Last Updated: September 12, 2018
These Terms of Service (these "Terms of Service") set forth the terms and conditions upon which Colgate Palmolive Company ("Colgate") offers you, our third party end-users (each, an "End-User"), access to Colgate’s proprietary Colgate Connect E1 Smart Toothbrush (the "Service") through the Colgate mobile application (the "App"), which is powered by Kolibree SAS (“Kolibree”). By clicking “I Agree” or by accessing the Service or using the App, you agree to be bound by these Terms. If you do not agree to these Terms of Service, do not access or use the Services. This is a legally enforceable contract.
FOR END-USERS IN THE U.S.: THESE TERMS OF SERVICE CONTAIN A MANDATORY ARBITRATION PROVISION THAT, AS FURTHER SET FORTH BELOW, REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR ANY OTHER COURT PROCEEDINGS OR CLASS ACTIONS OF ANY KIND.
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, license to use the App to access the Service solely for the End-User’s own personal purposes, or, in the case of 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 Service or App for any purpose; (ii) reverse-engineer, decompile, modify, translate, disassemble or discover the source code for all or any portion of the Service or the App; (iii) distribute, disclose, market, rent, lease or otherwise transfer the Service or the App to any other person or entity; or (iv) use the App or the Service or permit, enable or assist a third party to create competing products or services.
1.3 Intellectual Property Rights. Colgate retains all intellectual property rights in and to the Service and the App and all related documentation interest (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 provided in these Terms of Service, End-User hereby assigns to Colgate all other intellectual property rights it may now or hereafter possess in 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 Service or the App and any related documentation delivered to End-User by Colgate and all whole or partial copies thereof.
2.1 Warranties. Colgate warrants that Colgate will use commercially reasonable efforts to cause the Service and the App 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 or the App 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; (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 and the App are offered and available to users who are 18 years of age or older. By using the Services, 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 DISCLAIMS ANY AND ALL WARRANTIES RELATING TO THE SERVICE OR ANY OTHER MATTER COVERED BY THESE TERMS OF SERVICE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. COLGATE DOES NOT WARRANT THAT THE SERVICE OR 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. EXCEPT AND SOLELY TO THE EXTENT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL COLGATE BE LIABLE FOR LOST PROFITS OR BUSINESS, LOSS OF GOODWILL, LOSS OF DATA, INTERRUPTION OF BUSINESS, OR FOR ANY EXEMPLARY, PUNITIVE, SPECIAL, 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.
Certain laws do not allow limitations on implied warranties or the exclusion or limitation of certain damages. Solely to the extent that these laws apply to you, some or all of the above disclaimers, exclusions, or limitations may not apply to you, and you may have additional rights.
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.
3.1 Indemnification. 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 Service or 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 Service, 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.
4.1 Term. End-User’s access to the App and Services shall begin on the date End-User registers for the service and shall continue until terminated earlier under the provisions of this Article 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 Services 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 2.6, 2.7, 3, 4.3, 5 and 6 shall survive the expiration or sooner termination of these Terms of Service.
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 of the State of New York, without regard to its choice of law provisions. The courts of general jurisdiction located within New York, New York, will have exclusive jurisdiction over any and all disputes arising out of, relating to or concerning these Terms Service or in which these Terms of Service are a material fact.
5.5 Dispute Resolution. With respect to End Users in the U.S., any controversy or claim between the parties or arising out of these Terms of Service or any use of the Service or the App shall be determined by one disinterested arbitrator in binding arbitration pursuant to the Commercial Arbitration Rules and the Supplementary Procedures for Online Arbitration of the American Arbitration Association (the “AAA”). The arbitrator shall be experienced in agreements for information technology services, either as an attorney or as an information technology professional. If the parties fail to appoint an arbitrator within forty-five (45) days of the institution of the arbitration, the AAA shall select the arbitrator promptly thereafter. Any requests for accelerated, emergency or preliminary relief shall be submitted pursuant to the AAA’s Optional Rules for Emergency Measures of Protection. If any such requests are made before an arbitration panel is empaneled, then the AAA shall appoint one disinterested arbitrator as an arbitration panel to immediately hear and decide such request. The arbitration panel shall have the right to grant interim awards. Testimony shall be permitted by telephone, video conference and other forms of real-time telecommunications. If the arbitrator requires in-person hearings, the hearings shall be held in New York, New York. The arbitral award will be final and binding, and may be entered and enforced in any court of competent jurisdiction.
5.6 Waiver of Jury Trial and Class Actions. FOR INDIVIDUALS IN THE U.S., BY ENTERING INTO THESE TERMS OF SERVICE, YOU AND COLGATE ACKNOWLEDGE AND AGREE TO WAIVE CERTAIN RIGHTS TO LITIGATE DISPUTES IN COURT, TO RECEIVE A JURY TRIAL OR TO PARTICIPATE AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY CLAIM ON A CLASS OR CONSOLIDATED BASIS OR IN A REPRESENTATIVE CAPACITY. YOU AND COLGATE BOTH AGREE THAT ANY ARBITRATION WILL BE CONDUCTED ON AN INDIVIDUAL BASIS AND NOT A CONSOLIDATED, CLASS-WIDE OR REPRESENTATIVE BASIS AND THE ARBITRATOR SHALL HAVE NO AUTHORITY TO PROCEED WITH AN ARBITRATION ON A CLASS OR REPRESENTATIVE BASIS. THE ARBITRATOR MAY AWARD INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIM. IF FOR ANY REASON THE ARBITRATION CLAUSE SET FORTH IN THESE TERMS OF SERVICE IS DEEMED INAPPLICABLE OR INVALID, OR TO THE EXTENT THE ARBITRATION CLAUSE ALLOWS FOR LITIGATION OF DISPUTES IN COURT, YOU AND COLGATE BOTH WAIVE, TO THE FULLEST EXTENT ALLOWED BY LAW, ANY RIGHT TO PURSUE OR TO PARTICIPATE AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY CLAIM ON A CLASS OR CONSOLIDATED BASIS OR IN A REPRESENTATIVE CAPACITY.
5.7 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.
5.8 Assignment. 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.
5.9 Notices. 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.
5.10 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 e-mail registered under your account or by posting such changes through the App or through Colgate’s website. Any use of the App or the Service following any such modification constitutes an acceptance of the modification. If you do not accept any modification, you must immediately cease all usage of the App.
5.11 Waivers. 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.
5.12 Severability. 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.
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 email@example.com. 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 thes 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.