Last Revised: 02/28/17
Welcome to the Toymail application. We have created an interactive application that is designed to entertain families using conversation and characters (the "Toymail app").
THESE APPLICATION TERMS (THE "TERMS") APPLY TO YOUR (AND YOUR CHILDREN'S) USE OF THE Toymail APP PROVIDED BY Toymail, Inc. ("Toymail").
PLEASE READ THE TERMS AND CONDITIONS OF THE TERMS CAREFULLY.
BY DOWNLOADING THE Toymail APP, USING THE Toymail APP OR CLICKING/CHECKING ON THE ACCEPT/AGREE BOX/BUTTON, 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, Toymail IS UNWILLING TO GRANT YOU (OR YOUR CHILDREN) THE RIGHT TO USE THE Toymail APP.
THE TERMS CONSTITUTE AN ENFORCEABLE AGREEMENT BY AND BETWEEN YOU AND Toymail.
FOR PURPOSES OF THE TERMS, "Toymail", "US", "WE" OR "OUR" MEANS AND INCLUDES Toymail AND ITS INVESTORS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES AND ASSIGNS. "YOU" MEANS EACH PERSON WHO ACCESSES OR USES THE Toymail APP (INCLUDING, BUT NOT LIMITED TO YOUR CHILDREN), WHETHER OR NOT SUCH PERSON PERSONALLY INSTALLED THE Toymail APP. FURTHER, "YOUR CHILDREN" OR "YOUR CHILD" REFERS TO YOUR CHILD, YOUR CHILDREN OR A CHILD OR CHILDREN UNDER YOUR GUARDIANSHIP OR SUPERVISION.Privacy
By creating an account for the Toymail App, you represent and warrant that you are 13 years of age or older. If you are under 13 years of age, you are expected to use a parent's user account. In consideration of your use of the Toymail App, you agree to: (i) provide accurate, current and complete information about you as may be prompted by any registration forms via the Toymail 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 Toymail, 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 Toymail. You are responsible for safeguarding the password that you use to access the Toymail App. When you register for the Toymail 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 Toymail App that you use for other applications or services.License
Subject to the terms, conditions and limitations set forth in the Terms, Toymail grants you a nonexclusive, non-transferable and revocable license to use the Toymail App on any mobile device that you own or control. The terms of the license will also govern any upgrades provided by Toymail that replace and/or supplement the original Toymail App, unless such upgrade is accompanied by a separate license, in which case the terms of that license will govern.Restrictions
You agree not to do, or authorize or permit any third party to do, any of the following: (i) copy, reproduce or distribute the Toymail App; (ii) make the Toymail 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 Toymail App; (iv) modify, port, translate, or create derivative works of the Toymail App; (v) decompile, disassemble, reverse engineer or otherwise attempt to derive, reconstruct, identify or discover any source code, underlying ideas, or algorithms of the Toymail 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 Toymail App; (vii) use the Toymail App for commercial use; (viii) use the Toymail 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 Toymail 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 Toymail App. If you violate any of the restrictions set forth in the Terms, your right to use the Toymail App will immediately cease and you may have infringed the copyright and other rights of Toymail, which may subject you to prosecution and damages. Toymail reserves all rights not expressly granted in the Terms, and no licenses are granted by Toymail 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 acknowledge and agree that when users interact with Toymail, Toymail may capture audio recordings (the "Recordings") of such interactions, and that Toymail and its licensors and contractors may use, transcribe and store such Recordings and the speech data contained therein (the "Speech Data"), including your voice and likeness as captured therein, to provide and maintain the Toymail App, to develop, tune, test, enhance or improve the technology and algorithms, and to develop models for research and development purposes. Toymail and/or its licensors will not use the information contained in any Speech Data for any purpose except as set forth above. Because audio files constitute personal information under the Children's Online Privacy Protection Act, parents are expected to consent to the use of the Toymail App by their children who are under 13 before Toymail will save or store any Recordings. Therefore, the foregoing does not apply to children under 13 until such consent is obtained.Recordings
The Toymail App will allow you, the account holder, to share certain Recordings that you (and/or your children) create using the Toymail App with others by sending a message, or by sharing on your website or third party websites (including Facebook, Twitter and YouTube (each, a "Third Party Site")). Please remember that when you share the Recordings with a Third Party Site, such Recordings may become subject to third party website policies and rules.
You acknowledge and agree that you (on behalf of yourself and your child) release and discharge Toymail, its administrators, directors, officers, employees, agents, sponsors and advertisers (collectively, "Toymail Parties") from all liability to you and your child for any claims that the use of the Recordings by Toymail (or any party on its behalf) violates any of your rights, including intellectual property rights or rights of publicity or privacy. Further, you (on behalf of yourself and your child) convent not to sue any Toymail Parties with respect to any Recordings. You also acknowledge and agree that neither you nor your child will be entitled to any additional compensation for the use of any of the Recordings by Toymail or a party on its behalf.Third Party Components
The Toymail App utilizes technology provided by third parties (including, but not limited to, Electric Imp. By using the Toymail App you agree to the terms and conditions set forth at http://electricimp.com/termsFeedback
Any suggestions, comments or other feedback provided by you or your children to us with respect to the Toymail 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.Conduct
You agree that you are solely responsible for your conduct (and the conduct of anyone using your account) with respect to the Toymail App, and you agree that you will not do any of the following in connection with the Toymail App:
Toymail's name, Toymail's logos and any other Toymail product, service name or slogan included in the Toymail App are trademarks of Toymail and may not be copied, imitated or used, in whole or in part, without the prior written permission of Toymail. In addition, the look and feel of the Toymail App, including all custom graphics, button icons and scripts are the service marks, trademarks and/or trade dress of Toymail 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 Toymail 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 Toymail and its licensors with such company; or (ii) an endorsement or approval by such company of Toymail and its licensors and its products or services.Ownership
Except for the license expressly stated in the Terms, you are not granted any rights in or to the Toymail App by implication, estoppel, or other legal theory, and all rights in and to the Toymail App not expressly granted in the Terms are hereby reserved and retained by Toymail. 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 "Toymail Material") is owned by Toymail or is used with permission. This Toymail Material is protected in all forms, media and technologies now known or hereinafter developed.Modification of Terms
Toymail reserves the right to change or modify any of the terms and conditions contained in the Terms, or any policy or guideline of the Toymail App, at any time and in its sole discretion by posting the changes/modifications via the Toymail App. Additionally, notice may be provided by sending an email to you or by such other form of notice as determined by Toymail. Changes/modifications will only become effective at the end of the 30 day period commencing upon the posting of the changes/modifications via the Toymail App ("Notice Period"). If you disagree with any changes/modifications, please stop using the Toymail App within the Notice Period. Your use of the Toymail 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 Toymail 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 Toymail App.Suspension and Termination
Toymail may suspend and/or terminate your rights with respect to the Toymail App for any reason or for no reason at all and with or without notice at Toymail's sole discretion. Suspension and/or termination may include restricting access to and use of the Toymail App. If your rights with respect to the Toymail App are suspended and/or terminated, you agree to make no further use of the Toymail App during suspension or after termination. Toymail 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 Toymail App during suspension or after termination, and you agree that Toymail 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).Disclaimers
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE Toymail APP IS AT YOUR SOLE RISK. THE Toymail APP IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. Toymail DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE TERMS, THE Toymail APP, THE Toymail MATERIAL, ANY Toymail 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 Toymail 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. Toymail DOES NOT WARRANT THAT: (A) THE FUNCTIONS CONTAINED IN THE Toymail APP WILL BE ACCURATE OR MEET YOUR REQUIREMENTS; (B) THE OPERATION OF THE Toymail APP WILL BE UNINTERRUPTED OR ERROR-FREE; OR (C) ANY DEFECTS IN THE Toymail APP WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION, GUIDELINES OR ADVICE GIVEN BY Toymail OR ITS AUTHORIZED REPRESENTATIVE WILL CREATE A WARRANTY.Indemnification
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 Toymail 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 Toymail APP, THE Toymail MATERIAL, ANY Toymail 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 Toymail 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.App Store
You acknowledge and agree that the availability of the Toymail App is dependent on the third party from which you received the Toymail App, e.g., the Apple iPhone App Store ("App Store"). You acknowledge and agree that the Terms are between you and Toymail and not with the App Store. Toymail, not the App Store, is solely responsible for the Toymail 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 Toymail App (if any). You agree to comply with, and your license to use the Toymail App is conditioned upon your compliance with, all applicable third party terms of agreement when using the Toymail App.Notice of Availability of Filtering Software
Pursuant to the Communications Decency Act, you are hereby informed by Toymail that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available at Get Net Wise, www.getnetwise.org, and Safety.com, www.safety.com, or in the following Web directories: Internet Blocking and Filtering Software or Filtered Access.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 Toymail App
Toymail reserves the right in its sole discretion to review, improve, modify or discontinue, temporarily or permanently, the Toymail App and/or any features, information, materials or content on the Toymail App with or without notice to you. You agree that Toymail will not be liable to you or any third party for any modification or discontinuance of the Toymail App or any portion thereof.Copyright Complaints
In accordance with the Digital Millennium Copyright Act of 1998 ("DMCA"), the text of which may be found on the U.S. Copyright Office website at http://www.copyright.gov/legislation/dmca.pdf, and other applicable law, Toymail has adopted a policy of terminating, in appropriate circumstances and at Toymail's sole discretion, account holders who are deemed to be repeat infringers. Toymail may also, at its sole discretion, limit access to the Toymail App and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement. Toymail will respond to claims of copyright infringement committed using the Toymail App that are reported to Toymail's Designated Copyright Agent, identified in the sample notice below.
If you knowingly misrepresent in your notification that the material or activity is infringing, you will be liable for any damages, including costs and attorneys' fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
If you are a copyright owner, or are authorized to act on behalf of one, or are authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through the Toymail App by completing the following DMCA Notice of Alleged Infringement and delivering it to Toymail's Designated Copyright Agent. Upon receipt of the Notice as described below, Toymail will take whatever action, in its sole discretion, it deems appropriate, including removal of the challenged material from the Toymail App.DMCA Notice of Alleged Infringement ("Notice"):
Identify the copyrighted work that you claim has been infringed, or if multiple copyrighted works are covered by this Notice you may provide a representative list of the copyrighted works that you claim have been infringed.
Identify the material that you claim is infringing (or the subject of infringing activity) and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material, including at a minimum, if applicable, the URL of the link shown on the Toymail App where such material may be found.
Provide your mailing address, telephone number, and, if available, email address.
Include both of the following statements in the body of the Notice: (i) "I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use)"; and (ii) "I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed."
Provide your full legal name and your electronic or physical signature.
Deliver this Notice, with all items completed, to Toymail's Designated Copyright Agent:
115 E 23rd Street, 3rd Fl.
New York, NY 10010
You may not use or otherwise export or re-export the Toymail App except as authorized by United States law and the laws of the jurisdiction in which the Toymail 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 Toymail 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 Toymail 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 Toymail 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 Toymail AND IT LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM Toymail.
You and Toymail agree to arbitrate any dispute arising from the Terms or relating to the Toymail App, except that you and Toymail 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 Toymail 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 Michigan and that arbitration will be conducted confidentially by a single arbitrator in accordance with the Rules of the American Arbitration Association. You and Toymail also agree that the state or federal courts in Michigan 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 Toymail 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 Toymail App for use on the iPhone, iPod Touch or iPad:Acknowledgement
You and Toymail acknowledge that the terms are solely between you and Toymail, and not with Apple, Inc. ("Apple"), and that Toymail, not Apple, is solely responsible for the Toymail App and the content contained within the Toymail App. You further acknowledge that the usage rules for the Toymail 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 Toymail 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 Toymail 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
Toymail is solely responsible for providing maintenance and support services with respect to the Toymail App. You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Toymail App.Warranty
You acknowledge and agree that Apple is not responsible for any product warranties, whether express or implied by law, with respect to the Toymail App. In the event of any failure of the Toymail 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 Toymail App by you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Toymail 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 Toymail. However, you understand and agree that in accordance with the Terms, Toymail has disclaimed all warranties of any kind with respect to the Toymail App, and therefore, there are no warranties applicable to the Toymail App, except those implied by law.Product Claims
You and Toymail acknowledge and agree that as between Apple and Toymail, Toymail, not Apple, is responsible for addressing any of your claims or any third party claims relating to the Toymail App or your possession and/or use of the Toymail App, including, but not limited to: (i) product liability claims; (ii) any claim that the Toymail 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 Toymail acknowledge and agree that, in the event of any third party claim that the Toymail App or your possession and use of the Toymail App infringes that third party's intellectual property rights, Toymail, 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.Legal Compliance
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.Developer Name and Address
Any end-user questions, complaints or claims with respect to the Toymail App should be directed to:
115 E 23rd Street, 3rd Fl.
New York, NY 10010
The parties acknowledge and agree that Apple, and Apple's subsidiaries, are third party beneficiaries of the Terms, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce any of the terms and conditions of the Terms against you as a third party beneficiary thereof.Refer-a-Friend Program Terms & Conditions