My Mattel Ideas Submission Agreement

BACKGROUND

If You¹ want to voluntarily submit an idea through the “My Mattel Ideas” website (“MMI Website”), then carefully read this Submission Agreement (“Submission Agreement”). This document affects Your legal rights and is a legally enforceable contract between You and Mattel, Inc. If You elect to check the MMI Website’s “check box”² and click the “Accept” button,³ You will acknowledge Your complete understanding of and voluntary agreement to all of this Submission Agreement’s provisions. If You don’t understand or if You disagree with anything in this Submission Agreement, then don’t check the MMI Website’s “check box” or click the MMI Website’s “Accept” button, and don’t use the MMI Website.

AGREEMENT

You and Mattel⁴ agree to the following:

1.Scope.This Submission Agreement applies to Your use of the MMI Website and everything that You disclose to Mattel through the MMI Website or any method or means.

2.Consideration and Acknowledgement. In consideration for Your agreement to be bound to this Submission Agreement, Mattel will allow You to share Your ideas with Mattel, which may but likely will not lead to a further agreement to develop and sell products incorporating your ideas. Specifically, Mattel wouldn’t allow you to share your ideas: if You didn’t agree to this Submission Agreement; if this Submission Agreement wasn’t legally enforceable against You; or if Mattel could not limit its potential liability to You. In light of this, You understand and acknowledge that: this Submission Agreement, as is more specifically described below, limits Your actual or possible claims, actions, and remedies in some situations and entirely bars Your actual or possible claims, actions, and remedies in other situations. You understand and acknowledge that You are voluntarily, knowingly, and intentionally entering into this Submission Agreement in consideration for Mattel allowing You to share Your ideas with Mattel and the possibility (but not guarantee) that Mattel might pay You something for use of Your Product.

3.Product and Excluded Ideas

1. Product. The MMI Website is intended for people, like You, who want to voluntarily share their ideas with Mattel. The term “Product” means an idea, concept, invention, design, or mechanism for a physical product that Mattel can manufacture and sell to its retail partners or through Mattel’s ecommerce website (e.g., a board or card game, vehicle, playset, doll, action figure, baby gear item).
2. Excluded Ideas. Do not submit any Excluded Idea to Mattel. The term “Excluded Idea” means: an entertainment idea (e.g., a movie, TV, or web streaming screenplay, treatment, script, storyline, or plot); a character idea (e.g., a new character for Monster High, American Girl, or Imaginext); a theme (e.g., a rescue themed product line, Barbie as a YouTube vlogger); a software idea or technology that does not have a specific physical toy application (e.g., video game, mobile game, or other activity that doesn’t require a physical product); a business idea (e.g., a marketing plan, an advertising campaign, a partnership suggestion, a business acquisition); or any other idea that is not for a physical product. IF YOU SUBMIT AN EXCLUDED IDEA, THEN YOU KNOWINGLY AND INTENTIONALLY WAIVE, RELEASE, DISCLAIM, AND RELINQUISH ALL CLAIMS AND ACTIONS (E.G., THOSE RELATED TO MISAPPROPRIATION, EXPRESS OR IMPLIED CONTRACT, OR IP LAWS⁵), AND REMEDIES (E.G., DAMAGES, TEMPORARY RESTRAINING ORDER, AND INJUNCTION) THAT YOU HAVE OR MAY HAVE IN THE FUTURE AGAINST MATTEL IN ANY MANNER RELATED TO THE EXCLUDED IDEA (INCLUDING, WITHOUT LIMITATION, TOYS AND CONTENT THAT YOU ALLEGE WERE RELATED TO YOUR EXCLUDED IDEA). YOU UNDERSTAND AND ACKNOWLEDGE THAT: (1) YOU ARE RELEASING MATTEL FROM ALL CURRENT OR FUTURE LIABILITY IN CONNECTION WITH MATTEL’S RECEIPT, EXAMINATION, DISCLOSURE, OR USE OF YOUR EXCLUDED IDEA; AND (2) THIS RELEASE APPLIES TO ALL KNOWN, UNKNOWN, CURRENT AND FUTURE CLAIMS, ACTIONS AND REMEDIES.

4.Review Process Summary

1. Our review process may involve several steps. Products will first be reviewed by only a single person who works for Mattel. Many Products will be rejected at this point without access to or review by anyone else at Mattel. The person that first reviewed the Product may then share some Products with a few member of Mattel’s Inventor Relations Team. Most Products will be rejected at this point. You acknowledge that Mattel will not be deemed to have access to Products that are rejected. A few Product may then be reviewed with a few members of a Mattel Brand Design Team (e.g., the Barbie Design Team or Hot Wheels Design Team); and a smaller number may then be reviewed by others, such as cost engineers. Our review and evaluation is a graduated process. A Product idea may progress through several steps, but most will be rejected along the way. Product ideas are not shared with all Mattel employees or a large number of Mattel employees; just the opposite is true – access is restricted and limited. We’ll try, but we do not assume any liability or obligation, to keep You informed about our review process. You acknowledge and agree that regardless of the number of Mattel employees that may review Your Product idea as part of this Review Process, Mattel will not be deemed to have general access to or use of Your Product idea if such Product idea is rejected.
2. If Mattel provides You with feedback, that feedback may not be comprehensive – and Mattel doesn’t assume any liability or obligation with respect to its feedback.
3. Mattel employs a very large staff of designers to develop new product ideas. Each year we also receive thousands of product ideas from outside sources. And other companies create and distribute into the public market thousands of their own new products every year. Mattel finds that many submissions from outside parties: (1) are or were publicly available; (2) are similar to products developed by or in development by our own staff or others; (3) are not novel, unique, original, or concrete; or (4) are obvious. Likewise, in the future Mattel employees may independently develop or other parties may independently develop products that are similar to or may appear to be similar to Your Product.
4. Mattel’s receipt of Your Product and any actions Mattel may take related to Your Product: (1) aren’t an admission of Your Product’s novelty, uniqueness, originality, concreteness, or non-obviousness; (2) aren’t an admission that Your Product is protected or protectable by IP Laws; (3) don’t mean that Mattel has reviewed its records to determine whether it has seen, developed, or acquired rights to products that are similar to Your Product; and (4) don’t create any liability or obligation between You and Mattel, except as provided by this Submission Agreement. Mattel disavows any obligation to inform You of the existence of any of the above at any time (e.g., to inform You at any time that it or another company worked on a similar item), and Mattel’s failure to so inform You doesn’t constitute a Mattel waiver of any kind or create any Mattel liability or obligation to You.

5.Potential Royalty

1. If Mattel offers to enter into Mattel’s written inventor product license and royalty agreement (“Royalty Agreement”) with You, and You and Mattel enter into Mattel’s Royalty Agreement, then the amount and manner of any payment to You, and the royalty amount will be governed solely by that Royalty Agreement. If offered and agreed to, such Royalty Agreement would provide, among other things, for Mattel to pay You a royalty (in the manner described in Section 5(C)) of up to 1.5% of Mattel’s sales of the royalty earning products that use Your Product provided that all of the following conditions are satisfied: (1) Mattel intentionally incorporated Your Product into a Mattel product; (2) Your Product is actually novel (i.e., not known), unique, and original to both Mattel and the world (e.g., Your Product is not the same as or substantially similar to a product that is or was publicly available); and (3) Your Product is concrete (i.e., Your Product is sufficiently developed with a proof of concept or prototype, it must not be a general concept, vague, or abstract). Unless You enter into a specific Mattel Royalty Agreement, You will not receive any monetary payments, whether based on a royalty or otherwise.
2. Furthermore, Mattel will not offer to enter into a Royalty Agreement with You, enter into a Royalty Agreement with You, or pay You a royalty if: (1) Mattel’s product is or is related to an Excluded Idea; (2) Mattel’s product is substantially similar to a product developed by our own staff without reliance on Your Product or by others (e.g., another inventor) without reliance on Your Product (i.e., the Mattel product was independently developed by Mattel or another party), even if the product was developed by Mattel or presented to Mattel after the date Your Product was submitted to the MMI Website; or (3) Your Product is obvious.
3. Any royalty payment by Mattel is also conditioned on You and Mattel entering into Mattel’s written Royalty Agreement for Your Product. This Submission Agreement does not create a royalty or other financial obligation. Any such obligation will only arise if, after the review process mentioned above: (1) Mattel offers to enter into Mattel’s Royalty Agreement with You; and (2) You and Mattel enter into Mattel’s Royalty Agreement. And note that if You and Mattel do enter into Mattel’s Royalty Agreement for Your Product, Mattel’s obligation to pay You a royalty: (1) will be limited to Mattel’s sales of products that incorporate Your Product; and (2) will be calculated on the invoice price paid to Mattel less a 10% deduction.

6.Disclaimers, Waivers, Claims Limitations and Damages Cap

1. This Submission Agreement, Your Product, anything else You disclose to Mattel, and Mattel’s related actions: (1) do not create a partnership, joint venture, agency or any other type of relationship not specified in this Submission Agreement; and (2) do not create any legal, financial, equitable, liability, or other obligations to You not specified in this Submission Agreement.
2. For a number of reasons, Mattel does not and cannot accept Your Product in confidence or accept from You any confidential information. Mattel may, among other things, show Your Product to others (e.g., kids, parents, vendors, and customers) who may not have any confidentiality obligation to Mattel. So, You understand and acknowledge that Your Product and anything else You disclose to Mattel: is not confidential; is not subject to a confidentiality obligation; does not contain confidential information; and is not being submitted or held in confidence. In other words, no confidential relationship is established by Your submission or implied from consideration of the submitted materials, and the materials are not submitted “in confidence.”
3. This Submission Agreement does not create a royalty or any other financial obligation. Mattel is not financially obligated to You in any manner related to Your Product or anything else You disclose to Mattel under any circumstance (e.g., Mattel is not obligated to pay You a royalty), unless Mattel offers to enter into Mattel’s Royalty Agreement with You, and You and Mattel enter into Mattel’s Royalty Agreement as described in Section 5 and subject to the conditions described in Section 5. So, no obligation of any kind is assumed by, nor may be implied against Mattel unless Mattel offers to enter into Mattel’s Royalty Agreement with You, and You and Mattel enter into Mattel’s Royalty Agreement, and then the obligation will be only as described in that Royalty Agreement.
4. ALL OF YOUR RIGHTS AND REMEDIES ARISING OUT OF YOUR SUBMISSION TO MATTEL WILL BE LIMITED TO ANY RIGHTS AND REMEDIES YOU ARE ACCORDED UNDER U.S. PATENT AND COPYRIGHT LAWS. IN OTHER WORDS, MATTEL IS NOT OBLIGATED TO YOU IN ANY MANNER BASED UPON YOUR PRODUCT EXCEPT BASED ON U.S. PATENT OR COPYRIGHT LAWS. YOU KNOWINGLY AND INTENTIONALLY WAIVE, RELEASE, DISCLAIM, AND RELINQUISH ALL OTHER CLAIMS AND ACTIONS THAT ARE NOT STRICTLY BASED ON U.S. PATENT OR COPYRIGHT LAWS (E.G., THOSE RELATED TO MISAPPROPRIATION OR EXPRESS OR IMPLIED CONTRACT), AND REMEDIES (E.G., DAMAGES, TEMPORARY RESTRAINING ORDER, AND INJUNCTION) THAT YOU HAVE OR MAY HAVE IN THE FUTURE AGAINST MATTEL IN ANY MANNER RELATED TO YOUR PRODUCT, ANYTHING ELSE YOU DISCLOSE TO MATTEL, OR THIS SUBMISSION AGREEMENT. YOU UNDERSTAND AND ACKNOWLEDGE THAT: (1) YOU ARE RELEASING MATTEL FROM ALL CURRENT OR FUTURE LIABILITY IN CONNECTION WITH MATTEL’S RECEIPT, EXAMINATION, DISCLOSURE, OR USE OF YOUR PRODUCT OR ANYTHING ELSE YOU DISCLOSE TO MATTEL, EXCEPT AS TO SUCH LIABILITY THAT YOU MAY HAVE UNDER U.S. PATENT OR COPYRIGHT LAWS; AND (2) THIS RELEASE APPLIES TO ALL KNOWN, UNKNOWN, CURRENT, AND FUTURE CLAIMS, ACTIONS AND REMEDIES.
5. YOU MAY ONLY ASSERT A CLAIM OR COMMENCE AN ACTION AGAINST MATTEL IN CONNECTION WITH YOUR PRODUCT, ANYTHING ELSE YOU DISCLOSE TO MATTEL, OR THIS SUBMISSION AGREEMENT WITHIN ONE YEAR OF THE DATE THE PRODUCT AT ISSUE WAS AVAILABLE FOR PURCHASE BY A CONSUMER AT A RETAILER STORE OR ON A MATTEL WEBSITE. CLAIMS ASSERTED AND ACTIONS COMMENCED MORE THAN ONE YEAR AFTER THE DATE THE PRODUCT AT ISSUE WAS AVAILABLE FOR PURCHASE BY A CONSUMER AT A RETAILER STORE OR ON A MATTEL WEBSITE WILL BE FOREVER BARRED.
6. You may only assert a claim or commence an action against Mattel in any manner related to Your Product, anything else You disclose to Mattel, or this Submission Agreement in the state courts located in New York County or federal courts located in the Southern District of New York.
7. YOU KNOWINGLY AND INTENTIONALLY WAIVE, RELEASE, DISCLAIM, AND RELINQUISH YOUR RIGHT TO TRIAL BY JURY IN ALL LAWSUITS AGAINST MATTEL THAT ARE IN ANY MANNER RELATED TO YOUR PRODUCT, ANYTHING ELSE YOU DISCLOSE TO MATTEL, OR THIS SUBMISSION AGREEMENT. FURTHER, SUCH CLAIMS OR ACTIONS AGAINST MATTEL WILL PROCEED ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR REPRESENTATIVE BASIS, AND WILL NOT BE CONSOLIDATED WITH ANY OTHER PROCEEDINGS THAT INVOLVE ANY CLAIM OR CONTROVERSY OF ANY OTHER PARTY.
8. IF YOU PREVAIL ON ONE OR MORE CLAIMS OR ACTIONS AGAINST MATTEL IN ANY MANNER RELATED TO YOUR PRODUCT, ANYTHING ELSE YOU DISCLOSE TO MATTEL, OR THIS SUBMISSION AGREEMENT UNDER ANY THEORY (INCLUDING, WITHOUT LIMITATION, UNDER IP LAWS), THEN YOUR ENTIRE REMEDY IS: (1) LIMITED TO YOUR ACTUAL DAMAGES (I.E., YOU KNOWINGLY AND INTENTIONALLY WAIVE, RELEASE, DISCLAIM, AND RELINQUISH RECOVERY OF ALL OTHER TYPES OF REMEDIES, DAMAGES, AND COSTS, SUCH AS INDIRECT, SPECIAL, INCIDENTAL AND CONSEQUENTIAL DAMAGES, PUNITIVE DAMAGES, DISGORGEMENT OF PROFITS, AND ATTORNEYS’ FEES, EVEN IF SUCH OTHER TYPES OF REMEDIES, DAMAGES, OR COSTS MAY OTHERWISE BE RECOVERABLE UNDER IP LAWS); AND (2) CAPPED AT (I.E., MAY NOT EXCEED) U.S. $50,000 EVEN IF YOU PREVAIL ON MORE THAN ONE CLAIM OR ACTION.
9. IF A COURT DOES NOT FULLY ENFORCE ANY WAIVER, RELEASE, DISCLAIMER, OR RELINQUISHMENT MADE BY YOU IN THIS SUBMISSION AGREEMENT (INCLUDING, WITHOUT LIMITATION, YOUR WAIVER UNDER SECTION 6(D) OR YOUR WAIVER UNDER SECTION 3(B)) OR IF A COURT OTHERWISE ALLOWS YOU TO PROCEED ON ANY CLAIM OR ACTION, THEN YOU UNDERSTAND AND ACKNOWLEDGE THAT:
   1. YOU MUST COMMENCE YOUR LAWSUIT AGAINST MATTEL WITHIN ONE YEAR OF THE DATE THE PRODUCT AT ISSUE WAS AVAILABLE FOR PURCHASE BY A CONSUMER AT A RETAILER STORE OR ON A MATTEL WEBSITE;
   2. YOU MUST COMMENCE YOUR ACTION IN THE STATE COURTS LOCATED IN NEW YORK COUNTY OR FEDERAL COURTS LOCATED IN THE SOUTHERN DISTRICT OF NEW YORK;
   3. YOU ARE WAIVING YOUR RIGHT TO TRIAL BY JURY IN THAT LAWSUIT, WHICH MAY PROCEED ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR REPRESENTATIVE BASIS; AND
   4. THE REMEDY LIMITATIONS AND $50,000 DAMAGES CAP DESCRIBED IN SECTION 6(H) WILL APPLY TO THOSE CLAIMS AND ACTIONS.

7.Your Promises

1. You promise to Mattel that: (1) the party that checked the check box, clicked the “Accept” button on the MMI Website, and the party that will complete the MMI Website’s “Submit Your Idea” form has all necessary authority to enter into, fully perform, and be fully bound by this Submission Agreement; (2) You own all right, title, and interest to the Product and everything else You disclose to Mattel (e.g., even an Excluded Idea), or You share Your right, title, and interest with another party whom You’ve identified in Your “Submit Your Idea” form and You have express written authority to represent that party, act on that party’s behalf, and to bind that party to this Submission Agreement; (3) the information You completed in Your “Submit Your Idea” form and uploaded video is accurate, complete, and true; (4) You don’t work in the toy industry (e.g., you don’t work for a toy manufacturer or toy company) and have not worked in the toy industry in the past 2 years; (5) Mattel's use and exploitation of Your Product and anything else You disclose to Mattel (e.g., even an Excluded Idea) does not and will not infringe any intellectual property or other right of any third party; (6) You and every other party that has a right, title, and interest to the Product and everything else You disclose to Mattel are residents of the U.S.A., were located in the U.S.A. at the time the Product was uploaded to the MMI Website; and (7) You completely understand and voluntarily agree to all of this Submission Agreement’s provisions, and You had the choice and the opportunity to consult with Your attorney before checking the “check box”, clicking the “Accept” button on the MMI Website, and completing the MMI Website’s “Submit Your Idea” form.
2. You promise to defend, indemnify, and hold Mattel completely harmless for all out-of-pocket damages, costs, and expenses (including, without limitation, attorney fees and court costs) that Mattel incurs as a result of Your breach of this Section 7.
3. If You are sharing the Product with Mattel on behalf of a minor, then You promise that You are the minor’s parent or legal guardian. And You understand and acknowledge on Your behalf and the minor’s behalf that You and the minor are voluntarily: (1) sharing the Product with Mattel; and (2) agreeing to be bound to this Agreement.
4. If You breach this Section 7, then You knowingly and intentionally waive, release, disclaim, and relinquish all claims and actions (e.g., those related to misappropriation, express or implied contract, or IP Laws), and remedies (e.g., damages, temporary restraining order, and injunction) that You have or may have in the future against Mattel in any manner related to Your Product, anything else You disclose to Mattel, or this Submission Agreement.

8.Miscellaneous

1. This Submission Agreement is effective from the date You checked the “check box” and clicked the “Accept” button on the MMI Website and it continues in effect until You, an officer of Mattel, and a lawyer of Mattel physically sign another written agreement that expressly references and modifies or terminates this Submission Agreement.
2. Mattel may provide You with confidential or proprietary information related to Mattel’s business or Mattel’s partners, including information about current and future Mattel products. You must not use or disclose that information for any reason, except as required by law.
3. This Submission Agreement is governed by and must be construed in accordance with New York law, without regard to its conflict of laws doctrine. If a court of competent jurisdiction finds any provision of this Submission Agreement invalid or unenforceable, then it is the parties’ intention that the court enforce: (1) such provision to the maximum extent permissible; and (2) the remaining provisions of this Submission Agreement. The failure or delay by either party to enforce any provision of this Submission Agreement will not constitute a waiver of that provision or any other provision.
4. This Agreement must be construed as if the parties had drafted it jointly if an ambiguity or a question of interpretation arises.
5. Mattel may immediately suspend or terminate the availability of the MMI Website (and any elements and features of them) for any reason, in Mattel’s sole discretion, and without advance notice or liability. Mattel reserves the right to: change terms and conditions for the MMI Website or portions of the MMI Website; and restrict access to the Website.
6. Your access and use of the MMI Website is at Your sole risk. The MMI Website is provided on an “as is”, “as available”, and “with all faults” basis.
7. This Submission Agreement: (1) contains the parties’ complete agreement related to Your Product and anything else You disclose to Mattel; (2) voids all other agreements, representations, and understandings (express or implied) between the parties in any manner related to Your Product or anything else You disclose to Mattel; (3) will control if there is a conflict between this Submission Agreement and the Mattel Privacy Statement; and (4) may be modified only by a document physically signed by You, an officer of Mattel, and a Mattel lawyer. For purposes of clarity, this Submission applies to, governs, controls, and contains all of the terms and conditions related to Your use of the MMI Website and Your related disclosures, including without limitation, Your Products and Excluded Ideas. Mattel’s Terms and Conditions of Website Use (the “User Agreement”) expressly does not apply to, govern, control, or contain any terms or conditions related to Your use of the MMI Website or Your related disclosures. Terms and markings that may accompany Your Product or anything else You disclose to Mattel (including, without limitation, videos You upload to the MMI Website or communications with a Mattel employee) don’t modify this Submission Agreement, will not be a basis for any purported Mattel waiver, liability, or obligation, and aren’t enforceable against Mattel unless the above conditions for an amendment to this Submission Agreement are satisfied. No rights, duties, liabilities, or obligations may be implied or read into this Submission Agreement, Your Product, anything else You disclose to Mattel, or Mattel’s related actions under any theory, such as custom, trade usage, course of dealing, course of performance, or implied contract – and You knowingly and intentionally waive, release, disclaim, and relinquish all such rights, duties, liabilities and obligations.

1. “You” and “Your” means the: (a) party identified in the MMI Website’s “Submit Your Idea” form; (b) the party that checked the box and clicked the “Accept” button on the MMI Website; and (c) the party that completed the MMI Website’s “Submit your idea” form, as well as all related entities (e.g., corporations, partnerships) and others acting on Your behalf (e.g., employees, agents). If You are acting on behalf of others, then the term “You” and “Your” also includes all those parties, including, but not limited to, a minor (i.e., a person under the age of majority in their legal jurisdiction of residency, which is 18 years old in most states in the U.S.) if You are sharing the Product with Mattel on behalf of a minor. If You are sharing the Product with Mattel on behalf of a minor, then You promise that You are the minor’s parent or legal guardian.
2. This refers to the check box on the MMI Website that states “I completely understand and voluntarily agree to all of the Submission Agreement’s provisions, and I voluntarily agree to be legally bound by that contract.”
3. This refers to the “Accept” button on the MMI Website.
4. “Mattel” means Mattel, Inc., its subsidiaries and affiliates, and their successors and assigns. “Mattel” includes, without limitation, Fisher-Price, American Girl, Mega, and HiT Entertainment.
5. “IP Laws” mean laws that protect the intangible rights protecting commercially valuable products of human intellect. The category comprises primarily trademarks, copyrights, and patent rights, but also includes trade-secret rights, publicity rights, moral rights, and rights against unfair competition.