1. Conditions for Use of the App
The App is offered subject to your acceptance without modification of this Agreement. By accessing or using the 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 APP. Please check this Agreement periodically for changes. Your continued access or use of the App following any changes to the Agreement constitutes your acceptance of those changes.
The 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 App. The App may not function properly if you do not install any necessary companion applications or firmware or software updates to the 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 App. The 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 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 App and accepts this Agreement as a binding agreement on your behalf. You may not use the App if you are not at least 16 years old.
4. Use at Your Own Risk
The App is for your private, non-commercial use. Your use of the 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 and other information. The App is intended to provide a reasonable approximation of information such as pace, steps, calories burned, distance covered, and sleep. However, the 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. We do not guarantee that the information provided by the App is 100% accurate. The App will not precisely track each calorie burned or each step taken, and will not precisely report pace, distance covered or sleep duration. Do not rely on the information provided by the App for medical purposes. It is not a medical device. The App is not intended to provide any recommendations or treatment for any health conditions or physical status. The 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.
5. Passwords and Security
You must create an account to use the 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 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 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 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 App in accordance with this Agreement. The App is our valuable intellectual property and you obtain no rights to the 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 App; (b) sell, assign, sublicense, transfer, distribute, lease or grant a security interest in the App; (c) reproduce, duplicate, copy, sell, resell, or exploit for commercial purposes any portion of the App; or (d) use the 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 App, including without limitation trademarks, service marks, trade names, images, audio, text, software, designs and the “look and feel” of the App (collectively, “ App Content”) are owned or licensed by us or our affiliates and are protected by copyright, trademark, and other intellectual property laws. The App may allow you to share information regarding your use of the App (such as your progress or goals met) on social media and similar platforms. When the App provides access to 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 App Content for the sole purpose of you sharing information, on a non-commercial basis, regarding your use of the App through the sharing functions made available within the App, provided you do not alter, remove, or falsify any attributions or other proprietary designations of origin or source of the App Content. Otherwise, you may not reproduce, republish, distribute, display, perform, transmit, sell, or otherwise use any 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 have any concerns regarding the App Content, please notify us in writing at:
Kate Spade LLC
2 Park Avenue
New York, NY 10016
Attn.: General Counsel, Legal Department
Your notice must include (a) a description of the copyrighted work that you claim has been infringed; (b) a description of the location on 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 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 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 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 App or any computer software or hardware or equipment associated with the App; (b) alter, remove, or falsify any attributions or other proprietary designations of origin or source of the App or 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 App or another person’s account or information on or through the App; (e) use any robot, scraper, spider, or any other automatic device or manual process to monitor or copy the App or any App Content without our prior express written permission; (f) take any action that imposes an unreasonable or disproportionately large load on the 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 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
YOU AGREE THAT USE OF THE APP, AND ANY DEVICES YOU CONNECT TO THE APP OR MOBILE DEVICES YOU USE IN CONNECTION WITH THE APP, IS AT YOUR SOLE RISK. THE 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 APP SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE MAKE NO WARRANTY THAT THE 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 APP, JEWELRY AND WATCHES, OR DATA (INCLUDING LOSS OF DATA) THAT RESULTS FROM YOUR ACCESS OR USE OF THE APP. WE DO NOT WARRANT THAT THE 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 APP.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE MAKE NO REPRESENTATIONS OR WARRANTIES THAT THE APP IS APPROPRIATE OR AVAILABLE FOR USE IN ALL GEOGRAPHIC LOCATIONS. IF YOU ACCESS OR USE THE 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.
14. 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 APP OR THE USE, ATTEMPTED USE OR INABILITY TO USE THE 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 APP OR, IF GREATER, $100. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
16. Export Controls and Designated Persons
The App is operated from the United States and it is possible that software available at or through the 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 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 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.
You and us agree to resolve any disputes between us through binding and final arbitration instead of through court proceedings. You and us hereby waive any right to a jury trial of any Claim (defined below). All controversies, claims, counterclaims, or other disputes arising between you and us relating to the Agreement, the App or the Device (each a “Claim”) shall be submitted for binding arbitration in accordance with the Rules of the American Arbitration Association (“AAA Rules”). The arbitration will be heard and determined by a single arbitrator. The arbitrator's decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. The parties agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it (including, without limitation, any pleadings, briefs or other documents submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration or by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies.
If you demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, we will pay as much of the administrative costs and arbitrator's fees required for the arbitration as the arbitrator deems necessary to prevent the cost of the arbitration from being prohibitive. In the final award, the arbitrator may apportion the costs of arbitration and the compensation of the arbitrator among the parties in such amounts as the arbitrator deems appropriate.
This arbitration agreement does not preclude you or us from seeking action by federal, state, or local government agencies. You and us all also have the right to bring qualifying claims in small claims court. In addition, you and us retain the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments or preliminary injunctions, and any such request shall not be deemed incompatible with the Agreement, nor a waiver of the right to have disputes submitted to arbitration as provided in the Agreement.
Neither you nor us may act as a class representative or private attorney general, nor participate as a member of a class of claimants, with respect to any Claim. Claims may not be arbitrated on a class or representative basis. The arbitrator can decide only your and/or our individual Claims. The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated.
If any provision of this Section 17 is found to be invalid or unenforceable, then that specific provision shall be of no force and effect and shall be severed, but the remainder of this Section 17 shall continue in full force and effect. No waiver of any provision of this Section 17 will be effective or enforceable unless recorded in a writing signed by the party waiving such a right or requirement. Such a waiver shall not waive or affect any other portion of the Agreement. This Section 17 will survive the termination of your relationship with us.
THIS SECTION LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM, THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN AAA RULES, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF. OTHER RIGHTS THAT YOU OR US WOULD HAVE IN COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION.
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 App. We reserve the right, in our sole discretion and without consent or notice, to transfer, assign, sublicense or pledge the 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 App or terminate or restrict your access to the App.
Last Updated: April 25, 2019