Welcome to the world of Smart Toy®. Our toys allow kids to have conversations and go on magical adventures with their toys. A Smart Toy® will function without any connectivity, but pairing it to your home’s Wi-Fi connection via the parent app ("Smart Toy App") will allow the toy to automatically update with new content, know your child’s name and receive firmware updates.
THESE APPLICATION TERMS (THE "TERMS") APPLY TO YOUR (AND YOUR CHILDREN'S) USE OF THE SMART TOY APP PROVIDED BY SMART TOY, LLC. ("SMART TOY").
PLEASE READ THE TERMS AND CONDITIONS OF THE TERMS CAREFULLY.
BY DOWNLOADING THE SMART TOY APP, USING THE SMART TOY APP, YOU ACKNOWLEDGE AND AGREE THAT: (I) YOU HAVE READ ALL OF THE TERMS AND CONDITIONS OF THE TERMS (INCLUDING, THE TERMS AND CONDITIONS OF THE THIRD PARTY TERMS THAT ARE INCORPORATED INTO THE TERMS BY REFERENCE); (II) YOU UNDERSTAND ALL OF THE TERMS AND CONDITIONS OF THE TERMS; AND (III) YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THE TERMS AND ALL APPLICABLE LAWS.
IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THE TERMS, SMART TOY IS UNWILLING TO GRANT YOU (OR YOUR CHILDREN) THE RIGHT TO USE THE SMART TOY APP.
THE TERMS CONSTITUTE AN ENFORCEABLE AGREEMENT BY AND BETWEEN YOU AND SMART TOY.
FOR PURPOSES OF THE TERMS, "SMART TOY", "US", "WE" OR "OUR" MEANS AND INCLUDES SMART TOY AND ITS INVESTORS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES AND ASSIGNS. "YOU" MEANS EACH PERSON WHO ACCESSES OR USES THE SMART TOY APP (INCLUDING, BUT NOT LIMITED TO YOUR CHILDREN), WHETHER OR NOT SUCH PERSON PERSONALLY INSTALLED THE SMART TOY APP. FURTHER, "YOUR CHILDREN" OR "YOUR CHILD" REFERS TO YOUR CHILD, YOUR CHILDREN OR A CHILD OR CHILDREN UNDER YOUR GUARDIANSHIP OR SUPERVISION.
Creating an Account
In order to create an account for the Smart Toy App, you must be 13 years of age or older. By creating an account for the Smart Toy App, you represent and warrant that you are 13 years of age or older. In consideration of your use of the Smart Toy App, you agree to: (i) provide accurate, current and complete information about you as may be prompted by any registration forms via the Smart Toy App ("Registration Data"); (ii) maintain the security of your password and identification; (iii) maintain and promptly update the Registration Data, and any other information you provide to Smart Toy, to keep it accurate, current and complete; and (iv) accept all risks of unauthorized access to the Registration Data and any other information you provide to Smart Toy. You are responsible for safeguarding the password that you use to access the Smart Toy App. When you register for the Smart Toy App, you should use a strong password, including a combination of upper and lower case letters. We suggest that you not use the same password for the Smart Toy App that you use for other applications or services.
Subject to the terms, conditions and limitations set forth in the Terms, Smart Toy grants you a nonexclusive, non-transferable and revocable license to use the Smart Toy App on any mobile device that you own or control. The terms of the license will also govern any upgrades provided by Smart Toy that replace and/or supplement the original Smart Toy App, unless such upgrade is accompanied by a separate license, in which case the terms of that license will govern.
You agree not to do, or authorize or permit any third party to do, any of the following: (i) copy, reproduce or distribute the Smart Toy App; (ii) make the Smart Toy App available over a network where it could be used by multiple devices at the same time; (iii) sell, license, rent, assign, lease, lend, redistribute or sublicense the Smart Toy App; (iv) modify, port, translate, or create derivative works of the Smart Toy App; (v) decompile, disassemble, reverse engineer or otherwise attempt to derive, reconstruct, identify or discover any source code, underlying ideas, or algorithms of the Smart Toy App by any means (except as and only to the extent any of these restrictions are prohibited by applicable law); (vi) submit any automated or recorded requests to the Smart Toy App; (vii) use the Smart Toy App for commercial use; (viii) use the Smart Toy App for purposes of comparison with or benchmarking against products or services made available by third parties; (ix) knowingly take any action that would cause the Smart Toy App to be placed in the public domain; and (x) remove, alter or obscure any copyright, trademark or other proprietary rights notice or labels on or in the Smart Toy App. If you violate any of the restrictions set forth in the Terms, your right to use the Smart Toy App will immediately cease and you may have infringed the copyright and other rights of Smart Toy, which may subject you to prosecution and damages. Smart Toy reserves all rights not expressly granted in the Terms, and no licenses are granted by Smart Toy to you under the Terms, whether by implication, estoppel or otherwise, except as expressly set forth in the Terms.
Consent to Use of Data and Communications
You agree that Smart Toy may collect and use technical data and related information in connection with your use of the Smart Toy App including, but not limited to, contact information and technical information about your device, system and the Smart Toy App software, and peripherals, that are gathered periodically to facilitate the features and functionality of the Smart Toy App and software updates, product support and other services.
Third Party Components
Any suggestions, comments or other feedback provided by you or your children to us with respect to the Smart Toy App and/or our products and services will constitute our confidential information. We will be free to use, disclose, reproduce, license and otherwise distribute, and exploit this feedback as we see fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.
You agree that you are solely responsible for your conduct (and the conduct of anyone using your account) with respect to the Smart Toy App, and you agree that you will not do any of the following in connection with the Smart Toy App:
- Use the Smart Toy App in any manner that could damage, disable, overburden or impair the functioning of the Smart Toy App in any manner;
- Use the Smart Toy App for any illegal or unauthorized purpose or engage in, encourage, or promote any illegal activity, or any activity that violates the Terms;
- Modify, adapt or hack the Smart Toy App; or
- Infringe upon or violate the rights of Smart Toy.
Any use of the Smart Toy App in violation of the Terms may result in, among other things, termination or suspension of your rights to use the Smart Toy App.
Trademarks and Third Party Trademarks
Smart Toy's name, Smart Toy's logos and any other Smart Toy product, service name or slogan included in the Smart Toy App are trademarks of Smart Toy and may not be copied, imitated or used, in whole or in part, without the prior written permission of Smart Toy. In addition, the look and feel of the Smart Toy App, including all custom graphics, button icons and scripts are the service marks, trademarks and/or trade dress of Smart Toy and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Smart Toy App ("Third Party Trademarks") are the property of their respective owners, and the use of such Third Party Trademarks will inure to the benefit of each trademark owner. The use of such Third Party Trademarks is intended to denote interoperability and does not constitute: (i) an affiliation by Smart Toy and its licensors with such company; or (ii) an endorsement or approval by such company of Smart Toy and its licensors and its products or services.
Except for the license expressly stated in the Terms, you are not granted any rights in or to the Smart Toy App by implication, estoppel, or other legal theory, and all rights in and to the Smart Toy App not expressly granted in the Terms are hereby reserved and retained by Smart Toy. All information, materials and content including, but not limited to, text, graphics, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, typefaces, source and object code, format, queries, algorithms, and other content (collectively "Smart Toy Material") is owned by Smart Toy or is used with permission. This Smart Toy Material is protected in all forms, media and technologies now known or hereinafter developed.
Modification of Terms
Smart Toy reserves the right to change or modify any of the terms and conditions contained in the Terms, or any policy or guideline of the Smart Toy App, at any time and in its sole discretion by posting the changes/modifications via the Smart Toy App. Additionally, notice may be provided by sending an email to you or by such other form of notice as determined by Smart Toy. Changes/modifications will only become effective at the end of the 30 day period commencing upon the posting of the changes/modifications via the Smart Toy App ("Notice Period"). If you disagree with any changes/modifications, please stop using the Smart Toy App within the Notice Period. Your use of the Smart Toy App after the Notice Period will constitute your acceptance of the changes/modifications. Also, we recommend that you review the Terms whenever you access the Smart Toy App and, at least, every 30 days to make sure that you understand the terms and conditions that will apply to your use of the Smart Toy App.
Suspension and Termination
Smart Toy may suspend and/or terminate your rights with respect to the Smart Toy App for any reason or for no reason at all and with or without notice at Smart Toy's sole discretion. Suspension and/or termination may include restricting access to and use of the Smart Toy App. If your rights with respect to the Smart Toy App are suspended and/or terminated, you agree to make no further use of the Smart Toy App during suspension or after termination. Smart Toy reserves the right, but does not undertake any duty, to take appropriate legal action including, but not limited to, the pursuit of civil, criminal and/or injunctive redress against you for continuing to use the Smart Toy App during suspension or after termination, and you agree that Smart Toy may recover its reasonable attorney's fees and court costs from you for such actions. Even while your membership is suspended and after it is terminated, the Terms will remain enforceable against you. All of the terms and conditions of the Terms survive any termination of the Terms (except the "License" and "Consent to Use of Data and Communications" sections).
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SMART TOY APP IS AT YOUR SOLE RISK. THE SMART TOY APP IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. SMART TOY DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE TERMS, THE SMART TOY APP, THE SMART TOY MATERIAL, ANY SMART TOY PRODUCTS AND SERVICES, THE RECORDINGS, THIRD PARTY SITES AND THIRD PARTY TRADEMARKS WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL: (I) WARRANTIES OF MERCHANTABILITY; (II) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT SMART TOY KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE); AND (III) WARRANTIES OF NON-INFRINGEMENT OR CONDITION OF TITLE. SMART TOY DOES NOT WARRANT THAT: (A) THE FUNCTIONS CONTAINED IN THE SMART TOY APP WILL BE ACCURATE OR MEET YOUR REQUIREMENTS; (B) THE OPERATION OF THE SMART TOY APP WILL BE UNINTERRUPTED OR ERROR-FREE; OR (C) ANY DEFECTS IN THE SMART TOY APP WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION, GUIDELINES OR ADVICE GIVEN BY SMART TOY OR ITS AUTHORIZED REPRESENTATIVE WILL CREATE A WARRANTY.
You agree, at your sole expense, to defend, indemnify and hold us and our licensors, harmless from and against any and all actual or threatened suits, actions, proceedings (at law or in equity), claims, damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorney fees, costs, penalties, interest and disbursements) caused by, arising out of, resulting from, attributable to or in any way incidental to: (i) your conduct; or (ii) your violation (or alleged violation) of the Terms or the rights of any third party.
Limitation of Liability
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL SMART TOY BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHATSOEVER, ARISING OUT OF OR RELATED TO THE SMART TOY APP, THE SMART TOY MATERIAL, ANY SMART TOY PRODUCTS OR SERVICES, THE RECORDINGS, THIRD PARTY SITES OR THIRD PARTY TRADEMARKS, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY) AND EVEN IF SMART TOY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.
You acknowledge and agree that the availability of the Smart Toy App is dependent on the third party from which you received the Smart Toy App, e.g., the Apple iPhone App Store ("App Store"). You acknowledge and agree that the Terms are between you and Smart Toy and not with the App Store. Smart Toy, not the App Store, is solely responsible for the Smart Toy App, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance, or intellectual property infringement). You agree to pay all fees charged by the App Store in connection with the Smart Toy App (if any). You agree to comply with, and your license to use the Smart Toy App is conditioned upon your compliance with, all applicable third party terms of agreement when using the Smart Toy App.
No Third Party Beneficiaries
Except as otherwise expressly elsewhere in the Terms, there will be no third party beneficiaries to the Terms.
Modifications to the Smart Toy App
Smart Toy reserves the right in its sole discretion to review, improve, modify or discontinue, temporarily or permanently, the Smart Toy App and/or any features, information, materials or content on the Smart Toy App with or without notice to you. You agree that Smart Toy will not be liable to you or any third party for any modification or discontinuance of the Smart Toy App or any portion thereof.
You may not use or otherwise export or re-export the Smart Toy App except as authorized by United States law and the laws of the jurisdiction in which the Smart Toy App was obtained. In particular, but without limitation, the Application may not be exported or re-exported (i) into any U.S. embargoed countries or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List. By using the Smart Toy App, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the Smart Toy App for any purposes prohibited by United States law, including, but not limited to, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.
US Government Rights
The Smart Toy App and related documentation are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (i) only as Commercial Items and (ii) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
Governing Law; Arbitration
PLEASE READ THE FOLLOWING PARAGRAPH CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES WITH SMART TOY AND IT LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM SMART TOY.
You and Smart Toy agree to arbitrate any dispute arising from the Terms or relating to the Smart Toy App, except that you and Smart Toy are not required to arbitrate any dispute in which either party seeks equitable or other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets or patents. ARBITRATION PREVENTS YOU FROM SUING IN COURT OR FROM HAVING A JURY TRIAL.
You and Smart Toy agree that you will notify each other of any dispute within 30 days of when it arises, that you will attempt informal resolution prior to any demand for arbitration, that any arbitration will occur in San Francisco, California and that arbitration will be conducted confidentially by a single arbitrator in accordance with the Rules of the American Arbitration Association. You and Smart Toy also agree that the state or federal courts in San Francisco County, California have exclusive jurisdiction over any appeals of an arbitration award and over any suit between the parties not subject to arbitration. Other than class procedures and remedies discussed below, the arbitrator has the authority to grant any remedy that would otherwise be available in court. WHETHER THE DISPUTE IS HEARD IN ARBITRATION OR IN COURT, YOU AND SMART TOY WILL NOT COMMENCE AGAINST THE OTHER A CLASS ACTION, CLASS ARBITRATION OR OTHER REPRESENTATIVE ACTION OR PROCEEDING.
Notwithstanding any terms to the contrary in the Terms, the following additional terms will apply to the download of the Smart Toy App for use on the iPhone, iPod Touch or iPad:
You and Smart Toy acknowledge that the terms are solely between you and Smart Toy, and not with Apple, Inc. ("Apple"), and that Smart Toy, not Apple, is solely responsible for the Smart Toy App and the content contained within the Smart Toy App. You further acknowledge that the usage rules for the Smart Toy App are subject to any additional restrictions set forth in the Usage Rules for the Apple App Store Terms of Service as of the date you download the Smart Toy App. In the event of any conflict between the terms and conditions of the Usage Rules for the Apple App Store Terms of Service and the terms and conditions of the Terms, the terms and conditions of the Usage Rules for the Apple App Store Terms of Service will govern if they are more restrictive.
Scope of License
The license granted to you is limited to a non-transferable license to use the Smart Toy App on any iPhone, iPod Touch or iPad that you own or control as permitted by the Usage Rules set forth in the Apple App Store Terms of Service.
Maintenance and Support
Smart Toy is solely responsible for providing maintenance and support services with respect to the Smart Toy App. You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Smart Toy App.
You acknowledge and agree that Apple is not responsible for any product warranties, whether express or implied by law, with respect to the Smart Toy App. In the event of any failure of the Smart Toy App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, paid to Apple for the Smart Toy App by you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Smart Toy App. You also acknowledge and agree that to the extent that there are any applicable warranties, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any such applicable warranty, such will be the sole responsibility of Smart Toy. However, you understand and agree that in accordance with the Terms, Smart Toy has disclaimed all warranties of any kind with respect to the Smart Toy App, and therefore, there are no warranties applicable to the Smart Toy App, except those implied by law.
You and Smart Toy acknowledge and agree that as between Apple and Smart Toy, Smart Toy, not Apple, is responsible for addressing any of your claims or any third party claims relating to the Smart Toy App or your possession and/or use of the Smart Toy App, including, but not limited to: (i) product liability claims; (ii) any claim that the Smart Toy App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
Intellectual Property Rights
You and Smart Toy acknowledge and agree that, in the event of any third party claim that the Smart Toy App or your possession and use of the Smart Toy App infringes that third party's intellectual property rights, Smart Toy, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required under the Terms.
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 list of prohibited or restricted parties.