TERMS OF SERVICE
LAST UPDATED: June 1, 2020
Description of the App
The Magik App is intended to be used in conjunction with the Magik toothbrush. The device attached to the toothbrush will monitor brushing activity using augmented reality. The Magik App will visualise brushing activities, record brushing data and virtually reward children through games. The App is powered by Kolibree SAS. The App may be modified by Colgate at any time, without notice.
1. License; Reservation Of Rights
1.1 Limited License to Use the Service.
Subject to End-User’s compliance with the terms and conditions of these Terms of Service, Colgate hereby grants to End-User a limited, personal, non-exclusive, non-transferable, non-sublicensable license to access and use the Service solely for the End-User’s own personal purposes, or, in the case of End-Users who are dental professionals, in their dental practice. Except for the licenses and rights expressly granted under these Terms of Service, no licenses or rights are granted by Colgate to End-User hereunder, by implication, estoppel or otherwise. All such other licenses and rights are reserved to Colgate.
1.2 Other License Restrictions.
End-User shall not (i) copy or modify the Devices or the App for any purpose; (ii) reverse-engineer, decompile, modify, translate, disassemble or discover the source code for all or any portion of the Devices or the App; (iii) distribute, disclose, market, rent, lease, lend or otherwise transfer the Service or the App to any other person or entity; or (iv) use the Service to, or permit, enable or assist a third party to, create products or services that compete with the Service, any Device or App.
1.3 Intellectual Property Rights.
Colgate retains all intellectual property rights in and to the Devices and the App and the Service, and all related documentation (including all copyrights, patents, service marks, trademarks and other intellectual property rights), including, but not limited to, any and all updates, enhancements, customizations, revisions, modifications, future releases and any other changes thereto, and all related information, material and documentation. Except for rights specifically granted to End-User in these Terms of Service, End-User hereby assigns to Colgate all other intellectual property rights it may now or hereafter possess in or to the Devices, the Service or the App and related documentation, and all derivative works and improvements thereof, and agrees to execute all documents, and take all actions, that may be necessary to confirm such rights. End-User also agrees to retain all proprietary marks, legends and patent and copyright notices that appear on the Devices, the Service or the App and any related documentation delivered to End-User by Colgate and all whole or partial copies thereof.
If you provide or otherwise make available to Colgate or its affiliates any ideas, proposals, suggestions or other materials (“Feedback”), whether related to the Service, App, Devices or otherwise, such Feedback will be deemed to be End-User Content, and you hereby acknowledge and agree that such Feedback is not confidential, and that your provision of such Feedback is gratuitous, unsolicited and without restriction, and does not place Colgate under any fiduciary or other obligation.
1.6 Necessary Rights; Waiver.
You represent and warrant that you have all rights necessary to grant the licenses granted in this Section 1, and that your End-User Content, and your provision thereof in connection with the Service or App, are complete and accurate, and are not fraudulent, tortious or otherwise in violation of any applicable law or any right of any third party. You further irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding any End-User Content that you may have under any applicable law under any legal theory.
1.7 Your Responsibilities
As a condition to accessing and using the App, you will be required to create an account using a nickname or child’s first name, a current and valid email address and your birth year. If you register by creating an account using the App, you are responsible for maintaining the strict confidentiality of your login details for the App and are responsible for any activity under your account. It is your sole responsibility to control the access to and use of your account.
2. Warranties And Limitations Of Liability.
Colgate warrants that Colgate will use commercially reasonable efforts to cause the Services to operate in substantial conformance with its published documentation. To the fullest extent permitted by applicable law, Colgate’s sole obligation and End-User’s sole remedy with respect to any failure of the Service to substantially conform to the documentation therefore is for Colgate to use commercially reasonable efforts to remedy any such failure as soon as is reasonably practicable, and if such failure is not remedied in a reasonable time, for End-User to terminate these Terms of Service pursuant to Section 4.2.
2.2 No Specific Results.
Specifically, Colgate does not represent, warrant or otherwise guarantee: (a) the reliability and suitability of the App or the Site; (b) the effectiveness, suitability or reliability of communicated information (including any data provided through the Service); (c) that the App will work without interruption or that it will be free of errors, viruses or other harmful components; (d) outcomes resulting from your use of the App; (e) that the information available on the App or through the Service is comprehensive or exhaustive, or that it addresses all relevant symptoms, medicines, and treatments for various oral diseases; or (f) any outcome with respect to health and well-being as a result of the application of this information, particularly regarding cavities and gum diseases.
2.3 No Practice of Dentistry or Medicine.
The Service and the App are not intended to be, and must not be taken to be, the practice of dentistry, medicine or other healthcare services by Colgate. Use of the Service and the App do not create a dentist/patient or provider/patient relationship with Colgate. Colgate is not recommending or endorsing any specific dental treatment, dentist or medication.
2.5 Ability to Contract; Legal Age.
The Service is offered and available to users who are 18 years of age or older. By using the Service, you represent and warrant that you are of legal age to form a binding contract with Colgate and meet all of the foregoing eligibility requirements. If you are under the age of 18 or the legal age to form a binding contract, make sure that your parent or legal guardian reads and agrees with the Terms of Service on your behalf, as your parent or legal guardian shall be fully responsible for your compliance with these Terms of Service. If you do not meet all of these requirements, you must not access or use the Service or the App. In the Terms of Service, “you”, “user” or “your” means any person or entity using the Service or the App, provided that if such person is under the age of 18, “you” and “your” also includes such person’s parent or legal guardian.
2.6 Warranty Disclaimer.
EXCEPT AS SET FORTH IN SECTION 2.1 AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, COLGATE EXCLUDES ALL CONDITIONS, REPRESENTATIONS, WARRANTIES AND STATUTORY GUARANTEES, WHETHER EXPRESS OR IMPLIED IN RELATION TO THE SERVICE OR THE APP. COLGATE DOES NOT WARRANT THAT THE SERVICE OR THE APP WILL OPERATE WITHOUT INTERRUPTION OR DELAY AND/OR BE ERROR-FREE, OR THAT ALL FAILURES OF THE SERVICE OR APP TO CONFORM TO THE DOCUMENTATION CAN OR WILL BE CORRECTED. COLGATE MAKES NO WARRANTIES OR REPRESENTATIONS AS TO THE ACCURACY OF ANY CONTENT PROCESSED BY THE SERVICE OR THE APP.
2.7 Limitations of Liability.
Nothing in these terms operates to limit or exclude liability that cannot by law be limited or excluded. Colgate acknowledges that you may be a consumer for the purposes of applicable State or Federal law in Australia or in New Zealand as applicable, with the consequence that certain guarantees, rights and remedies may conferred on you, which cannot be excluded, restricted or modified. If so, then to the maximum extent permitted by law, Colgate’s liability to you is limited at Colgate’s option to:
in the case of goods: (i) replacement of the goods or the supply of equivalent goods; (ii) repair of the goods; (iii) payment of the cost of replacing the goods or of acquiring equivalent goods; or (iv) payment of the cost of having the goods repaired; and
in the case of services: (i) resupply of the services; or (ii) payment of the cost of resupplying the services.
IN NO EVENT SHALL COLGATE OTHERWISE BE LIABLE FOR LOST PROFITS OR BUSINESS, LOSS OF GOODWILL, LOSS OF DATA, INTERRUPTION OF BUSINESS, OR FOR ANY EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF WHETHER SUCH DAMAGES ARISE UNDER ANY THEORY OF TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY OR OTHERWISE AND REGARDLESS OF WHETHER SUCH PARTY IS ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. The aggregate liability of Colgate for any and all claims arising under or in connection with these Terms of Service or its subject matter shall not exceed $500.
2.8 Essential Part of the Bargain.
The parties acknowledge that the disclaimers and limitations set forth in this Section 2 are an essential element of these Terms of Service between the parties and the parties would not have entered into these Terms of Service without such disclaimers and limitations.
3. Indemnification; Unauthorized Use
To the fullest extent permitted by applicable law, End-User hereby agrees to indemnify and hold harmless Colgate from any and all damages, costs and expenses (including, without limitation, reasonable attorneys’ fees) suffered or incurred by Colgate in connection with any claims that Colgate is required to pay to third parties to the extent such damages, settlement amounts, costs and expenses are attributable to End-User’s provision of content through the App (“End-User Content”), including any actual or alleged infringement of third party intellectual property by such End-User Content.
3.2 Notification of Unauthorized Use.
End-User shall promptly notify Colgate in writing upon its discovery of any unauthorized use or infringement of the Device, the App, or the related documentation, or Colgate's intellectual property rights with respect thereto. Colgate shall have the sole and exclusive right to bring an infringement action or proceeding against any infringing third party and, in the event that Colgate brings such an action or proceeding, End-User shall cooperate and provide full information and assistance to Colgate and its counsel in connection with any such action or proceeding.
4. Term and Termination
End-User’s access to the Service shall begin on the date End-User registers for the Service or accesses the Service and shall continue until terminated under the provisions of this Section 4.
4.2 Termination for Convenience.
Colgate may terminate End-User’s use of the Service at any time, except to the extent that Colgate’s right to terminate is prohibited by applicable law. End-User may terminate this Agreement at any time by cancelling its account for the Service and uninstalling the App.
4.3 Effect of Termination.
Upon the expiration or sooner termination of these Terms of Service, all license rights of End-User under these Terms of Service shall automatically and immediately cease and End-User shall promptly cease all uses of the Service and shall uninstall the App. Sections 2.4, 2.6, 2.7, 3, 4.3, 5 and 6 shall survive the expiration or sooner termination of these Terms of Service. In the event of expiration or termination, Colgate shall not be responsible for maintaining or returning your End-User Content, your account, or your logon and password. You should always maintain a copy of your End-User Content if any.
5.1 Export Compliance.
The Service and the App may be subject to U.S. and other national export controls and economic sanctions. Individuals or entities owned or controlled, registered in, or related to Cuba, Iran, Sudan, Syria, or North Korea are not permitted to use the App or access the Service without prior written permission from Colgate once granted by the appropriate jurisdiction. The rights and obligations of End-User shall be subject to such United States laws and regulations as shall from time to time govern the license and delivery of technology abroad by persons subject to the jurisdiction of the United States, including the Export Administration Act of 1979, as amended, any successor legislation to the Export Administration Act of 1979, and the Export Administration regulations issued by the Department of Commerce, International Trade Administration, Office of Export Administration. End-User shall certify that it shall not, directly or indirectly, export, re-export or transship the Service in such manner as to violate such laws and regulations in effect from time to time. End-User shall indemnify and hold harmless Colgate from and against any and all losses, claims and expenses incurred by Colgate as a result of the breach of End-User's obligations under this Section
5.2 Independent Contractors.
In making and performing these Terms of Service, the parties are acting and shall act as independent contractors. Neither party is, nor will be deemed to be, an agent, legal representative, joint venturer or partner of the other party for any purpose.
5.3 Force Majeure.
In the event that Colgate is unable to perform its obligations under these Terms of Service because of acts of God, strikes, equipment or transmission failure, unavailability or poor performance of the Internet, or other causes reasonably beyond its control, Colgate shall not be liable to the End-User for any damages resulting from such failure to perform or otherwise from such causes.
5.4 Governing Law.
These Terms of Service are governed by the laws in force in New South Wales, Australia and will be subject to the exclusive jurisdiction of the courts in Australia for users in Australia, or by the laws in force in New Zealand and will be subject to the exclusive jurisdiction of the courts in New Zealand for users in New Zealand.
5.5 Public Statements.
Either party may disclose the existence of these Terms of Service but may not represent to any third party any positions, statements, intentions or other actions on behalf of the other.
End-User may not assign any of its rights or privileges, or delegate any of its duties or obligations hereunder to any third party without the prior written consent of Colgate. Any purported assignment in contravention of this Section shall be null and void. Subject to the foregoing, these Terms of Service shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.
All notices and other communications hereunder shall be in writing and shall be deemed effective when delivered by hand, facsimile transmission, reputable overnight delivery service, or certified mail (return receipt requested), postage prepaid to: (a) in the case of Colgate, to the address set forth on the Colgate website to the attention of the Chief Legal Officer; and (b) in the case of End-User, to the address set forth in its account information.
5.8 Entire Agreement; Amendment.
These Terms of Service constitute the entire agreement between the parties concerning the subject matter hereof and supersedes all prior understandings and agreements between the parties, whether written or oral, regarding the subject matter hereof. These Terms of Service may not be amended, supplemented or otherwise modified by you except by an instrument in writing signed by both parties and attached hereto. Colgate may modify the Terms of Service upon providing written notice to you either via the email address registered under your account or by posting such changes through the App. Any use of the Service following any such modification constitutes acceptance of the modification. If you do not accept any modification, you must immediately cease all usage of the Service.
Failure or neglect by Colgate to enforce at any time any of these terms will not be construed or deemed to be a waiver of Colgate’s rights under these terms. A waiver by either party of a breach or violation of any provision of these Terms of Service will not constitute or be construed as a waiver of any subsequent breach or violation of that provision or as a waiver of any breach or violation of any other provision of these Terms of Service.
If any provision of the Terms of Service is held to be unenforceable, it shall be severed and the remaining provisions will remain enforceable. The severed provision will be replaced by an enforceable provision most nearly reflecting the intention of the parties.
6. Apple-Specific Terms
If you downloaded the App through the Apple App Store, you acknowledge that these terms constitute a custom end user license agreement between Colgate and you. In addition to your agreement with the foregoing terms and conditions, and notwithstanding anything to the contrary herein, the following provisions apply with respect to your use of any version of the App compatible with the iOS operating system of Apple Inc. (“Apple”). Apple is not a party to these Terms of Service and does not own and is not responsible for the App. Apple is not providing any warranty for the App except, if applicable, to refund the purchase price for it. Apple is not responsible for maintenance or other support services for the App and shall not be responsible for any other claims, losses, liabilities, damages, costs or expenses with respect to the App, including any third-party product liability claims, claims that the App fails to conform to any applicable legal or regulatory requirement, claims arising under consumer protection or similar legislation, and claims with respect to intellectual property infringement. Any inquiries or complaints relating to the use of the App, including those pertaining to intellectual property rights, must be directed to Colgate at firstname.lastname@example.org. The license you have been granted herein is limited to a non-transferable license to use the App on an Apple-branded product that runs Apple’s iOS operating system and is owned or controlled by you, or as otherwise permitted by the Usage Rules set forth in Apple’s App Store Terms of Service, except that the App may also be accessed and used by other accounts associated with you via Apple’s Family Sharing or volume purchasing programs. In addition, you must comply with the terms of any third-party agreement applicable to you when using the App, such as your wireless data service agreement. Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms of Service and, upon your acceptance of these Terms of Service, will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you as a third-party beneficiary thereof; notwithstanding the foregoing, Colgate’s right to enter into, rescind or terminate any variation, waiver or settlement under these Terms of Service is not subject to the consent of any third party.
You can contact Colgate at the contact details below during business hours: