERSONALLY INSTALLED THE COMPANION APP OR PERSONALLY UTILIZES THE APPLICATION'S SERVICES. FURTHER, "YOUR CHILDREN" OR "YOUR CHILD" REFERS TO YOUR CHILD, YOUR CHILDREN, OR A CHILD OR CHILDREN UNDER YOUR GUARDIANSHIP OR SUPERVISION.
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 Application-compatible devices that You own or control. Your purchase, installation and use of the Application is subject to the terms of service of the Company website, privacy statements and other applicable polices made available by the Company. Please review these documents carefully. 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.
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. You are solely responsible for all use of the Application in connection with Your account.
2.2 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, or by attempting to access any information in connection with the Application by hacking, unauthorized access or any other means.
3. Dealings with Third Parties. Any interactions, correspondence, transactions, and other dealings that You have with any third parties found on or through the Application are solely between You and the third party (including issues related to payments, delivery of goods, warranties (including product warranties), privacy and data security, and any other matter). Company disclaims all liability in connection therewith.
4. Application Upgrades. The terms 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 (“Company Licensed Elements”) 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.
5.1 User-Generated Content.
5.1.1 General. Mattel, Inc. may now or in the future offer You the opportunity to post, upload, display, publish, distribute, transmit, broadcast, or otherwise make available on or submit through the Application (collectively, “submit”) messages, text, photos, data, questions, suggestions, personally identifiable information, or other information or materials and the ideas contained therein (collectively, but excluding Mattel, Inc. Licensed Elements included therein, “User-Generated Content”). Mattel, Inc. may do this through message boards, social communities, email, and other communications functionality. Subject to the rights and license You grant in this EULA, You retain whatever legally cognizable right, title, and interest that You have in Your User-Generated Content.
5.1.2 Non-Confidentiality of Your User-Generated Content. Except as otherwise described in Our Privacy Statement or any separate guidelines, rules, or terms of service or sale setting forth additional or different terms and/or conditions that will apply to Your use of the Application or to a service or product offered via the Application (in each such instance, and collectively, “Additional Terms”), You agree that (a) Your User-Generated Content will be treated as non-confidential and non-proprietary and will not be returned, and (b) Mattel, Inc. does not assume any obligation of any kind to You or any third party with respect to Your User-Generated Content. Upon Mattel, Inc.'s request, You will furnish us with any documentation necessary to substantiate these rights and verify Your compliance with this User Agreement or any Additional Terms. You acknowledge that Internet and mobile services may be subject to breaches of security and that You are aware that submissions of User-Generated Content may not be secure, and You will consider this before submitting any User-Generated Content.
5.1.3 License to Mattel, Inc. of Your User-Generated Content. Except as otherwise described in any Additional Terms (such as a contest’s official rules), which will govern the submission of Your User-Generated Content, You hereby grant to Mattel, Inc., and You agree to grant to Mattel, Inc., the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise exploit in any manner whatsoever, all or any portion of Your User-Generated Content (and derivative works thereof), for any purpose whatsoever in all formats, on or through any media, software, formula, or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same, without any obligation or remuneration to You. Without limitation, the granted rights include the right to: (a) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, publish in searchable format, and remove such User-Generated Content and combine same with other materials, and (b) use any ideas, concepts, know-how, or techniques contained in any User-Generated Content for any purposes whatsoever, including developing, manufacturing, and marketing products and/or services. To further effect the rights and license that You grant to Mattel, Inc. to Your User-Generated Content, You also hereby grant to Mattel, Inc., and agree to grant to Mattel, Inc., the unconditional, perpetual, irrevocable right to use and exploit your name, persona, and likeness in connection with any User-Generated Content, without any obligation or remuneration to You. Except as prohibited by law, You hereby waive, and You agree to waive, any moral rights (including attribution and integrity) that You may have in any User-Generated Content, even if it is altered or changed in a manner not agreeable to You. To the extent not waivable, You irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights to Mattel, Inc. You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section 5.1.3).
5.1.4 Mattel, Inc.'s Exclusive Right to Manage All User-Generated Content . Mattel, Inc. may, but will not have any obligation to, review, monitor, display, post, store, maintain, accept, or otherwise make use of, any of Your User-Generated Content, and Mattel, Inc. may, in its sole discretion, delete, move, re-format, remove or refuse to post or otherwise make use of Your or any User-Generated Content without notice or any liability to You or any third party. Mattel, Inc. reserves the right to treat User-Generated Content on the Application as content stored at the direction of users for which Mattel, Inc. will not exercise control except to block or remove content that comes to Mattel Inc.'s attention and is deemed by Mattel, Inc., in its sole discretion, to be offensive, obscene, lewd, lascivious, filthy, violent, harassing, threatening, abusive, illegal or otherwise objectionable to Mattel, Inc., or to enforce the rights of third parties or the content restrictions set forth below in the Rules (defined in Section 5.1.7 below) when notice of their violation comes to Mattel, Inc.'s attention. Except as required by law, Mattel, Inc. does not assume any obligation to You to maintain, archive, allow access to or use of User-Generated Content on or through the Application for any period of time.
5.1.5 Representations and Warranties Related to Your User-Generated Content . Each time You submit any User-Generated Content, You represent and warrant that You are at least the age of majority in the country in which You reside and are the parent or legal guardian, or have all proper consents from the parent or legal guardian, of any minor who is depicted in or contributed to any User-Generated Content You submit, and that, as to that User-Generated Content, (a) You are the sole author and owner of the intellectual property and other rights to the User Generated Content, or You have a lawful right to submit the User-Generated Content and grant Mattel, Inc. the rights to it that You are granting by this User Agreement and any Additional Terms, all without any Mattel, Inc. obligation to obtain consent of any third party and without creating any obligation or liability of Mattel, Inc.; (b) the User-Generated Content is accurate; (c) the User-Generated Content does not and, as to Mattel, Inc.'s permitted uses and exploitation set forth in this EULA, will not infringe any intellectual property or other right of any third party; and (d) the User-Generated Content will not violate this EULA or any Additional Terms, or cause injury or harm to any person.
5.1.6 Enforcement. Mattel, Inc. has no obligation to monitor or enforce your intellectual property rights to Your User-Generated Content, but You grant us the right to protect and enforce Our rights to Your User-Generated Content, including by bringing and controlling actions in Your name and on Your behalf (at Mattel, Inc.'s cost and expense, to which You hereby consent and irrevocably appoint Mattel, Inc. as Your attorney-in-fact, with the power of substitution and delegation, which appointment is coupled with an interest).
5.1.7 Community Usage Rules. As a user of the Application, these Community Usage Rules ("Rules") are here to help You understand the conduct that is expected of members of the Application’s mobile communities ("Communities").
Nature of Rules . Your participation in the Communities is subject to all the terms in this EULA, including these Rules:
• Your User-Generated Content. Do not use any User-Generated Content that belongs to other people and pass it off as Your own; this includes any content that You might have found elsewhere on the Internet. For example, Your User-Generated Content should not contain any visible logos, phrases, or trademarks that belong to third parties. If anyone contributes to Your User-Generated Content or has any rights to Your User-Generated Content, or if anyone appears in the User-Generated Content, then You must also have their permission to submit such User-Generated Content to Mattel, Inc.. (For example, if someone has taken a picture of You and a friend, and You submit that photo to Mattel, Inc. as Your User-Generated Content, then You must obtain Your friend’s and the photographer’s permission to do so.)
• No Photos, Videos, or Images of Anyone Other Than You and Your Friends and Family . If You choose to submit photos to or through the Application, link to embedded videos, or include other images of real people, then make sure they are of You or of You and someone you know – and only if You have their permission to submit them. Additionally, if the photo, video, or image includes a minor, by submitting it, You affirm that You are the parent or guardian of any child, or have permission from the child’s parents or guardians, to do so.
• Act Appropriately. Be respectful of others’ opinions and comments so we can continue to build Communities for everyone to enjoy. If you think Your User-Generated Content might offend someone or be embarrassing to someone, then chances are it probably will and it doesn’t belong in the Application or posted to or through the Application. Cursing, harassing, stalking, insulting comments, personal attacks, gossip, and similar actions are prohibited. Your User-Generated Content must not threaten, abuse, or harm others, and it must not include any negative comments that are connected to race, national origin, gender, sexual orientation, or physical handicap. Your User-Generated Content must not be defamatory, slanderous, indecent, obscene, pornographic, or sexually explicit.
• Do Not Use for Commercial or Political Purposes. Your User-Generated Content must not advertise or promote a product or service or other commercial activity, or a politician, public servant, or law. If You submit User-Generated Content that Mattel, Inc. reasonably believes violates this paragraph, then We may take any legal action that We deem appropriate, in Our sole discretion.
• Do Not Use for Inappropriate Purposes. Your User-Generated Content must not promote any infringing, illegal, or other similarly inappropriate activity. If You submit User-Generated Content that Mattel, Inc. reasonably believes violates this paragraph, then We may take any legal action that We deem appropriate, in Our sole discretion.
• Be Honest and Do Not Misrepresent Yourself or Your User-Generated Content . Do not impersonate any other person, user, or Mattel, Inc., and do not submit User-Generated Content that You believe may be false, fraudulent, deceptive, inaccurate, or misleading, or that misrepresents Your identity or affiliation with a person or company.
• Others Can See. We hope that You will use the Communities to exchange information and content and have discussions with other members. However, please remember that the Communities are a public forum and User-Generated Content that You submit within a Community will be accessible and viewable by other users. Do not submit personally identifiable information (e.g., first and last name together, password, phone number, address, credit card number, medical information, e-mail address, or other personally identifiable information or contact information) on Community spaces and take care when disclosing this type of information to others.
• Don't Share Other People's Personal Information. Your User-Generated Content must not reveal another person’s address, phone number, e-mail address, social security number, credit card number, medical information, financial information, or any other information that may be used to track, contact, or impersonate that individual, unless, and in the form and by the method, specifically requested by Mattel, Inc..
• Don't Damage the Application or Anyone's Computers or Other Internet Devices . Your User-Generated Content must not contain or permit viruses, trojan horses, spyware, or any other technologies or malicious code that could affect the operation of the Application or any computer or other Internet or mobile Device.
Mattel, Inc. reserves the right to request at any time proof of the permissions referred to above in a form acceptable to Us. Failure to provide such proof may lead to, among other things, the User-Generated Content in question being removed from the Application and/or Your Account being terminated.
5.1.8 Your Interactions With Other Users; Disputes. You are solely responsible for Your interaction with other users of the Application, whether online or offline. Mattel, Inc. is not responsible or liable for the conduct or content of any user. Mattel, Inc. reserves the right, but has no obligation, to monitor or become involved in disputes between You and other users. Exercise common sense and your best judgment in your interactions with others (e.g., when you submit any personal or other information) and in all of your other online activities.
6. Representations and Warranties By End User: You represent and warrant that You (a) are the age of majority in Your country of residence (which is typically 18 years of age in most US states and non-US countries) and have the legal capacity to enter into this EULA, (b) are the parent or guardian of any child, or have permission from the child’s parents or guardians to include any information about the child in the Application, , (c) that You will use the Application only for lawful purposes and in accordance with this EULA, and (d) 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, uninstall it and destroy all copies of the Application. Sections, 5, 5.1, 7-11, 13 and 14 shall survive termination of this EULA.
8. Disclaimer of Warranties: YOUR USE OF THE APPLICATION AND ANY ASSOCIATED PRODUCTS 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, 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 Application;
• 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 affect 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.
10. 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. Wireless Features
12.1 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.
12.2 You agree that as to the Wireless Features for which You are registered, 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.
13. Dispute Resolution:
13.1 First -- Try to Resolve Disputes. If any controversy, allegation, or claim arises out of or relates to the Application or this EULA or to any of Company's actual or alleged intellectual property rights (collectively, “Dispute”), then You and Company agree to send a written notice to the other providing a reasonable description of the 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 13.1. Our notice to You will be sent to the email address You used to set up Your Account. Your notice to us must be sent to: Mattel Barbie (Shanghai) Trading Co., Ltd., 47F 2 Grand Gateway, 3 Hongqiao Road, Shanghai, 200030. 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, though nothing will require either You or Company to resolve the Dispute on terms with respect to which You and Company, in each party’s sole discretion, are not comfortable.
13.2 Arbitration. If we cannot resolve a Dispute as set forth in Section 13.1 above within 60 days of receipt of notice, then either You or Company may submit the Dispute to the Shanghai International Economic and Trade Arbitration Commission (“SHIAC”) for arbitration in Shanghai in accordance with the arbitration rules of SHIAC then in effect by a sole arbitrator appointed in accordance with the said rules. The arbitral award shall be final and binding upon the Parties. The cost of arbitration shall be allocated as determined by the arbitrator.
13.3 Injunctive Relief. The foregoing provisions of this Section 13 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. Miscellaneous Provisions:
14.1 You are responsible for obtaining and maintaining Your device and other equipment and software, and all Internet service providers, 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.
14.2 This EULA shall be governed by and construed in accordance with, and any Dispute will be resolved in accordance with, the laws of the People's Republic of China.
14.3 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.
14.4 Company reserves the right to discontinue any services provided to You or made available to You through the use of the Application.
14.5 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.
14.6 This EULA is written in English and Chinese. In case of inconsistency between the two language versions, the Chinese version shall prevail unless otherwise stated.
15. Consumer Contact: If You have any questions regarding this EULA, write to:
Via phone: [400 6789 496]; or
Via mail: Mattel Barbie (Shanghai) Trading Co., Ltd.
47/F 2 Grand Gateway
3 Hongqiao Road
Shanghai, 200030
]]>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.
Mattel Barbie (Shanghai) Trading Co., Ltd. - Fisher Price Smart Sweet Sleep Mobile Application
End User License Agreement
This End User License Agreement (“EULA”) is a legal agreement between you (“You”) and Mattel Barbie (Shanghai) Trading Co., Ltd.'s Fisher Price Smart Sweet Sleep brand (“Company”).
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 MATTEL BARBIE (SHANGHAI) TRADING CO., LTD. PRIVACY STATEMENT FOR FISHER PRICE SMART SWEET SLEEP PRODUCTS AND SERVICES. IN THE EVENT OF A CONFLICT BETWEEN THIS EULA AND ANY THE TERMS OF USE OF ANY FISHER-PRICE WEBSITE, THE TERMS OF THIS EULA WILL BE CONTROLLING. 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.
FOR PURPOSES OF THE TERMS, “FISHER-PRICE,” “THE COMPANY,” "US", "WE" OR "OUR" MEANS AND INCLUDES THE COMPANY AND ITS INVESTORS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES AND ASSIGNS. "YOU" MEANS EACH PERSON WHO ACCESSES OR USES THE APPLICATION (INCLUDING, BUT NOT LIMITED TO ANY PARENT, GUARDIAN, OR CAREGIVER), WHETHER OR NOT SUCH PERSON PERSONALLY INSTALLED THE COMPANION APP OR PERSONALLY UTILIZES THE APPLICATION'S SERVICES. FURTHER, "YOUR CHILDREN" OR "YOUR CHILD" REFERS TO YOUR CHILD, YOUR CHILDREN, OR A CHILD OR CHILDREN UNDER YOUR GUARDIANSHIP OR SUPERVISION.
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 Application-compatible devices that You own or control. Your purchase, installation and use of the Application is subject to the terms of service of the Company website, privacy statements and other applicable polices made available by the Company. Please review these documents carefully. 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.
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. You are solely responsible for all use of the Application in connection with Your account.
2.2 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, or by attempting to access any information in connection with the Application by hacking, unauthorized access or any other means.
3. Dealings with Third Parties. Any interactions, correspondence, transactions, and other dealings that You have with any third parties found on or through the Application are solely between You and the third party (including issues related to payments, delivery of goods, warranties (including product warranties), privacy and data security, and any other matter). Company disclaims all liability in connection therewith.
4. Application Upgrades. The terms 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 (“Company Licensed Elements”) 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.
5.1 User-Generated Content.
5.1.1 General. Mattel, Inc. may now or in the future offer You the opportunity to post, upload, display, publish, distribute, transmit, broadcast, or otherwise make available on or submit through the Application (collectively, “submit”) messages, text, photos, data, questions, suggestions, personally identifiable information, or other information or materials and the ideas contained therein (collectively, but excluding Mattel, Inc. Licensed Elements included therein, “User-Generated Content”). Mattel, Inc. may do this through message boards, social communities, email, and other communications functionality. Subject to the rights and license You grant in this EULA, You retain whatever legally cognizable right, title, and interest that You have in Your User-Generated Content.
5.1.2 Non-Confidentiality of Your User-Generated Content. Except as otherwise described in Our Privacy Statement or any separate guidelines, rules, or terms of service or sale setting forth additional or different terms and/or conditions that will apply to Your use of the Application or to a service or product offered via the Application (in each such instance, and collectively, “Additional Terms”), You agree that (a) Your User-Generated Content will be treated as non-confidential and non-proprietary and will not be returned, and (b) Mattel, Inc. does not assume any obligation of any kind to You or any third party with respect to Your User-Generated Content. Upon Mattel, Inc.'s request, You will furnish us with any documentation necessary to substantiate these rights and verify Your compliance with this User Agreement or any Additional Terms. You acknowledge that Internet and mobile services may be subject to breaches of security and that You are aware that submissions of User-Generated Content may not be secure, and You will consider this before submitting any User-Generated Content.
5.1.3 License to Mattel, Inc. of Your User-Generated Content. Except as otherwise described in any Additional Terms (such as a contest’s official rules), which will govern the submission of Your User-Generated Content, You hereby grant to Mattel, Inc., and You agree to grant to Mattel, Inc., the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise exploit in any manner whatsoever, all or any portion of Your User-Generated Content (and derivative works thereof), for any purpose whatsoever in all formats, on or through any media, software, formula, or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same, without any obligation or remuneration to You. Without limitation, the granted rights include the right to: (a) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, publish in searchable format, and remove such User-Generated Content and combine same with other materials, and (b) use any ideas, concepts, know-how, or techniques contained in any User-Generated Content for any purposes whatsoever, including developing, manufacturing, and marketing products and/or services. To further effect the rights and license that You grant to Mattel, Inc. to Your User-Generated Content, You also hereby grant to Mattel, Inc., and agree to grant to Mattel, Inc., the unconditional, perpetual, irrevocable right to use and exploit your name, persona, and likeness in connection with any User-Generated Content, without any obligation or remuneration to You. Except as prohibited by law, You hereby waive, and You agree to waive, any moral rights (including attribution and integrity) that You may have in any User-Generated Content, even if it is altered or changed in a manner not agreeable to You. To the extent not waivable, You irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights to Mattel, Inc. You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section 5.1.3).
5.1.4 Mattel, Inc.'s Exclusive Right to Manage All User-Generated Content . Mattel, Inc. may, but will not have any obligation to, review, monitor, display, post, store, maintain, accept, or otherwise make use of, any of Your User-Generated Content, and Mattel, Inc. may, in its sole discretion, delete, move, re-format, remove or refuse to post or otherwise make use of Your or any User-Generated Content without notice or any liability to You or any third party. Mattel, Inc. reserves the right to treat User-Generated Content on the Application as content stored at the direction of users for which Mattel, Inc. will not exercise control except to block or remove content that comes to Mattel Inc.'s attention and is deemed by Mattel, Inc., in its sole discretion, to be offensive, obscene, lewd, lascivious, filthy, violent, harassing, threatening, abusive, illegal or otherwise objectionable to Mattel, Inc., or to enforce the rights of third parties or the content restrictions set forth below in the Rules (defined in Section 5.1.7 below) when notice of their violation comes to Mattel, Inc.'s attention. Except as required by law, Mattel, Inc. does not assume any obligation to You to maintain, archive, allow access to or use of User-Generated Content on or through the Application for any period of time.
5.1.5 Representations and Warranties Related to Your User-Generated Content . Each time You submit any User-Generated Content, You represent and warrant that You are at least the age of majority in the country in which You reside and are the parent or legal guardian, or have all proper consents from the parent or legal guardian, of any minor who is depicted in or contributed to any User-Generated Content You submit, and that, as to that User-Generated Content, (a) You are the sole author and owner of the intellectual property and other rights to the User Generated Content, or You have a lawful right to submit the User-Generated Content and grant Mattel, Inc. the rights to it that You are granting by this User Agreement and any Additional Terms, all without any Mattel, Inc. obligation to obtain consent of any third party and without creating any obligation or liability of Mattel, Inc.; (b) the User-Generated Content is accurate; (c) the User-Generated Content does not and, as to Mattel, Inc.'s permitted uses and exploitation set forth in this EULA, will not infringe any intellectual property or other right of any third party; and (d) the User-Generated Content will not violate this EULA or any Additional Terms, or cause injury or harm to any person.
5.1.6 Enforcement. Mattel, Inc. has no obligation to monitor or enforce your intellectual property rights to Your User-Generated Content, but You grant us the right to protect and enforce Our rights to Your User-Generated Content, including by bringing and controlling actions in Your name and on Your behalf (at Mattel, Inc.'s cost and expense, to which You hereby consent and irrevocably appoint Mattel, Inc. as Your attorney-in-fact, with the power of substitution and delegation, which appointment is coupled with an interest).
5.1.7 Community Usage Rules. As a user of the Application, these Community Usage Rules ("Rules") are here to help You understand the conduct that is expected of members of the Application’s mobile communities ("Communities").
Nature of Rules . Your participation in the Communities is subject to all the terms in this EULA, including these Rules:
• Your User-Generated Content. Do not use any User-Generated Content that belongs to other people and pass it off as Your own; this includes any content that You might have found elsewhere on the Internet. For example, Your User-Generated Content should not contain any visible logos, phrases, or trademarks that belong to third parties. If anyone contributes to Your User-Generated Content or has any rights to Your User-Generated Content, or if anyone appears in the User-Generated Content, then You must also have their permission to submit such User-Generated Content to Mattel, Inc.. (For example, if someone has taken a picture of You and a friend, and You submit that photo to Mattel, Inc. as Your User-Generated Content, then You must obtain Your friend’s and the photographer’s permission to do so.)
• No Photos, Videos, or Images of Anyone Other Than You and Your Friends and Family . If You choose to submit photos to or through the Application, link to embedded videos, or include other images of real people, then make sure they are of You or of You and someone you know – and only if You have their permission to submit them. Additionally, if the photo, video, or image includes a minor, by submitting it, You affirm that You are the parent or guardian of any child, or have permission from the child’s parents or guardians, to do so.
• Act Appropriately. Be respectful of others’ opinions and comments so we can continue to build Communities for everyone to enjoy. If you think Your User-Generated Content might offend someone or be embarrassing to someone, then chances are it probably will and it doesn’t belong in the Application or posted to or through the Application. Cursing, harassing, stalking, insulting comments, personal attacks, gossip, and similar actions are prohibited. Your User-Generated Content must not threaten, abuse, or harm others, and it must not include any negative comments that are connected to race, national origin, gender, sexual orientation, or physical handicap. Your User-Generated Content must not be defamatory, slanderous, indecent, obscene, pornographic, or sexually explicit.
• Do Not Use for Commercial or Political Purposes. Your User-Generated Content must not advertise or promote a product or service or other commercial activity, or a politician, public servant, or law. If You submit User-Generated Content that Mattel, Inc. reasonably believes violates this paragraph, then We may take any legal action that We deem appropriate, in Our sole discretion.
• Do Not Use for Inappropriate Purposes. Your User-Generated Content must not promote any infringing, illegal, or other similarly inappropriate activity. If You submit User-Generated Content that Mattel, Inc. reasonably believes violates this paragraph, then We may take any legal action that We deem appropriate, in Our sole discretion.
• Be Honest and Do Not Misrepresent Yourself or Your User-Generated Content . Do not impersonate any other person, user, or Mattel, Inc., and do not submit User-Generated Content that You believe may be false, fraudulent, deceptive, inaccurate, or misleading, or that misrepresents Your identity or affiliation with a person or company.
• Others Can See. We hope that You will use the Communities to exchange information and content and have discussions with other members. However, please remember that the Communities are a public forum and User-Generated Content that You submit within a Community will be accessible and viewable by other users. Do not submit personally identifiable information (e.g., first and last name together, password, phone number, address, credit card number, medical information, e-mail address, or other personally identifiable information or contact information) on Community spaces and take care when disclosing this type of information to others.
• Don't Share Other People's Personal Information. Your User-Generated Content must not reveal another person’s address, phone number, e-mail address, social security number, credit card number, medical information, financial information, or any other information that may be used to track, contact, or impersonate that individual, unless, and in the form and by the method, specifically requested by Mattel, Inc..
• Don't Damage the Application or Anyone's Computers or Other Internet Devices . Your User-Generated Content must not contain or permit viruses, trojan horses, spyware, or any other technologies or malicious code that could affect the operation of the Application or any computer or other Internet or mobile Device.
Mattel, Inc. reserves the right to request at any time proof of the permissions referred to above in a form acceptable to Us. Failure to provide such proof may lead to, among other things, the User-Generated Content in question being removed from the Application and/or Your Account being terminated.
5.1.8 Your Interactions With Other Users; Disputes. You are solely responsible for Your interaction with other users of the Application, whether online or offline. Mattel, Inc. is not responsible or liable for the conduct or content of any user. Mattel, Inc. reserves the right, but has no obligation, to monitor or become involved in disputes between You and other users. Exercise common sense and your best judgment in your interactions with others (e.g., when you submit any personal or other information) and in all of your other online activities.
6. Representations and Warranties By End User: You represent and warrant that You (a) are the age of majority in Your country of residence (which is typically 18 years of age in most US states and non-US countries) and have the legal capacity to enter into this EULA, (b) are the parent or guardian of any child, or have permission from the child’s parents or guardians to include any information about the child in the Application, , (c) that You will use the Application only for lawful purposes and in accordance with this EULA, and (d) 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, uninstall it and destroy all copies of the Application. Sections, 5, 5.1, 7-11, 13 and 14 shall survive termination of this EULA.
8. Disclaimer of Warranties: YOUR USE OF THE APPLICATION AND ANY ASSOCIATED PRODUCTS 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, 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 Application;
• 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 affect 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.
10. 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. Wireless Features
12.1 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.
12.2 You agree that as to the Wireless Features for which You are registered, 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.
13. Dispute Resolution:
13.1 First -- Try to Resolve Disputes. If any controversy, allegation, or claim arises out of or relates to the Application or this EULA or to any of Company's actual or alleged intellectual property rights (collectively, “Dispute”), then You and Company agree to send a written notice to the other providing a reasonable description of the 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 13.1. Our notice to You will be sent to the email address You used to set up Your Account. Your notice to us must be sent to: Mattel Barbie (Shanghai) Trading Co., Ltd., 47F 2 Grand Gateway, 3 Hongqiao Road, Shanghai, 200030. 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, though nothing will require either You or Company to resolve the Dispute on terms with respect to which You and Company, in each party’s sole discretion, are not comfortable.
13.2 Arbitration. If we cannot resolve a Dispute as set forth in Section 13.1 above within 60 days of receipt of notice, then either You or Company may submit the Dispute to the Shanghai International Economic and Trade Arbitration Commission (“SHIAC”) for arbitration in Shanghai in accordance with the arbitration rules of SHIAC then in effect by a sole arbitrator appointed in accordance with the said rules. The arbitral award shall be final and binding upon the Parties. The cost of arbitration shall be allocated as determined by the arbitrator.
13.3 Injunctive Relief. The foregoing provisions of this Section 13 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. Miscellaneous Provisions:
14.1 You are responsible for obtaining and maintaining Your device and other equipment and software, and all Internet service providers, 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.
14.2 This EULA shall be governed by and construed in accordance with, and any Dispute will be resolved in accordance with, the laws of the People's Republic of China.
14.3 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.
14.4 Company reserves the right to discontinue any services provided to You or made available to You through the use of the Application.
14.5 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.
14.6 This EULA is written in English and Chinese. In case of inconsistency between the two language versions, the Chinese version shall prevail unless otherwise stated.
15. Consumer Contact: If You have any questions regarding this EULA, write to:
Via phone: [400 6789 496]; or
Via mail: Mattel Barbie (Shanghai) Trading Co., Ltd.
47/F 2 Grand Gateway
3 Hongqiao Road
Shanghai, 200030
]]>General Questions:
Q: What devices are compatible with the Fisher Price Smart Sweet Sleep APP?
A: Most iOS and Android phones are compatible. See www.fisherpricesmart.com for a list of known compatible devices.
Q: How do I connect my phone or tablet to my Smart product for the first time?
A: Click the “i” icon, tap on “Instructions” above, then tap on the link for the instructions for the product that you have. Please use the Smart Sweet Sleep APP to pair your phone with the Smart product and not the Bluetooth Settings on your phone.
Q: When I try to pair my phone or tablet with my Smart product, it asks me for a PIN. What should I use for the PIN?
A: Please use the Smart app to pair with your product, not your Bluetooth settings on your phone. No PIN will be required if you pair through the Smart Sweet Sleep APP.
Q: What should I do if I’m having a hard time pairing my phone or tablet with my Smart product?
A: First make sure your Smart product is turned on and that your phone or tablet is within 6 ft (1.8m) of your product. Depending on the product, press the pairing button or hold down the power button to initiate pairing (refer to your product’s instructions for full details). On the main screen, use the left and right arrow icons to scroll through all of the available products. A picture of your product with a yellow or green border around it should appear. If you do not see a product icon with a yellow or green border around it, there may be a problem with your phone or your product.
Q: I don’t see my Smart product in the app. What’s the problem?
A: From the main screen, use the left and right arrow icon buttons to scroll through all available products.
Q: Why do I see a message that asks me to update my product’s software?
A: Occasionally we update the software on Smart products to improve performance or add features. To ensure best performance, please update the software when asked. It should only take a few minutes. Keep the app open and within range of your product while it is updating. If it fails, restart both the product and the app, then try again.
Q: How often should I need to pair the app to my Smart product?
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: I see a message that says “Someone else is already connected.” What does that mean?
A: Only one person in your home can control the Smart product at a time. If someone else in your home is controlling the Smart product through the app, he or she will need to close the app before you can use it. If you see “someone else is already connected” when you know nobody else in your home is connected, please wait 30 seconds before attempting to re-pair with your Smart product.
Q: Can I control more than one Smart product at a time from my phone or tablet?
A: Yes, you can!
Q: Can I control my Smart product from more than one phone or tablet at the same time?
A: No, only one phone or tablet can control your Smart product at a time. One person will have to close the app (or disconnect) for the other to take control.
Q: How far away can I be from my Smart product before it stops working?
A: You can control your Smart product from up to 150 ft (45m). away. However, walls and objects in your home may reduce this distance.
Q: My app shows that it is not connected, even though I’ve connected to it before. What’s the problem?
A: First try getting closer to your Smart product. You may be too far away to control it. Then please wait 30 seconds for it to establish a connection. If your Smart product uses batteries, it may have gone into a low power mode. Press any button on the Smart product to wake it back up. It will go back into a low power mode after 25 hours of no activity.
Q: Can I add music from my phone or tablet to my Smart product?
A: No, the app does not currently allow your personal music to be played by your Smart product.
Q: I have more than one of the same Smart product. How can I tell which one is which in the app?
A: From the main screen on the app, tap the picture of one of your products. After you enter the product control page, if you tap on the name of the product at the top of the screen, you can rename it to whatever you want! Then it will be much easier to tell the difference between your products.
Q: What are Smart Messages?
A: Smart Messages can send you notifications on your phone or tablet about your Smart product. For example, they can tell you when the music is about to stop. Other users in your home may not be able to control your product while Smart Messages are turned on and the app is open on your phone.
Q: What does the Play/Pause settings button do?
A: When you see the Pause All Settings button, press it to turn off all features of your Smart product at the same time. The app will remember what it was doing when it was paused. Then you can press the Play All Settings button to have your Smart product resume all features that were on when it was paused.
Q: How do I use the Save Settings buttons?
A: The Save Settings buttons are presets that you can use to save your favorite combinations of features on your Smart Product. First turn on all of your favorite settings, then press the “1” or “2” button. The next time you press that button, it will turn on all of your favorite settings. You can set two presets this way. If you want to overwrite one of the presets, simply press and hold the “1” or “2” button. You will get a visual indication when the new preset has been saved.