VisitWithSanta.com Santa TERMS OF SERVICE

CUSTOMER’S OBLIGATIONS:

Restrictions on Use:
Customer covenants that it will not, in connection with the use of the VisitWithSanta.com Santa Service:

• use the VisitWithSanta.com Santa Service in any illegal or unlawful manner, or for any illegal or unlawful purpose, or to stalk, harass, or harm another individual;
• perform any act which is intended to and/or actually does harm to VisitWithSanta.com Santa, the VisitWithSanta.com Santa Service, or any of VisitWithSanta.com Santa’s customers;
• imply or state, directly or indirectly, that Customer is affiliated with or endorsed by VisitWithSanta.com Santa without VisitWithSanta.com Santa’s express written permission;
• share the Customer’s password or let any third party access Customer’s Account, or take any other action which would affect the security of the Customer’s Account;
• attempt to or actually override any security component included in the VisitWithSanta.com Santa Services; or,
• publish, transmit, or disseminate any Content which is

• illegal (including without limitation copyrighted material and material which infringes or has the potential to infringe the Intellectual Property Rights of a third party,
• slanderous or libelous,
• a breach of a third party’s privacy rights.
• pornographic, sexually explicit or violent,

VisitWithSanta.com Santa will not review or screen Content or Apps on a regular basis for compliance with this Agreement or applicable law, and VisitWithSanta.com Santa shall have no obligation to do so; provided, however, that

• in addition to any other rights VisitWithSanta.com Santa may have, VisitWithSanta.com Santa reserves the right to suspend and/or terminate Customer’s access to and/or use of the VisitWithSanta.com Santa Service, or any particular Content or App, if VisitWithSanta.com Santa determines, in its sole judgment and discretion, that such suspension or termination is necessary to comply with the foregoing restrictions, applicable law, and/or to prevent significant harm to the VisitWithSanta.com Santa Service or any end user, and
• in such event, VisitWithSanta.com Santa shall use commercially reasonable efforts to suspend or terminate only that portion of the VisitWithSanta.com Santa Service or any particular Content or App as VisitWithSanta.com Santa deems reasonably necessary to prevent the occurrence or continuation of such violation and/or harm.

Usage Policy:

At VisitWithSanta.com Santa, our goal is to provide the highest quality service for the best value. The VisitWithSanta.com Santa Usage Policy defines what constitutes an acceptable use of the VisitWithSanta.com Santa Service. VisitWithSanta.com Santa establishes normal usage profiles for users of the VisitWithSanta.com Santa Service across the industries where it operates. User profiles may be monitored to identify unusual patterns inconsistent with normal, individual use. VisitWithSanta.com Santa may, at its sole discretion, suspend Customer’s right to use the VisitWithSanta.com Santa Service, and/or terminate this Agreement in its entirety (and, accordingly, Customer’s right to use the VisitWithSanta.com Santa Service), if VisitWithSanta.com Santa determines that Customer usage varies substantially from normal use, and/or there is an unusual spike or increase in Customer use of the VisitWithSanta.com Santa Service for which there is reason to believe such traffic or use is fraudulent or negatively impacting the operating capability of the VisitWithSanta.com Santa Service. VisitWithSanta.com Santa will use good faith efforts to notify the Customer in the event of such suspension and/or termination.

End Users:

Customer shall ensure that all of Customer’s end users which use or access the VisitWithSanta.com Santa Service shall, as a condition of any such use or access, agree to terms which comply with the terms of this Agreement, and which are no less restrictive with respect to the use of the VisitWithSanta.com Santa Service than those set forth in this Agreement. If VisitWithSanta.com Santa determines in its sole discretion that a Customer has failed to comply with the terms and policies, VisitWithSanta.com Santa may, in addition to any other available rights and remedies, suspend and/or terminate this Agreement in its entirety (and, accordingly, Customer’s and end users’ right to use the VisitWithSanta.com Santa Service).

FEES AND PAYMENT FOR PURCHASED SERVICES

Fees:
Customer will pay all fees specified in Service Order Forms or Invoices. Except as otherwise specified herein or in an Order Form,

• fees are based on VisitWithSanta.com Santa Services purchased and not actual usage,
• payment obligations are non-cancelable and fees paid are non-refundable, and
• quantities purchased cannot be decreased during the relevant subscription term.

Invoicing and Payment:

Customer will provide VisitWithSanta.com Santa with valid and updated credit card information or with a alternative document reasonably acceptable to VisitWithSanta.com Santa. If Customer provides credit card information to VisitWithSanta.com Santa, Customer authorizes VisitWithSanta.com Santa to charge such credit card for all purchased services listed in the Order Form for the Initial Term and Renewal Term(s).. Such charges shall be made in advance, in accordance with billing process stated in the applicable Order Form.. Unless otherwise stated in the Order Form, invoiced charges are payable upon receipt of the invoice, and shall be due within sixty (60) days thereafter (the “Due Date”), unless otherwise specified in the Order Form. Customer is responsible for providing complete and accurate billing and contact information to VisitWithSanta.com Santa and notifying VisitWithSanta.com Santa of any changes to such information.

Taxes:

VisitWithSanta.com Santa fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including for example, value-added sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Customer purchases hereunder. If VisitWithSanta.com Santa has the legal obligation to pay or collect Taxes for which Customer are responsible under this section , VisitWithSanta.com Santa will invoice Customer and Customer will pay that amount unless Customer provides VisitWithSanta.com Santa with a valid tax exemption certificate authorized by the appropriate taxing authority. For the avoidance of doubt, VisitWithSanta.com Santa shall be solely responsible for Taxes assessable against VisitWithSanta.com Santa based on VisitWithSanta.com Santa’s income, property and employees, and Customer shall not withhold or deduct any amounts for same except as required by applicable law.

Payment Procedures:

All payments must be made in the currency of the invoice and are non-refundable.

Future Functionality:

Customer agrees that Customer purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by VisitWithSanta.com Santa regarding future functionality or features.

LICENSES

License to Use the VisitWithSanta.com Santa Service:

Subject to the terms and conditions set forth in this Agreement, VisitWithSanta.com Santa hereby grants Customer a limited, revocable (as set forth in this Agreement), non-transferable, non-exclusive, worldwide license to use the applicable

VisitWithSanta.com Santa Service for which Customer has submitted an Order or registered online. All rights not expressly granted to Customer are reserved by VisitWithSanta.com Santa. Except as expressly consented to by VisitWithSanta.com Santa, in writing, Customer shall not:

• sublicense, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the VisitWithSanta.com Santa Service or any part thereof, in any way; or
• modify, reverse engineer, decompile, disassemble or make derivative works based upon the VisitWithSanta.com Santa Service, and any and all VisitWithSanta.com Santa software, tools, and trademarks.

License to Content

Customer hereby grants VisitWithSanta.com Santa a limited, revocable (as set forth in this Agreement), non-transferable, non-exclusive, royalty-free, worldwide license to perform all such acts with respect to the Customer’s Content as are necessary for VisitWithSanta.com Santa to provide the VisitWithSanta.com Santa Service in accordance with this Agreement. All rights not expressly granted to VisitWithSanta.com Santa are reserved by Customer.

License to Feedback, Suggestions or Recommendations:

Customer hereby grants VisitWithSanta.com Santa an unlimited, irrevocable, perpetual, transferable, non-exclusive, royalty-free, worldwide license to use and/or incorporate into the VisitWithSanta.com Santa Service any feedback, suggestions and/or recommendations provided to VisitWithSanta.com Santa by Customer regarding the VisitWithSanta.com Santa Service, whether during the Term or otherwise.

License Restrictions:

Customer agrees not to remove, obscure, or alter any VisitWithSanta.com Santa copyright notice, trademarks, logos, or other proprietary rights notices affixed to or contained within the VisitWithSanta.com Santa Service.

Title:
As between the parties, VisitWithSanta.com Santa shall own and retain all right, title and interest in and to the VisitWithSanta.com Santa Service, and all elements thereof (including without limitation any and all VisitWithSanta.com Santa software, tools and trademarks), including without limitation all Intellectual Property Rights therein and relating thereto. “Intellectual Property Rights” means, collectively, all patent rights, copyrights, trade secrets and moral rights; trade names, trademarks, service marks, and companion goodwill; domain names; rights of publicity and rights of privacy; and other similar rights throughout the world, together with all registrations and/or applications for each of the foregoing.

VisitWithSanta.com Santa acknowledges and agrees that as between VisitWithSanta.com Santa and Customer, Customer shall retain all right title and interest in and to the Customer’s software, products and services, subject to VisitWithSanta.com Santa’s underlying rights in and to the VisitWithSanta.com Santa Service and all elements thereof.

REPRESENTATIONS AND WARRANTIES

The VisitWithSanta.com Santa Service. VisitWithSanta.com Santa represents and warrants that it either owns fully and outright or otherwise possesses and has obtained all rights, approvals, licenses, consents and permissions as are necessary to perform its obligations hereunder, exercise its rights hereunder and to grant the licenses granted by it under this Agreement.

Content and Apps. Customer represents and warrants that

• it either owns fully and outright or otherwise possesses and has obtained all rights, approvals, licenses, consents and permissions as are necessary to perform its obligations hereunder, exercise its rights hereunder and to grant the licenses granted by it under this Agreement and
• the Content and the Apps use through the VisitWithSanta.com Santa Service, as enabled by Customer, directly or indirectly, does not, and shall not, infringe, violate or misappropriate any third party’s rights.

INDEMNIFICATION

Customer agrees to indemnify and hold VisitWithSanta.com Santa and its subsidiaries, affiliates, officers, agents, employees, and licensors harmless from and against any and all claims, demands, lawsuits, actions or other liability (collectively, “Claims”), including reasonable attorneys’ fees, due to or arising out of Customer’s Content, Customer’s use of the VisitWithSanta.com Santa Services, any claim that Customer or Customer’s Content caused damage to a third party, Customer’s violation of this Agreement or any material term hereof, or Customer’s violation of any rights of another, including without limitation any Intellectual Property Rights. In connection with any Claims, pursuant to this Section, VisitWithSanta.com Santa will

• give Customer prompt written notice of such claim; and
• cooperate reasonably with Customer (at Customer’s expense) in providing information in connection with Customer’s payment of the defense of such Claim and any losses arising out of such Claim.

DISCLAIMERS

EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, VisitWithSanta.com Santa MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND TO CUSTOMER, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, WORKMANLIKE QUALITY, NON-INFRINGEMENT, TITLE, SUITABILITY, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE OR THAT THE VisitWithSanta.com Santa SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE VisitWithSanta.com Santa SERVICE IS PROVIDED ON AN “AS IS” BASIS ONLY. NO ADVICE OR INFORMATION OBTAINED BY CUSTOMER FROM VisitWithSanta.com Santa SHALL CREATE ANY REPRESENTATION OR WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. IF ANY JURISDICTION DOES NOT ALLOW THE DISCLAIMER OF ANY OF THE ABOVE WARRANTIES, THE SCOPE AND DURATION OF THE APPLICABLE WARRANTY(IES) SHALL BE LIMITED AS REQUIRED BY APPLICABLE LAW.

LIMITATION OF LIABILITY

NEITHER PARTY SHALL BE LIABLE TO THE OTHER UNDER OR IN CONNECTION WITH THE AGREEMENT FOR ANY INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE.

THE LIABILITY OF EITHER PARTY TO THE OTHER UNDER OR IN CONJUNCTION WITH THE AGREEMENT SHALL NOT EXCEED 100% OF THE ANNUAL CONTRACT VALUE IN AGGREGATE.

THIS CLAUSE SHALL NOT APPLY TO LOSS OR DAMAGE ARISING OUT OF OR IN CONJUNCTION WITH FRAUD, DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE OR TO THE EXTENT THAT LIABILITY CANNOT BE LIMITED OR EXCLUDED BY LAW.

THIRD PARTY SERVICES

VisitWithSanta.com Santa may, from time to time, inform customers of third-party services that can be used by customers in connection with the VisitWithSanta.com Santa Service, including services from companies associated with VisitWithSanta.com Santa’s partner program, and Customer may opt to use these or other third-party services in connection with the VisitWithSanta.com Santa Service. Customer’s use of any third-party service in connection with the VisitWithSanta.com Santa Service, and any terms, conditions, representations and/or warranties associated with such use, are solely between Customer and such third-party service provider. VisitWithSanta.com Santa makes no endorsement, representation or warranty with regard to any such third-party service, or any content or materials used on connection with such third-party service, even if such provider is certified by VisitWithSanta.com Santa or selected as a premier partner (or similar designation) by VisitWithSanta.com Santa. As such, VisitWithSanta.com Santa shall not be responsible or liable to Customer in any manner for any such third-party service. VisitWithSanta.com Santa does not, unless otherwise expressly set forth in writing, provide maintenance or support for third-party services.

CONFIDENTIALITY

Each party agrees not to disclose the other party’s Confidential Information without its prior written consent. “Confidential Information” includes, without limitation:

• all intellectual property;
• financial information (including pricing) and business information; and
• any other information designated in writing as “Confidential”, or which would reasonably be deemed to be confidential in nature. Confidential Information does not include:
• Customer’s Content;
• information that has become publicly known through no breach by Customer or VisitWithSanta.com Santa of these confidentiality obligations;
• information that is independently and lawfully developed or obtained without access to Confidential Information, as evidenced in writing;
• information required to be disclosed by law or court order; or
• the fact that Customer is a customer of VisitWithSanta.com Santa.

IDENTIFICATION RIGHTS

VisitWithSanta.com Santa shall have the right to identify Customer as a customer only upon prior written permission from Customer, in any manner or media, and to use Customer’s name and/or logo in VisitWithSanta.com Santa’s general marketing materials. Customer shall have the right to identify VisitWithSanta.com Santa as the provider of the VisitWithSanta.com Santa Service, and to use VisitWithSanta.com Santa’s name and/or logo solely in connection with Customer’s use of the VisitWithSanta.com Santa Service.

NOTICES

All notices under this Agreement must be in writing and delivered either by hand, e-mail (with confirmation of receipt), certified mail (return receipt requested, postage pre-paid) or nationally recognized overnight delivery service (all delivery charges pre-paid) and addressed, if to Customer, to the contact identified in Customer’s most recent Order and, if to VisitWithSanta.com Santa, to:

VisitWithSanta.com Santa
____________________________
___________________________
Attn: General Counsel

MOBILE APPLICATION STORES

Apps leveraging VisitWithSanta.com Santa may be submitted to the Apple® App Store and/or the Google® Play store and such other marketplaces as VisitWithSanta.com Santa may from time to time enable (collectively, the “App Markets”). Customer is solely responsible for submitting all Apps to the App Markets for approval and acceptance. VisitWithSanta.com Santa makes no representation or warranty that the App Markets will accept the submitted App or the extent to which an App will be installed and/or used by end users. Customer is solely responsible for ensuring that it and its Apps comply with the App Markets’ policies, including, without limitation, any obligations regarding privacy and privacy policies, and, in addition to all other disclaimers set forth in this Agreement, VisitWithSanta.com Santa expressly disclaims any responsibility for any failure of any App to comply with the App Markets’ policies.

JURISDICTION RESTRICTIONS

If the law of Customer’s country prohibits Customer, Customer administrators and/or Customer users from using VisitWithSanta.com Santa Service because the VisitWithSanta.com Santa Service is not allowed in the country or countries in which Customer or Customer users are located, Customer and Customer users are prohibited from using the VisitWithSanta.com Santa Service in such circumstances.

RECORDINGS

VisitWithSanta.com Santa Services provide functionality to record audio and video data shared during sessions. Customer is solely responsible for complying with all federal, state, and local laws in the relevant jurisdiction when using such recording functionality. Without limiting any other disclaimers set forth in this Agreement, VisitWithSanta.com Santa expressly disclaims any and all liability with respect to Customer recording of audio and/or shared data while using the VisitWithSanta.com Santa Service, and Customer releases and agrees to hold VisitWithSanta.com Santa harmless from and against any damages, or any other consequences or liabilities related to recording, loss or deletion of customer data.

VOICE AND DATA CHARGES; CUSTOMER CONNECTIVITY

Customer is responsible for all fees and charges imposed by Customer’s telephone carriers, wireless providers, and other voice and/or data transmission providers for voice and/or data transmission used to access and use the VisitWithSanta.com Santa Services. If Customer’s broadband connection and/or telephone service fails, or Customer experiences a power failure, the VisitWithSanta.com Santa Services may also cease to function due to reasons outside of VisitWithSanta.com Santa control, and VisitWithSanta.com Santa shall not be liable for, and Customer expressly releases VisitWithSanta.com Santa from any liability, in connection with same.

OPEN SOURCE DISCLOSURE

VisitWithSanta.com Santa acknowledges that it uses certain Open Source Libraries as part of the VisitWithSanta.com Santa Service.

COPYRIGHT COMPLAINT POLICY

If you believe any Content or other use of the VisitWithSanta.com Santa Services infringes your copyrighted work(s), you may provide a notification of claimed copyright infringement to our Designated Agent for copyright complaints, requesting that the infringing material be removed, or that access to the VisitWithSanta.com Santa Services be blocked. This notice must include:

A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.

• Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material. We will need direct URLs to the content/image(s) being referenced.
• Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
• A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
• A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

In addition, if you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the law permits you to send VisitWithSanta.com Santa a counter-notice. Notices and counter-notices must meet statutory requirements imposed by the Digital Millennium Copyright Act (“DMCA”). You acknowledge that if you fail to comply with all of the notice requirements of the DMCA, your notice may not be valid. You may currently find this information at http://www.loc.gov/copyright.

In accordance with the DMCA, VisitWithSanta.com Santa has designated an agent to receive notification of alleged copyright infringement. Any written Notification of Claimed infringement should with Title 17, United States Code, Section 512(c)(3)(A) and should be provided in writing to our Designated Agent as follows:

VisitWithSanta.com Santa, LLC
______
______
Attention: General Counsel