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Fisher-Price Kid-Tough™ FP3™ Player Content License Agreement
PLEASE READ THIS LICENSE AGREEMENT CAREFULLY BEFORE DOWNLOADING ANY CONTENT FROM THE FISHER-PRICE ONLINE CONTENT STORE. BY DOWNLOADING CONTENT FROM THE FISHER-PRICE ONLINE CONTENT STORE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE AGREEMENT, AND THE END USER LICENSE AGREEMENT FOR THE FISHER-PRICE KID-TOUGH™ FP3™ PLAYER SOFTWARE, ALL OF WHICH ARE ACCESSIBLE THROUGH THE SOFTWARE. IF YOU DO NOT AGREE TO BE BOUND BY THESE AGREEMENTS, DO NOT DOWNLOAD, USE OR DISTRIBUTE ANY CONTENT FROM THE FISHER-PRICE ONLINE CONTENT STORE.
1. Definitions
1.1 “Company” shall mean Fisher-Price, Inc.
1.2 “Player” shall mean the Fisher-Price Kid-Tough™ FP3™ Player.
1.3 “Software” shall mean the software that is used with the Player and is installed on the user’s personal computer as well as accompanying documentation.
1.4 “Software EULA” shall mean the Fisher-Price Kid-Tough™ FP3™ Player Software End User License Agreement, which can be found using the Software.
1.5 “Store” shall mean the Fisher-Price Online Content Store that provides digital downloads accessible by using the Software.
1.6 “Content” shall mean songs or audio story books that are packaged with the Player and other additional content available for download from the Store.
“Privacy Policy” shall mean the Fisher-Price Privacy Policy, which is made available using the Software.
2. General: The Content provided by the Store is licensed, not sold, to you by Company for use only in accordance with the terms of this License Agreement.
3. License Grant: Subject to your agreement to the terms and conditions set forth in this License Agreement as well as the Software EULA, Company grants to you a personal, non-commercial, non-exclusive and license in the United States, with no right to grant sublicenses, to:
3.1 Download and use the Content in conjunction with the Software;
3.2 Transfer the Content from the Software to a Player;
3.3 Use the Content on a Player and on the Software;
3.4 Make one copy of the Content in machine-readable form for backup purposes only;
3.5 Except as provided in this Section 3.5, you may not rent, lease, sublicense, or transfer the Content. You may only make a one-time permanent transfer of all of your remaining license rights to the Content to another party, provided that:
3.5.1 the transfer includes all of the Content, including originals and copies;
3.5.2 you do not retain any copies of the Content; and
3.5.3 the party receiving the Content reads and agrees to accept the terms of this License Agreement as well as the Software EULA.
4. Store: Content may be downloaded for use in the Player via the Store. The Store is operated by Digital River, Inc. Any applicable conditions of use of the Store or privacy restrictions pertaining to information collected by the Store are governed by those policies established by Digital River, Inc. For more information, see Digital River’s website at www.digitalriver.com or any applicable notices from Digital River within the Store. Nevertheless, by using the Software to access the Store, you additionally agree to the following conditions:
4.1 By downloading a copy of any Content from the Store, you agree to be bound by this Content License, which is accessible using the Software;
4.2 You agree that should you choose to ‘opt-in’ pursuant to Digital River’s privacy policy, that any information shared with Company will be governed by Company’s Privacy Policy, which is accessible using the Software.
5. Limitations of Content: Use of the Content is subject to the following limitations:
5.1 You agree to download the Content only by using a registered installation of the Software.
5.2 You agree not to alter the encoding scheme of the Content in such a way that enables the Content to be played by any device other than a registered Player or by your registered installation of the Software. In particular, you agree not to re-encode content in the MP3 format, AAC format or any other scheme (either proprietary or non-proprietary) and not to play it on any other device such as the Apple iPod.
5.3 You acknowledge and agree that the Player can only play the Content encoded in the FP3™ format and cannot play Content encoded in other formats, such as the MP3 format or AAC format.
7. Reservation: Company and its licensors reserve all rights not expressly granted to you in this License Agreement. Company and its licensors retain all title, interest and ownership of all intellectual property rights in and to the Content, including, but not limited to, all copyright and rights and interests of every kind or nature in and to all works based upon, incorporated in, derived from, incorporating or relating to the Content or from which the Content is derived, as well as the right to exploit any of the foregoing in all media and by any manner and means now known or hereafter devised, throughout the universe, in perpetuity.
8. Termination: This License Agreement is effective until terminated. Your rights under this License Agreement will terminate automatically without notice from Company should you fail to comply with any of the terms of this License Agreement. Upon termination, you agree to cease all use of the Content and destroy all copies of the Content.
9. Disclaimer of Warranties: YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE DOWNLOADED CONTENT IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE CONTENT IS PROVIDED “AS IS,” WITH ANY AND ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. COMPANY AND ITS LICENSORS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE CONTENT, EITHER EXPRESS OR IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. COMPANY DOES NOT WARRANT THAT THE CONTENT IS ERROR-FREE OR WILL BE UNINTERRUPTED, FREE FROM SPYWARE, MALWARE, ADWARE, VIRUSES, WORMS OR OTHER MALICIOUS CODE, OR WILL FUNCTION TO MEET YOUR REQUIREMENTS.
10. Limitation of Liability: TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL COMPANY BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, DENIALS OF SERVICE (INCLUDING COMPUTER CRASHES), BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE CONTENT, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE), EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL COMPANY’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES EXCEED THE PURCHASE PRICE OF THE CONTENT.
11. Indemnity: YOU AGREE TO INDEMNIFY AND HOLD FISHER-PRICE AND ITS AFFILIATES HARMLESS FROM ANY CLAIMS, PROCEEDINGS, DAMAGES, COSTS, AND EXPENSES ARISING OR RESULTING FROM YOUR USE OF THE SOFTWARE OR PLAYER OR CONTENT FOR ANY ILLEGAL PURPOSE.
12. Miscellaneous Provisions:
12.1 This License Agreement will be governed by and construed in accordance with the laws of the State of New York.
12.2 Any claim or dispute between you and Company or by you against any agent, employee, successor, licensor or assignee of Company, whether related to this License Agreement or otherwise, shall be resolved by binding arbitration as governed by the American Arbitration Association.
12.3 If for any reason a court of competent jurisdiction finds any provision of this License Agreement, or portion thereof, to be unenforceable, the remainder of this License Agreement shall continue in full force and effect.
12.4 Company reserves the right, at its sole discretion, to change, modify, add or remove portions of this License Agreement, at any time. It is your responsibility to check this License Agreement periodically for changes. Your continued use of the Content following the posting of changes in the Legal Documents section of the Store will mean that you accept and agree to the changes. You will be deemed to have accepted any revised licenses posted in the Legal Documents section of the Store if you continue to use the Content within thirty (30) days after the earliest date on which the revised license is posted.
12.5 This License Agreement, along with the Software EULA, constitutes the entire agreement with respect to the use of the Content licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter. In the event of a conflict between this Content License Agreement and the Software EULA, the terms of this Content License Agreement will govern.
13. Consumer Contact: If you have any questions regarding this License Agreement, or if you would like to contact Company for any other reason, write to:
Attention: Legal Department, Kid-Tough™ FP3™ Player
Fisher-Price, Inc.
636 Girard Avenue
East Aurora, New York 14052