1. Conditions for Use of the Fossil Smartwatches App
The Fossil Smartwatches App is offered subject to your acceptance without modification of this Agreement. By accessing or using the Fossil Smartwatches App, you agree to be bound by all of the terms and conditions of this Agreement as such terms and conditions may be modified by us from time to time in our sole discretion. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THE AGREEMENT WITHOUT MODIFICATION, THEN YOU MAY NOT ACCESS OR USE THE FOSSIL SMARTWATCHES APP. Please check this Agreement periodically for changes. Your continued access or use of the Fossil Smartwatches App following any changes to the Agreement constitutes your acceptance of those changes.
The Fossil Smartwatches App must be paired with a compatible watch or jewelry item, which you are responsible for obtaining, in order to use all the functionality of the Fossil Smartwatches App. The Fossil Smartwatches App may not function properly if you do not install any necessary companion applications or firmware or software updates to the Fossil Smartwatches App, your mobile device, watch or jewelry item. You are responsible for your mobile carrier’s rates and fees that may apply while you are using the Fossil Smartwatches App. The Fossil Smartwatches App may enable you to use your compatible watch or jewelry item to execute certain functions on your mobile device, such as taking a photograph. You assume all risks to your mobile device if you choose to use such features.
2. Age Restrictions
By using the Fossil Smartwatches App, you warrant that you are of legal age to form a binding agreement or, if you are at least 16 years of age, but not yet of legal age to form a binding agreement, your parent or legal guardian has consented to your use of the Fossil Smartwatches App and accepts this Agreement as a binding agreement on your behalf. You may not use the Fossil Smartwatches App if you are not at least 16 years old.
4. Use at Your Own Risk
The Fossil Smartwatches App is for your private, non-commercial use. Your use of the Fossil Smartwatches App is solely at your own risk. Without limiting any other terms of this Agreement, we do not make any representations, warranties or promises about the accuracy, reliability or effectiveness of any of the App functions or services, including without limitation, the number of steps you’ve taken, calories burned, sleep duration, heart rate and other information. The App is intended to provide a reasonable approximation of information such as pace, steps, calories burned, distance covered, sleep duration, heart rate and other information. However, the Fossil Smartwatches App relies on the accuracy of the information you input, uses algorithms that are not necessarily perfect and is subject to other factors beyond our control. For instance while a heart rate sensor may typically provide an accurate estimate of a user’s heart rate, there are inherent limitations with the technology that may cause some of the heart rate readings to be inaccurate under certain circumstances, such as the fit of the device, the physiology of the user and the type and intensity of the activity. We do not guarantee that the information provided by the Fossil Smartwatches App is 100% accurate. The Fossil Smartwatches App will not precisely track each calorie burned or each step taken, and will not precisely report pace, distance covered or sleep. Do not rely on the information provided by the Fossil Smartwatches App for medical purposes. It is not a medical device. The Fossil Smartwatches App is not intended to provide any recommendations or treatment for any health conditions or physical status. The Fossil Smartwatches App is not designed or intended for use in the diagnosis of disease or other conditions, or in the cure, mitigation, treatment or prevention of disease. You should consult a medical professional before engaging in any physical activity and for any fitness or health-related recommendations or treatment. Consult your physician before using a heart rate sensor.
5. Passwords and Security
You must create an account to use the Fossil Smartwatches App. When you create an account, you agree to submit accurate and complete information and to update such information as required from time to time. If we suspect that your information is untrue, inaccurate, out-of-date, or incomplete, we may suspend or terminate your access to the Fossil Smartwatches App or request additional information from you. You will be asked to select a personal, non-transferable password when you create an account. If you submit a request for a lost or forgotten username or password, you may be asked to provide information that we will use to confirm your identity. You are solely responsible for all activities that occur under your password-protected account and for ensuring the protection of your account information. If you delete your activity history or other information on Fossil Smartwatches App, or in some instances if you require a username or password reset, your information may be permanently deleted. You agree to notify us immediately of any unauthorized use of your password or account or any other breach of security that is known or suspected by you. You agree that we may send to you in electronic form any notices or other communications regarding the Fossil Smartwatches App and such electronic form will satisfy any legal requirements with respect to communications or notice.
6. Limited License
We hereby grant you a limited, personal, non-exclusive, non-transferable, non-assignable, non-sublicensable, and revocable right to install and use the Fossil Smartwatches App in accordance with this Agreement. The Fossil Smartwatches App is our valuable intellectual property and you obtain no rights to the Fossil Smartwatches App except to use it in accordance with this Agreement. You must not: (a) copy, redistribute, publish, reverse engineer, decompile, disassemble, modify, translate or make any attempt to access or use the source code of the Fossil Smartwatches App; (b) sell, assign, sublicense, transfer, distribute, lease or grant a security interest in the Fossil Smartwatches App; (c) reproduce, duplicate, copy, sell, resell, or exploit for commercial purposes any portion of the Fossil Smartwatches App; or (d) use the Fossil Smartwatches App in a manner prohibited by applicable laws or this Agreement.
7. Copyright and Other Intellectual Property
All content and other materials available at or through the Fossil Smartwatches App, including without limitation trademarks, service marks, trade names, images, audio, text, software, designs and the “look and feel” of the Fossil Smartwatches App (collectively, “Fossil Smartwatches App Content”) are owned or licensed by us or our affiliates and are protected by copyright, trademark, and other intellectual property laws. The Fossil Smartwatches App may allow you to share information regarding your use of the Fossil Smartwatches App (such as your progress or goals met) on social media and similar platforms. When the Fossil Smartwatches App provides access to Fossil Smartwatches App Content that you may share, we grant you a limited, personal, non-exclusive, non-transferable, non-assignable, non-sublicensable and revocable license to that specific and limited Fossil Smartwatches App Content for the sole purpose of you sharing information, on a non-commercial basis, regarding your use of the Fossil Smartwatches App through the sharing functions made available within the Fossil Smartwatches App, provided you do not alter, remove, or falsify any attributions or other proprietary designations of origin or source of the Fossil Smartwatches App Content. Otherwise, you may not reproduce, republish, distribute, display, perform, transmit, sell, or otherwise use any Fossil Smartwatches App Content without our express written permission. All rights not expressly granted to you in this Agreement are reserved by us and/or our licensors.
8. Copyright Infringement
If you believe that any Fossil Smartwatches App Content infringes upon your copyright, please notify us in writing at:
General Counsel – Intellectual Property
901 S. Central Expressway
Richardson, TX 75080
Attn: DMCA Copyright Agent
VIA EMAIL: firstname.lastname@example.org
Your notice must include (a) a description of the copyrighted work that you claim has been infringed; (b) a description of the location on Fossil Smartwatches App where the allegedly infringing content is located; (c) your full name, postal address, telephone number, and email address; (d) a statement that you have a good faith belief that the use of the allegedly infringing material on the Fossil Smartwatches App is not authorized; (e) your physical or electronic signature; and (f) a statement that you are the copyright owner or an authorized agent of the copyright owner.
We are pleased to hear from our customers and welcome feedback on the Fossil Smartwatches App. However, if you send us any ideas, suggestions, drawings, graphics, innovations, concepts, recommendations, or similar materials (“Submissions”) you agree that the Submissions are not confidential. You hereby assign such Submissions to us without compensation (or the expectation of compensation) and agree that we may disclose, reproduce, republish, modify, distribute, display, perform, transmit, sell, or otherwise use your Submissions for commercial or non-commercial purposes with no compensation to you. For any Submissions that cannot be legally assigned to us, you hereby grant us an unrestricted, perpetual, royalty-free, irrevocable and worldwide license to reproduce, republish, modify, distribute, display, perform, transmit, sell, or otherwise use your Submissions for commercial or non-commercial purposes with no compensation to you.
10. Prohibited Conduct
You agree to abide by all applicable laws and not to (a) upload, transmit, post, email, or otherwise make available to the Fossil Smartwatches App any material in any format that (i) is false, inaccurate, misleading, fraudulent, unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, invasive of another's privacy, or libelous; (ii) infringes any third party's intellectual property or other proprietary right or rights of publicity or privacy; or (iii) contains viruses, worms, Trojan horses, time bombs, corrupted files, or any other software or programs designed to interrupt, interfere, intercept, expropriate, destroy or limit the functionality of the Fossil Smartwatches App or any computer software or hardware or equipment associated with the Fossil Smartwatches App; (b) alter, remove, or falsify any attributions or other proprietary designations of origin or source of the Fossil Smartwatches App or Fossil Smartwatches App Content; (c) impersonate any person or entity, including, but not limited to, our employees or officers, or falsely state or otherwise misrepresent your affiliation with any person or entity; (d) attempt, through any means, to gain unauthorized access to the Fossil Smartwatches App or another person’s account or information on or through the Fossil Smartwatches App; (e) use any robot, scraper, spider, or any other automatic device or manual process to monitor or copy the Fossil Smartwatches App or any Fossil Smartwatches App Content without our prior express written permission; (f) take any action that imposes an unreasonable or disproportionately large load on the Fossil Smartwatches App; (g) take any action that creates liability for us or causes us to lose any of the services of our business partners, vendors or suppliers; or (h) take any action that would cause us to violate any applicable law, statute, ordinance or regulation, or that violates the Agreement.
11. Promotional Information
We may from time to time make information available on the Fossil Smartwatches App regarding certain programs, offers, or promotions (“Promotions”). All Promotions are subject to the specific terms, conditions, and restrictions disclosed in connection with such Promotions and are subject to being withdrawn or changed without prior notice. We are not responsible for any typographical or other errors or omissions regarding prices, availability, or other information in connection with Promotions.
12. Other Applications and Websites
13. Fitness Challenge
For users who choose to use the fitness challenge functionality (“Fitness Challenge”) in the Fossil Smartwatches App, the following additional terms shall apply.
You grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and display any photographs, graphics, text, messages or other materials you make available in connection with the use of the Fitness Challenge (“Content”) and any name, username, or likeness that you post on or in connection with the Fitness Challenge in all media formats and channels now known or later developed without compensation to you. This license ends when you delete your Content or your Fitness Challenge Account.
You understand that you, and not Fossil, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available via the Fitness Challenge. Fossil does not proactively or routinely screen or monitor the Content posted to the Fitness Challenge by others and, as such, does not guarantee the accuracy, integrity, or quality of such Content. Fossil may, in its sole discretion, screen, monitor, refuse or remove any Content, or remove any Content that violates this Agreement or is otherwise objectionable. You understand that by using the Fitness Challenge, you may be exposed to Content that is offensive, indecent or objectionable. Under no circumstances will Fossil be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content made available via the Fitness Challenge. You agree to bear all risks associated with the use of the Fitness Challenge, including any reliance on the accuracy, completeness, or usefulness of Content.
The Fitness Challenge should not be used to engage in any of the following prohibited activities:
(a) publishing, transmitting, distributing or storing content, material, information or data that: (1) is illegal, obscene, defamatory, threatening, harassing, abusive, offensive, or hateful or that advocates violence; (2) is harmful to or interferes with the Fitness Challenge or any third party’s networks, equipment, applications, services or websites; (3) infringes, dilutes, misappropriates or otherwise violates any privacy, intellectual property, publicity or other personal rights including, without limitation, copyrights, patents, trademarks, trade secrets or other proprietary information (including unauthorized use of domain names); or (4) is fraudulent or contains false, deceptive or misleading statements, claims or representations.
(b) committing any act that may be harmful to minors;
(c) distributing, or disclosing any part of the Fitness Challenge in any medium, including without limitation by any automated or non-automated “scraping”;
(d) collecting or harvesting any information relating to an identified or identifiable individual, including account names and information about users of the Fitness Challenge, from the Fitness Challenge;
(e) using the Fitness Challenge for any inappropriate commercial solicitation purposes;
(f) accessing any content on the Fitness Challenge through any technology or means other than those provided or authorized by Fossil;
(g) submitting to the Fitness Challenge or to Fossil any personally identifiable information, except as necessary for the establishment and operation of your account;
(h) submitting to the Fitness Challenge or to Fossil any information that may be protected from disclosure by applicable law;
(i) bypassing the measures we may use to prevent or restrict access to the Fitness Challenge, including, without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Fitness Challenge of the content therein;
(j) violating any applicable law, statute, ordinance or regulation, or encouraging any conduct that could constitute a criminal offense or give rise to civil liability;
You represent and warrant that: (i) you are authorized to create your account; (ii) you own the Content posted by you on or through the Fitness Challenge or otherwise have the right to grant the rights and licenses set forth in this Agreement; (iii) the posting and use of your Content on or through the Fitness Challenge does not and will not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy and data protection rights, publicity rights, copyrights, trademark and/or other intellectual property rights; and (iv) you agree to pay for all royalties, fees and any other monies owned by reason of Content you post through the Services.
c. Interactions with users
The Fitness Challenge is a venue to connect users in a virtual information platform. As a neutral facilitator, Fossil is not directly involved in the actual interactions between users of the Fitness Challenge. As a result, Fossil has no control over the truth, accuracy, quality, legality, or safety of postings made by users of the Fitness Challenge. Fossil shall have no responsibility to confirm the identity of users. Fossil shall also have no responsibility to confirm or verify the qualifications, background, or abilities of users of the Fitness Challenge. You shall at all times exercise common sense and good judgement when dealing with any user of the Fitness Challenge. You are entirely responsible for any information you choose to share with other users of the Fitness Challenge.
YOU AGREE THAT USE OF THE FOSSIL SMARTWATCHES APP, AND ANY DEVICES YOU CONNECT TO THE FOSSIL SMARTWATCHES APP OR MOBILE DEVICES YOU USE IN CONNECTION WITH THE FOSSIL SMARTWATCHES APP, IS AT YOUR SOLE RISK. THE FOSSIL SMARTWATCHES APP IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, TITLE, QUIET ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR AT OR THROUGH THE FOSSIL SMARTWATCHES APP SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE MAKE NO WARRANTY THAT THE Fossil Smartwatches APP WILL MEET YOUR REQUIREMENTS, BE ACCURATE, COMPLETE, CURRENT OR TIMELY, UNINTERRUPTED, SECURE, OR ERROR FREE.
YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICES, INCLUDING MOBILE DEVICES YOU USE IN CONNECTION WITH THE FOSSIL SMARTWATCHES APP, JEWELRY AND WATCHES, OR DATA (INCLUDING LOSS OF DATA) THAT RESULTS FROM YOUR ACCESS OR USE OF THE FOSSIL SMARTWATCHES APP. WE DO NOT WARRANT THAT THE FOSSIL SMARTWATCHES APP IS FREE OF DEFECTS, VIRUSES, MALFUNCTIONS, OR HARMFUL COMPONENTS THAT COULD DAMAGE OR ALLOW UNAUTHORIZED ACCESS TO YOUR DEVICE OR DATA.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE ARE NOT RESPONSIBLE FOR ANY LOSS OR DAMAGE CAUSED, OR ALLEGED TO HAVE BEEN CAUSED, DIRECTLY OR INDIRECTLY, BY THE INFORMATION OR IDEAS CONTAINED, SUGGESTED OR REFERENCED AT OR THROUGH THE FOSSIL SMARTWATCHES APP.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE MAKE NO REPRESENTATIONS OR WARRANTIES THAT THE FOSSIL SMARTWATCHES APP IS APPROPRIATE OR AVAILABLE FOR USE IN ALL GEOGRAPHIC LOCATIONS. IF YOU ACCESS OR USE THE FOSSIL SMARTWATCHES APP FROM OUTSIDE THE UNITED STATES OF AMERICA, YOU ARE SOLELY RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS, INCLUDING WITHOUT LIMITATION, EXPORT AND IMPORT REGULATIONS OF OTHER COUNTRIES.
15. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER WE NOR OUR AFFILIATES OR OUR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, OR REPRESENTATIVES (OR THEIR RESPECTIVE SUCCESSORS AND ASSIGNS) SHALL BE LIABLE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RESULTING FROM THE FOSSIL SMARTWATCHES APP OR THE USE, ATTEMPTED USE OR INABILITY TO USE THE FOSSIL SMARTWATCHES APP, INCLUDING LOST REVENUE, LOST DATA, DAMAGED DEVICES OR OTHER INTANGIBLES, EVEN IF WE HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, YOU AGREE THAT OUR TOTAL LIABILITY FOR DAMAGES, REGARDLESS OF THE FORM OF ACTION, SHALL NOT EXCEED THE ACTUAL TOTAL AMOUNT, IF ANY, RECEIVED BY US FROM YOU TO ACCESS THE Fossil Smartwatches APP OR, IF GREATER, $100. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. .
17. Export Controls and Designated Persons
The Fossil Smartwatches App is operated from the United States and it is possible that software available at or through the Fossil Smartwatches App may be subject to United States export controls administered by the United States Commerce Department or sanctions programs administered by the United States Treasury Department. No software available at or through the Fossil Smartwatches App may be downloaded or otherwise exported or re-exported (a) into (or to a national or resident of) any country subject to a United States or United Nation embargo or sanction; (b) to anyone on the United States Treasury Department's list of Specially Designated Nationals and Blocked Persons; (c) to anyone on the United States Commerce Department’s Denied Persons List or Entity List; or (d) to anyone subject to the same or similar restrictions as the foregoing. By downloading or using any software available at or through the Fossil Smartwatches App, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any of the above lists or subject to such restrictions.
Any dispute, claim, or controversy arising out of or relating to this Agreement, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by individual arbitration in Dallas, Texas before a single neutral arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. Any appeal shall be heard and decided by a panel of three neutral arbitrators. All arbitrators shall be retired judges or justices of any Texas state or federal court, and shall in their substantive rulings (as opposed to procedural or discovery-related rulings that are otherwise governed by the JAMS Comprehensive Arbitration Rules and Procedures), apply the laws of the State of Texas without giving effect to any choice or conflict of law provision or rules that would cause the application of the laws of any jurisdiction other than the State of Texas. The award of the arbitrator(s) shall be binding and final on all parties. The arbitrator(s) shall award to the prevailing party, if any, the costs and attorneys' fees reasonably incurred by the prevailing party in connection with the arbitration. If the arbitrator(s) determine a party to be the prevailing party under circumstances where the prevailing party won on some but not all of the claims and counterclaims, the arbitrator(s) may award the prevailing party an appropriate percentage of the costs and attorneys' fees reasonably incurred by the prevailing party in connection with the arbitration. Judgment on the award rendered may be entered in any court having jurisdiction. The arbitrators may not award any punitive, incidental, indirect, special, or consequential damages, including, but not limited to, damages for lost profits.
Any dispute resolution proceeding arising out of or relating to this Agreement, including arbitration, will be conducted only on an individual basis and not in a class or representative action on behalf of others. There is no right for any dispute hereunder to be brought or heard as a class arbitration, class action, or private attorney general action or for the consolidation of arbitrations. Notwithstanding any other provision in this Agreement, and without waiving any party’s right to appeal, if this waiver of class action is held invalid or unenforceable, then the entire Arbitration clause in Section 17 (with the exception of this sentence) shall not apply.
If any provision of this Agreement is found to be invalid or unenforceable, such provision shall be severed from the remainder of the Agreement, which shall remain in full force and effect. No waiver of any breach or default of the Agreement shall be deemed to be a waiver of any preceding or subsequent breach or default. Our failure to insist upon or enforce strict performance of any terms in this Agreement shall not be considered a waiver of those terms or any of our rights. You may be required to agree to additional terms and conditions to access particular sections or functions of the Fossil Smartwatches App. We reserve the right, in our sole discretion and without consent or notice, to transfer, assign, sublicense or pledge the Fossil Smartwatches App or this Agreement, in whole or in part, to any person or entity. You may not assign, sublicense or otherwise transfer in any manner any of your rights or obligations under the Agreement. The section headings used in the Agreement are for convenience only.
We may at any time, without notice and for any reason in our sole discretion, modify or discontinue the Fossil Smartwatches App or terminate or restrict your access to the Fossil Smartwatches App.
July 25, 2020
© 2020 Fossil Group, Inc.