End User License Agreement ("EULA") for iPhone/iTouch/iPad App
This End‐User License Agreement (the "EULA" or "Agreement") governs Your use of the I-Alert Application ("Application") provided by TOMY International, Inc. (the "Company") for use in conjunction with TOMY'S First Year's True Fit car seat (the "Car Seat"). The Application is designed to operate on your iPhone, iTouch or iPad device. This EULA governs only that version of the Application that operates on an iPhone, iTouch or iPad device, or other computing device marketed or manufactured by Apple, Inc. (your "Apple Computing Device"). You may download the Application to Your Apple Computing Device at the Company's website at http://www.tomy.com (the "Website"). You must accept this EULA at the Website by clicking the "I Accept" button below prior to Your downloading and use of the Application. Once You have downloaded the Application, You must then register Your Car Seat for use with the Application by following the registration instructions displayed to You on the Application.
While You are not required to do so, the Company strongly encourages You also to separately register Your Car Seat with the National Highway Traffic Safety Administration ("NHTSA") by completing the NHTSA registration form accessible through the Application. The information You supply through the NHTSA registration process is kept by the Company and not transmitted to NHTSA, but is used by the Company to notify You of any product recalls initiated by NHTSA that pertain to the Car Seat, or other NHTSA initiated information relevant to the Car Seat. The Company will not share the information You supply through the NHTSA registration process with any third party; however, if You complete the NHTSA registration form, You consent to Your receipt of notices from the Company about NHTSA announcements.
Your use of the Application with Your Apple Computing Device may result in additional charges by your cellular service provider for text messages or data usage. Please consult your service provider for more information. This EULA may be amended from time to time by the Company. The most recent version of this Agreement shall always be available on the Internet at http://www.tomy.com and the most recent version shall supersede any and all other versions of this Agreement. Company reserves the right to change or modify this Agreement or any other Company policies related to use of the Application at any time and at its sole discretion by posting revisions on the Internet at http://www.tomy.com. Continued use of the Application following the posting of these changes or modifications will constitute Your acceptance of such changes or modifications.
Company and You, the end‐user of the Application, acknowledge that the Agreement is between the Company and You and not between You and Apple, Inc. Notwithstanding the foregoing, You acknowledge that Apple, Inc. and its subsidiaries are third‐party beneficiaries of this Agreement and that Apple, Inc. has the right (and is deemed to have accepted the right) to enforce this Agreement. The Company is solely responsible for the Application and any content contained therein. You acknowledge that Apple, Inc. has no obligation whatsoever to furnish any maintenance and support services with respect to the Application.
You acknowledge that you have reviewed the App Store Terms and Conditions (located online at http://www.apple.com/legal/itunes/us/terms.html#APPS). You represent and warrant that (i) You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) You are not listed on any U.S. Government "watch list" of prohibited or restricted parties, including the Specially Designated Nationals list published by the Office of Foreign Assets Control of the U.S. Treasury or the Denied Persons List published by the U.S. Department of Commerce.
YOU FURTHER UNDERSTAND AND AGREE THAT USE OF THE CAR SEAT AND THE APPLICATION IS NOT INTENDED AS A SUBSTITUTE FOR A PARENT'S OR CARE GIVER'S REASONABLE AND PRUDENT JUDGMENTS AND ACTIONS CONCERNING THE WELL BEING OF MINORS IN THEIR PERMANENT OR TEMPORARY CUSTODY OR CONTROL, AND WILL NOT IN ANY WAY RELIEVE SUCH PERSONS OF THEIR LEGAL OBILIGATIONS TO THE MINORS UNDER THEIR SUPERVISION.
2. Incorporation of Apple, Inc.'s Licensed Application End User License Agreement.
This Agreement incorporates by reference the Licensed Application End User License Agreement (the "LAEULA") published by Apple, Inc. (located online at http://www.apple.com/legal/itunes/appstore/dev/stdeula/). For purposes of this Agreement, the "Application" is considered the "Licensed Application" as defined in the LAEULA and "Company" is considered the "Application Provider" as defined in the LAEULA. If any terms of this Agreement conflict with the terms of the LAEULA, the terms of this Agreement shall control.
3. Allowable Uses of the Application.
Any use of the Application in any manner not allowed under this Agreement or the LAEULA, including, without limitation, resale, transfer, modification or distribution of the Application or copying or distribution of text, pictures, music, barcodes, video, data, hyperlinks, displays and other content provided by the Application is prohibited. This Agreement does not entitle You to receive and does not obligate Company to provide hard‐copy documentation, support, telephone assistance, or enhancements or updates to the Application.
4. Limitation of Liability.
TO THE FULLEST EXTENT ALLOWABLE UNDER APPLICABLE LAW, (A) IN NO EVENT SHALL COMPANY BE LIABLE TO YOU WITH RESPECT TO USE OF THE APPLICATION; AND (B) IN NO EVENT SHALL COMPANY BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE APPLICATION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OR CORRUPTION OF DATA OR FAILURE OR MALFUNCTION OF YOUR APPLE COMPUTING DEVICE. YOUR SOLE REMEDY UNDER THIS AGREEMENT IS TO CEASE USE OF THE APPLICATION. The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
5. Warranty Disclaimers.
THE APPLICATION AND ANY SERVICES PERFORMED OR PROVIDED BY THE APPLICATION ARE PROVIDED "AS IS" AND WITHOUT WARRANTY OF ANY KIND. COMPANY HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE APPLICATION AND ANY SERVICES PERFORMED OR PROVIDED BY THE APPLICATION, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON‐INFRINGEMENT OF THIRD PARTY RIGHTS. COMPANY DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE APPLICATION, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE APPLICATION WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE APPLICATION WILL BE UNINTERRUPTED OR ERROR‐FREE, OR THAT DEFECTS IN THE APPLICATION WILL BE CORRECTED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE APPLICATION IS AT YOUR SOLE RISK.
6. Your Information.
The Application may require transmission of information provided by You including usernames/passwords, your name, address, and e‐mail addresses ("Your Information"). You consent to the transmission of Your Information to Company and its agents. You acknowledge that Your Information will be stored by the Application in your Apple Computing Device in an encrypted format. Company makes no warranty that a third party cannot decrypt Your Information should a third party come into possession of Your Apple Computing Device. Company suggests and requests that You use all security features of Your Apple Computing Device, including the "Pass code Lock" function, to protect Your Apple Computing Device and the confidentiality of Your Information. For further information on how the Company protects Your Information, read the Privacy Statement, which is incorporated into this Agreement by reference. The newest version of the Privacy Statement is available on the Company's website at http://www.tomy.com.
7. Acceptable Use.
Use of the Application and any of Your Information transmitted in connection with the Application is limited to the functionality of the Application. In no event may the Application be used in a manner that (a) harasses, abuses, threatens, defames or otherwise infringes or violates the rights of any other party; (b) is unlawful, fraudulent or deceptive; (c) uses technology or other means to access Company's proprietary information that is not authorized by Company; (d) uses or launches any automated system to access Company's website or computer systems; (e) attempts to introduce viruses or any other malicious computer code that interrupts, destroys or limits the functionality of any computer software, hardware or telecommunications equipment; (f) attempts to gain unauthorized access to Company's computer network or user accounts; (g) encourages conduct that would constitute a criminal offense, or would give rise to civil liability; or (h) violates this Agreement. Company reserves the right, in its sole discretion, to terminate this Agreement, request that You remove the Application from Your Apple Computing Device for any reason, including but not limited to Company's reasonable conclusion that You have violated this Agreement.
8. Information Stored In Seat Monitoring Device.
Your Car Seat includes a monitoring device (the "Sensor") that becomes functional once You activate it through the Application. Once activated, the Sensor senses whether the Car Seat is occupied while the vehicle is in motion, and if so, the Sensor sends a continuous signal to Your Apple Computing Device indicating that the Car Seat is occupied and the temperature of the ambient air surrounding the Car Seat. If the Car Seat becomes unoccupied while the vehicle is in motion, the Sensor will send an alert through the Application to Your Apple Computing Device warning You that the Car Seat is no longer occupied. In addition to the warning, the Sensor will continue to notify You of the ambient air temperature surrounding the Car Seat
The Sensor also maintains records of the last [Insert appropriate number here] alerts sent to Your Apple Computing Device, including the date and time that an alert was sent, and the information included in the alert (the "Sensor Data"). The Sensor Data may be extracted from the Sensor only by the Company or its agents, or by duly authorized officials of law enforcement agencies, using data extraction functionality developed for such purpose by the Company, or for the Company by the Company's third party licensor(s). You expressly consent to the collection and storage of the Sensor Data within the Sensor, and the Company's extraction and disclosure of the Sensor Data pursuant to a demand for such Data that Company has a good faith basis to believe is lawful and proper. You acknowledge and agree that collection and storage of the Sensor Data within the Sensor is a valuable and legitimate feature of the First Years True Fit car seat. The Company disclaims any responsibility or liability to You for the accuracy of the Sensor Data or manner in which the Sensor Data may be interpreted by any third parties to whom the Sensor Data may be disclosed. You expressly waive any liability of Company for the content of the Sensor Data or for the disclosure of the Sensor Data as provided herein.
You agree to defend, indemnify, and hold harmless Company and its employees, contractors, officers, and directors (the "Indemnified Parties") from any and all losses, injuries, damages, costs, lawsuits, fines, penalties, liabilities, expenses (including reasonable attorney's fees, and any litigation or arbitration costs and expenses incurred at a trial or an arbitration proceeding, on appeal, or by reason of any suit to enforce a judgment or an arbitration award) that arise from allegations (a "Claim") that You have used or misused the Application in a manner that violates this Agreement or violates any rights of a third party. Any Indemnified Party shall notify You promptly in writing upon its receipt of any Claim, and shall cooperate with You on reasonable terms and conditions in Your defense or settlement of any Claim. You shall have the right and duty to engage at Your sole cost and expense qualified legal counsel to defend the Indemnified Parties. An Indemnified Party shall have the right to engage independent legal counsel at its sole cost and expense to monitor Your defense or settlement of any Claim. You shall have the right to settle or compromise any Claim, provided that any Indemnified Party must approve in writing any settlement that obligates the Indemnified Party to perform any act, or assume any obligation, not otherwise provided in this Agreement, which approval shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, Company reserves the right in its sole discretion to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, in which event You will remain obligated for the costs of such a defense, and will cooperate in asserting any available defenses.
10. Intellectual Property Rights.
You and Company acknowledge that, in the event of any third party claim that the Application or Your use of the Application infringes any third party's intellectual property rights, Company, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. Should the Application be found to infringe any intellectual property rights of a third party, Your sole remedy shall be either to cease using the Application or to use a non-infringing version of the Application should Company choose to provide you with such a non‐infringing version.
11. Product Claims.
You acknowledge that Company, not Apple, Inc., is responsible for addressing any claims relating to the Application, any content delivered to You through the Application, or Your possession and/or use of the Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar laws or regulations.
This Agreement is effective until terminated by You or Company. You may terminate this Agreement by ceasing to use the Application and deleting it from your mobile phone. This Agreement will terminate automatically without notice from Company if You fail to comply with any term(s) of this Agreement. Upon termination of the Agreement, You shall cease all use of the Application, and destroy all copies,
full or partial, of the Application.
13. Contact Information.
Should You wish to contact the Company with any questions, complaints or claims with respect to the Application, you should visit the Company's website at www.tomy.com or send an email to the Company at [Insert Email Address].
14. Proprietary Nature of the Application and Company Marks.
As between You and the Company, the Company owns all intellectual property rights in and to the Application and any and all works subject to copyright, trademarks, service marks and other intangible content included in the Application. The Application may display trademarks, service marks or other content in connection with the services it provides and such trademarks, service marks or other content remains at all times the property of the Company, or their respective owners. You do not have any right or license with respect to any copyrighted works, trademarks, service marks and other content owned by Company or any third party that is visible on or provided to You through the Application.
15 Third Party Materials and Links.
The Application or the Website at which you download the Application may display to You information about content, data, products, services, applications or materials available from third parties ("Third Party Materials") or provide links to certain third party web sites ("Third Party Links"). If You use Third Party Materials or Third Party Links, You acknowledge that Company is not responsible for examining or evaluating the content, accuracy, validity, legality or any other aspect of such Third Party Materials or Third Party Links. Company does not warrant, guarantee or endorse any Third Party Materials or Third Party Links and will not have any liability to You for any Third Party Materials or Third Party Links or to any other party for Your misuse or use of Third Party Materials or Third Party Links. Content provided in or through any Third Party Materials or Third Party Links is for informational purposes only and should not be relied upon unless You verify the content with the applicable Third Party. You agree that Third Party Materials and Third Party Links may contain proprietary content and information that is protected by applicable intellectual property and other laws, including but not limited to copyright, and that You will not use such proprietary content, information or materials in any way whatsoever except for the permitted use of such Third Party Materials or Third Party Links. You agree not to use any Third Party Materials or Third Party Links in any manner that would be a breach of, or reasonably construed as a breach of, the terms of this Agreement. Company reserves the right to change, suspend, remove, modify access to or disable Your access from the Website or Application to any Third Party Materials or Third Party Links at any time without notice.
16. "Opt‐In" For Push Messaging.
The Company may send You "push messages" or "push notifications" (collectively "Push Communications") if Your Apple Computing Device supports Push Communications. By installing the Application, You agree to accept Push Communications and "opt‐in" to receive them. Should You wish to cease receiving Push Communications from the Company, You may turn off Push Communications for the Application by opening the "Settings" on your Apple Computing Device, selecting the "Notifications" tab and selecting the I-Alert button. You should be aware, however, that if You do so, You will not receive notices sent to You by the Company containing information from NHTSA about Your Car Seat.
17. Governing Law/Venue/Attorneys Fees/Jury Trial Waiver.
The laws of the State of Illinois, excluding its conflicts of law rules, govern this Agreement and Your use of the Application. Any action arising under this Agreement or use of the Application shall be judged in the state or federal courts having jurisdiction over DuPage County, Illinois, and the parties hereby waive any objections to the personal jurisdiction or venue of such courts. In addition to any and all relief deemed appropriate under the circumstances, in any action brought to enforce or interpret this Agreement, the court or any arbitration panel shall award the prevailing party its reasonable attorneys' fees and litigation or arbitration expenses incurred in bringing the action. The parties further waive any rights to a trial by jury in any action brought to enforce or interpret this Agreement.
18. No Export.
You may not export or re‐export the Application, including any export (a) into any countries subject to an embargo by the United States or (b) to any person on the Specially Designated Nationals list published by the Office of Foreign Assets Control of the U.S. Treasury or the Denied Persons List and Entity List published by the U.S. Department of Commerce.
The following provisions of this Agreement shall survive its termination for any reason:
4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 17, 18, and 19.