WelcomeSanta.com TERMS OF SERVICE
Restrictions on Use:
Customer covenants that it will not, in connection with the use of the WelcomeSanta.com Service:
WelcomeSanta.com will not review or screen Content or Apps on a regular basis for compliance with this Agreement or applicable law, and WelcomeSanta.com shall have no obligation to do so; provided, however, that
At WelcomeSanta.com, our goal is to provide the highest quality service for the best value. The WelcomeSanta.com Usage Policy defines what constitutes an acceptable use of the WelcomeSanta.com Service. WelcomeSanta.com establishes normal usage profiles for users of the WelcomeSanta.com Service across the industries where it operates. User profiles may be monitored to identify unusual patterns inconsistent with normal, individual use. WelcomeSanta.com may, at its sole discretion, suspend Customer’s right to use the WelcomeSanta.com Service, and/or terminate this Agreement in its entirety (and, accordingly, Customer’s right to use the WelcomeSanta.com Service), if WelcomeSanta.com determines that Customer usage varies substantially from normal use, and/or there is an unusual spike or increase in Customer use of the WelcomeSanta.com Service for which there is reason to believe such traffic or use is fraudulent or negatively impacting the operating capability of the WelcomeSanta.com Service. WelcomeSanta.com will use good faith efforts to notify the Customer in the event of such suspension and/or termination.
Customer shall ensure that all of Customer’s end users which use or access the WelcomeSanta.com 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 WelcomeSanta.com Service than those set forth in this Agreement. If WelcomeSanta.com determines in its sole discretion that a Customer has failed to comply with the terms and policies, WelcomeSanta.com 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 WelcomeSanta.com Service).
FEES AND PAYMENT FOR PURCHASED SERVICES
Customer will pay all fees specified in Service Order Forms or Invoices. Except as otherwise specified herein or in an Order Form,
Invoicing and Payment:
Customer will provide WelcomeSanta.com with valid and updated credit card information or with a alternative document reasonably acceptable to WelcomeSanta.com. If Customer provides credit card information to WelcomeSanta.com, Customer authorizes WelcomeSanta.com to charge such credit card for all purchased services listed in the Order Form for the Initial Term. 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 ordering WelcomeSanta services.. Customer is responsible for providing complete and accurate billing and contact information to WelcomeSanta.com and notifying WelcomeSanta.com of any changes to such information.
WelcomeSanta.com 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 WelcomeSanta.com has the legal obligation to pay or collect Taxes for which Customer are responsible under this section , WelcomeSanta.com will invoice Customer and Customer will pay that amount unless Customer provides WelcomeSanta.com with a valid tax exemption certificate authorized by the appropriate taxing authority. For the avoidance of doubt, WelcomeSanta.com shall be solely responsible for Taxes assessable against WelcomeSanta.com based on WelcomeSanta.com’s income, property and employees, and Customer shall not withhold or deduct any amounts for same except as required by applicable law.
All payments must be made in the currency of the invoice and are non-refundable.
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 WelcomeSanta.com regarding future functionality or features.
License to Use the WelcomeSanta.com Service:
Subject to the terms and conditions set forth in this Agreement, WelcomeSanta.com hereby grants Customer a limited, revocable (as set forth in this Agreement), non-transferable, non-exclusive, worldwide license to use the applicable
WelcomeSanta.com Service for which Customer has submitted an Order or registered online. All rights not expressly granted to Customer are reserved by WelcomeSanta.com. Except as expressly consented to by WelcomeSanta.com, in writing, Customer shall not:
License to Content
Customer hereby grants WelcomeSanta.com 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 WelcomeSanta.com to provide the WelcomeSanta.com Service in accordance with this Agreement. All rights not expressly granted to WelcomeSanta.com are reserved by Customer.
License to Feedback, Suggestions or Recommendations:
Customer hereby grants WelcomeSanta.com an unlimited, irrevocable, perpetual, transferable, non-exclusive, royalty-free, worldwide license to use and/or incorporate into the WelcomeSanta.com Service any feedback, suggestions and/or recommendations provided to WelcomeSanta.com by Customer regarding the WelcomeSanta.com Service, whether during the Term or otherwise.
Customer agrees not to remove, obscure, or alter any WelcomeSanta.com copyright notice, trademarks, logos, or other proprietary rights notices affixed to or contained within the WelcomeSanta.com Service.
As between the parties, WelcomeSanta.com shall own and retain all right, title and interest in and to the WelcomeSanta.com Service, and all elements thereof (including without limitation any and all WelcomeSanta.com 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.
WelcomeSanta.com acknowledges and agrees that as between WelcomeSanta.com and Customer, Customer shall retain all right title and interest in and to the Customer’s software, products and services, subject to WelcomeSanta.com’s underlying rights in and to the WelcomeSanta.com Service and all elements thereof.
REPRESENTATIONS AND WARRANTIES
The WelcomeSanta.com Service. WelcomeSanta.com 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
Customer agrees to indemnify and hold WelcomeSanta.com 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 WelcomeSanta.com 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, WelcomeSanta.com will
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, WelcomeSanta.com 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 WelcomeSanta.com SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE WelcomeSanta.com SERVICE IS PROVIDED ON AN “AS IS” BASIS ONLY. NO ADVICE OR INFORMATION OBTAINED BY CUSTOMER FROM WelcomeSanta.com 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
WelcomeSanta.com may, from time to time, inform customers of third-party services that can be used by customers in connection with the WelcomeSanta.com Service, including services from companies associated with WelcomeSanta.com’s partner program, and Customer may opt to use these or other third-party services in connection with the WelcomeSanta.com Service. Customer’s use of any third-party service in connection with the WelcomeSanta.com Service, and any terms, conditions, representations and/or warranties associated with such use, are solely between Customer and such third-party service provider. WelcomeSanta.com 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 WelcomeSanta.com or selected as a premier partner (or similar designation) by WelcomeSanta.com. As such, WelcomeSanta.com shall not be responsible or liable to Customer in any manner for any such third-party service. WelcomeSanta.com does not, unless otherwise expressly set forth in writing, provide maintenance or support for third-party services.
Each party agrees not to disclose the other party’s Confidential Information without its prior written consent. “Confidential Information” includes, without limitation:
WelcomeSanta.com 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 WelcomeSanta.com’s general marketing materials. Customer shall have the right to identify WelcomeSanta.com as the provider of the WelcomeSanta.com Service, and to use WelcomeSanta.com’s name and/or logo solely in connection with Customer’s use of the WelcomeSanta.com Service.
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 WelcomeSanta.com, to:
Attn: General Counsel
MOBILE APPLICATION STORES
Apps leveraging WelcomeSanta.com may be submitted to the Apple® App Store and/or the Google® Play store and such other marketplaces as WelcomeSanta.com 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. WelcomeSanta.com 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, WelcomeSanta.com expressly disclaims any responsibility for any failure of any App to comply with the App Markets’ policies.
If the law of Customer’s country prohibits Customer, Customer administrators and/or Customer users from using WelcomeSanta.com Service because the WelcomeSanta.com 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 WelcomeSanta.com Service in such circumstances.
WelcomeSanta.com 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, WelcomeSanta.com expressly disclaims any and all liability with respect to Customer recording of audio and/or shared data while using the WelcomeSanta.com Service, and Customer releases and agrees to hold WelcomeSanta.com 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 WelcomeSanta.com Services. If Customer’s broadband connection and/or telephone service fails, or Customer experiences a power failure, the WelcomeSanta.com Services may also cease to function due to reasons outside of WelcomeSanta.com control, and WelcomeSanta.com shall not be liable for, and Customer expressly releases WelcomeSanta.com from any liability, in connection with same.
OPEN SOURCE DISCLOSURE
WelcomeSanta.com acknowledges that it uses certain Open Source Libraries as part of the WelcomeSanta.com Service. A summary and acknowledgment of WelcomeSanta.com’s open source use can be found at WelcomeSanta.com Open Source Libraries (http://www.WelcomeSanta.com/open-source-licenses/ )
COPYRIGHT COMPLAINT POLICY
If you believe any Content or other use of the WelcomeSanta.com 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 WelcomeSanta.com 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.
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 WelcomeSanta.com 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, WelcomeSanta.com 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:
Attention: General Counsel