Terms of Service
Terms of Service
The following Terms of Service apply to your use of all websites, mobile applications, and other products and services owned, controlled, operated or hosted (whether now or in the future) by Ocean of Dreams Media, LLC dba Talk to Santa and/or its corporate affiliates, including but not limited to the TalktoSanta.com and all related applications and services (collectively the "TTS Sites").
TERMS OF SERVICE: (Last Updated: November 7, 2019)
Talk to Santa (“TTS” or “we”) is a Colorado LLC that:
- Creates, produces and distributes entertainment Content (as defined below);
- Offers users the opportunity to participate in community media applications by submitting (e.g., "uploading") User Materials (as defined below) to the TTS Sites so that such User Materials can be distributed to the general public via the TTS Sites and the TTS Services (as defined below); and
- Offers users the ability to order, participate in, and download digital copies of Live Video Calls (as defined below) via the TTS Sites and the TTS Services (as defined below).
1. CERTAIN DEFINITIONS:
s used herein, the following capitalized terms shall have the meanings set forth as follows:
"Content" means and includes, without limitation, photos, images, artwork, graphics, videos, audios, animations, text, editorials, comments, writings, personal information, music, liner notes, lyrics, and other elements and materials, in any media or format now known or hereinafter devised, whether physical, electronic, digital, analog or otherwise.
"Collaborative Content" means any customized Content that results from Users incorporating User Materials into TTS Content (as defined below) as the functionality of the TTS Sites and TTS Services may allow and enable from time to time. An example of Collaborative Content would be a "TalktoSanta" video.
"TTS Content" means any and all Content (excluding User Materials) made available on the TTS Sites and/or through the TTS Services, including Content owned or controlled by TTS and/or its corporate affiliates, as well as Content licensed or otherwise provided to TTS by Licensors/Suppliers/Sponsors (as defined below). .
"TTS Services" means any and all services, tools, Software (as defined in Section 22), applications and functionalities as may be provided on the TTS Sites from time to time.
"Licensors/Suppliers/Sponsors" means any and all third parties that make available to TTS (pursuant to a license or otherwise) their proprietary Content, products or services for use, deployment, display, performance and/or distribution via the TTS Sites. For the avoidance of doubt, the term "Licensors/Suppliers" includes third parties that place, display or distribute their advertising, promotional or sponsorship Content on the TTS Sites.
“Live Video Call” means an individualized, private, online video-messaging session between a User and an individual contracted by TTS to provide personalized interactions (the “Performer”) using personal information voluntarily provided by the User.
"Trademarks" means any and all marks, brands, logos, designs, character names, location names, slogans, catch words and phrases, business names, trade names, trade dress, packaging designs, label designs, webpage layouts, look and feel, and other indicia of source, origin or identification, owned or controlled by TTS, its corporate affiliates, and/or Licensors/Suppliers. Any and all Trademarks owned or controlled by TTS and/or its corporate affiliates, including, without limitation, the TTS name and logos and characters, and the layout and design of the TTS Sites, are referred to hereinafter as "TTS Trademarks"; and any and all Trademarks owned or controlled by Licensors/Suppliers, including, without limitation, those listed in the legal notices referenced in Section 2 below, are referred to hereinafter as "Licensors/Suppliers Trademarks."
"User Materials" means Content which Users upload, submit, record, stream, distribute or otherwise make available via the TTS Sites and/or through the TTS Services, but excluding any and all TTS Content.
2. LICENSORS/SUPPLIERS NOTICES & DISCLAIMERS
Please click here to view the special notices and disclaimers regarding TTS’s current Licensors/Suppliers. Such notices and disclaimers constitute an integral part of this Agreement.
This Agreement shall remain in full force and effect for as long as the User uses any of the TTS Sites or TTS Services, whether as a Visitor, Registered User, Live Video Call Purchaser or Member ("Term"). User may terminate his/her free account or membership at any time, for any reason by following the instructions available in the Help section (click here). TTS may terminate your free account or membership at any time, for any reason, effective immediately upon sending notice to you at the email address you provided during the account set-up process, or such other email address as you may subsequently provide to TTS. If TTS terminates the User’s free account or membership in the Service due to a breach of this Agreement, User shall not be entitled to the refund of any unused portion of membership fees (if any). Even after the free account and/or membership is terminated, this Agreement will remain in full force and effect, provided, however, that User Materials submitted by User may no longer be accessible on the TTS Sites once User’s account has been cancelled.
Notwithstanding the foregoing, User acknowledges that once the User Materials are integrated into a TTS production (e.g., photos, audio files or videos integrated within an animation, promotion, video or any TTS production, regardless of media format), all of the licenses for such materials, as granted in Sections 8 and 9 of this Agreement, shall extend in perpetuity, meaning that TTS will have the perpetual right throughout the world to exploit such TTS production embodying the User Materials in any and all media now known or hereafter devised.
By using the TTS Services and/or by becoming a Member, User acknowledges that TTS reserves the right to charge payment for the TTS Services and the right to terminate a Registered User’s account or Member’s membership should User breach this Agreement or fail to pay for the Service, as required by this Agreement. TTS’s subscription fees at registration (if any) may change from time to time.
4. ELIGIBILITY; LIMITED USER LICENSE FOR TTS CONTENT:
Use of the TTS Sites or TTS Services is void where prohibited by law. By signing up to become a Registered User or Member on any of the TTS Sites or TTS Services, you represent and warrant that:
- All registration information submitted directly by you or via third-party sign-on service (e.g., Facebook Connect) is truthful and accurate and you agree to maintain the accuracy of such information;
- You are at least 13 years of age; and
- Your use of the TTS Sites and TTS Services does not violate any applicable law or regulation. Your account information and data may be deleted without warning if it is discovered that you have misrepresented your age or any other account and/or membership data.
Subject to your strict compliance with this Agreement and except as otherwise expressly permitted by this Agreement or by TTS, TTS grants you a limited, personal, non-exclusive, non-commercial, revocable, non-assignable and non-transferable license to download, view and/or play one copy of the TTS Content (excluding source and object code) for your personal, non-commercial use only, PROVIDED that:
- you maintain all copyright and other proprietary notices contained in the TTS Content or any copy you may make of the TTS Content;
- you do not use the TTS Content in a manner that suggests an association with TTS or any of its Licensors/Suppliers or any of their products, services or brands;
- you do not modify the TTS Content;
- you do not allow or aid or abet any third party (whether or not for your benefit)
- to copy or adapt the object code of any of the TTS Sites or TTS Services or
- reverse engineer, decompile, reverse assemble, modify or attempt to discover any source code associated with any of the TTS Sites or TTS Services or other products or processes accessible through the TTS Sites or TTS Services; and
- you do not insert any code or product to manipulate the TTS Content in any way that affects any User’s experience. You also agree that you will not:
- use any robot, spider, rover, scraper, or any other data mining technology or automatic or manual process to monitor, cache, frame, mask, extract data from, copy or distribute the TTS Content (except as may be a result of standard search engine or internet browser usage), nor will you
- modify, frame, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate to any third party or on any third-party web site, or otherwise use the TTS Content in any way for any public or commercial purpose except as expressly permitted by this Agreement or by TTS.
5. USER CONDUCT:
All of the TTS Sites, TTS Content, and TTS Services are solely for your personal use, and corporate or commercial use is expressly prohibited. You are solely responsible for all User Materials posted or distributed by you or through your account with TTS, including any email messages, and for all your interactions with other Users.
User agrees to act responsibly in a manner demonstrating the exercise of good judgment. For example and without limitation, User agrees not to:
- violate any applicable law or regulation;
- submit any materials that conflict with any of User’s representations and warranties set forth in Section 11 of this Agreement;
- infringe the rights of any third party, including without limitation, intellectual property, privacy, publicity and/or contractual rights;
- use any content or information available on the TTS Sites or through the TTS Services for any unauthorized purpose;
- interfere with or damage any of the TTS Sites or TTS Services, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial of service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology;
- use any of the TTS Sites or TTS Services to transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others, personal contact information or account numbers, or any defamatory materials of any kind, except where User has obtained express permission from such other person or entity in connection with any of the foregoing;
- use any of the TTS Sites or TTS Services in connection with the distribution of unsolicited commercial e-mail ("Spam") or advertisements;
- "stalk" or harass any other user of the TTS Sites or TTS Services;
- harass, threaten, or verbally abuse the Performer during a Live Video Call;
- collect or store any information about any other user other than in the course of the permitted use of the TTS Sites and TTS Services;
- use any of the TTS Sites or TTS Services for any commercial purpose whatsoever (including, without limitation, to research, advertise, market, promote, sell or otherwise exploit any product or service);
- sell or otherwise transfer any User information (e.g., user profiles) or other user’s User Materials); or
- assist any third party in doing any of the foregoing. TTS may terminate the accounts and/or memberships of Users who violate the foregoing, and may prohibit them from creating new accounts with TTS. For any Users who TTS determines, in its sole discretion, are repeat infringers of third-party intellectual property rights, TTS will terminate their accounts and/or memberships, as the case may be, and prohibit them from creating new accounts with TTS. User is solely responsible for User’s interactions with other users of the TTS Services. TTS will not be responsible for any damage or harm resulting from User’s interactions with other users of the TTS Services. TTS reserves the right, but shall have no obligation, to monitor interactions between User and other users of the TTS Services and take any action in good faith to restrict access to or the availability of any material that TTS or another user of the TTS Services may consider to be obscene, lewd, defamatory, lascivious, filthy, excessively violent, harassing or otherwise objectionable.
User’s TTS account may NOT include any photographs that contain nudity, violence, or offensive subject matter, as determined in TTS’s sole discretion. Information provided by other TTS Users may contain inaccurate, inappropriate and/or offensive material, and TTS assumes no responsibility or liability for this material.
The TTS Sites and TTS Services allow, among other things, Users who are 13 or older to post personal content (e.g., photographs and information about themselves and others for whom they have the authority or permission to post photos and information) for public review and comment, both in public forums and with private messaging. Accordingly, by submitting personal content on any of the TTS Sites or through any of the TTS Services, User hereby waives any and all privacy expectations (including the privacy expectations of any other individual who appears in the submitted content) with respect to TTS’s use of such content. If User does not wish to have personal content viewable by others, User should not use the TTS Sites and TTS Services.
Some of the TTS Sites and TTS Services, such as TalktoSanta.com, are designed for joint participation by parents and their children. Children should only access and use such sites and services with the participation and supervision of their parents. Only parents are allowed to create accounts and profiles and post personal content on such sites and services, and TTS does not knowingly collect personal information directly from children on such sites and services.
User shall at all times retain all right, title and interest in and to the User Materials provided by User hereunder (including, without limitation, the copyrights therein and thereto), subject to the non-exclusive rights granted to TTS under this Agreement. User is free to grant similar rights to others during and after the Term of this Agreement. For the avoidance of doubt, when User submits User Materials on any of the TTS Sites or through any of the TTS Services, User acknowledges that third parties may use the User Materials as described herein.
User acknowledges and agrees that, as between TTS and User, TTS and/or its Licensors/Suppliers (as the case may be) are, and shall at all times remain, the sole and exclusive owner(s) of all right, title and interest (including, without limitation, copyright), in and to the TTS Sites, TTS Services, all Trademarks, and all TTS Content, and that User’s right to use the TTS Sites, TTS Services, Trademarks, and TTS Content, as set forth herein, shall be for personal, non-commercial use only and shall not in any way transfer or convey any ownership rights or other proprietary interests therein to User.
8. LICENSE FOR USER MATERIALS:
Unless expressly otherwise stated in this Agreement or otherwise agreed between User and TTS in a writing signed by both parties, User hereby grants to TTS a worldwide, royalty-free, sub-licensable, transferable, assignable, non-exclusive license to do the following things during the Term (and in perpetuity with respect to any TTS production as set forth in Section 3 of this Agreement):
- to prepare and encode User Materials, or any portion thereof for electronic, digital and/or other transmission, manipulation and exhibition in any format and by any means now known or hereafter devised;
- to display, copy, reproduce, create derivative works of, exhibit, publicly perform, broadcast, rebroadcast, transmit, retransmit, promote, distribute through any means (including electronic, analog and digital), and publish and/or otherwise exploit, in digital or physical form, any or all of the User Materials, including any portion thereof, and to include any such materials in compilations or other works, by any and all means in all media now known or hereinafter created, anywhere in the world, and for any purpose (for avoidance of doubt, the rights granted to TTS hereunder include the rights to make User Materials available on the TTS Sites, third-party websites and electronic devices);
- to modify, adapt, change or otherwise alter and create derivative works of the User Materials and use the User Materials as described in Section 6(2); and
- to license and/or sublicense to any third party any of the foregoing rights in the User Materials, or any part or element thereof, subject to the terms and conditions of this Agreement.
User hereby agrees not to assert any right, title, or interest in any and all Trademarks and TTS Content with which User Materials may be combined or into which all or any portion of User Materials may be incorporated. User acknowledges and agrees that all right, title and interest (including, without limitation, copyright, trademark and other intellectual property rights) in and to any and all Trademarks and TTS Content shall remain the sole and exclusive property of TTS and/or Licensors/Suppliers (as the case may be). For the avoidance of doubt, with respect to any and all Collaborative Content, Users acknowledges and agrees that their rights therein and thereto shall be expressly limited to the User Materials contained in such Collaborative Content and shall in no event extend to any TTS Content or any Trademarks contained or embodied therein.
9. LICENSE FOR USE OF NAME AND LIKENESS:
Unless expressly otherwise stated in this Agreement or otherwise agreed between User and TTS in a writing signed by both parties, User hereby grants to TTS a worldwide, royalty-free, sub-licensable, transferable, assignable, non-exclusive license to use: (a) User’s name(s), photograph(s), likeness(es), voice(s), performance(s), and biographical materials (to the extent contained or embodied in the User Materials) and (b) any other individual’s name(s), photograph(s), likeness(es), voice(s), performance(s), and biographical materials, where such other individual appears in the User Materials, in connection with the distribution, exploitation, promotion, marketing and advertising of the User Materials, as described hereunder, during the Term (and in perpetuity with respect to any TTS production as set forth in Section 3 of this Agreement).
User also agrees not to assert any privacy, publicity, moral or similar rights held by User (and to the extent any other person(s) whose name(s), photograph(s), likeness(es), voice(s), performance(s) and/or biographical materials are embodied in the User Materials, User represents and warrants that it has obtained all necessary consents from such third parties consistent with the full scope of rights granted to TTS pursuant to this Agreement, and User agrees that such persons shall not assert of any intellectual property, privacy, publicity, contractual, moral or similar rights, or make any claims that any User Materials are objectionable or otherwise defamatory) under the laws of the United States and any other country in connection with the exploitation of such materials as described hereunder.
10. THIRD PARTY CONTENT & SITES:
The TTS Sites and TTS Services may contain Content of third parties, including Content provided by Licensors/Suppliers and User Materials (collectively "Third Party Content"), as well as links to third party web sites ("Third Party Sites"). TTS does not control Third Party Content and Third Party Sites and makes no representations or warranties about them. User understands that by using the TTS Sites and TTS Services, he/she may be exposed to Third Party Content or Third Party Sites that are false, offensive, indecent or otherwise objectionable. Under no circumstances will TTS be liable in any way for any Third Party Content or Third Party Sites, including, without limitation, any errors or omissions in any Third Party Content or Third Party Sites or any loss or damage of any kind incurred as a result of the use of any Third Party Content or Third Party Sites. User agrees to bear all risks associated with using or relying upon Third Party Content or Third Party Sites, including without limitation, profiles of other Users.
11. PROPRIETARY RIGHTS:
User acknowledges and agrees that all TTS Sites, TTS Services, Trademarks and TTS Content are the property of TTS and/or Licensors/Suppliers (as the case may be) and are protected by rights of publicity, copyright, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. Except as expressly authorized by TTS and/or Licensors/Suppliers (as applicable), User may not sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from, any Trademark or TTS Content, or otherwise use any Trademark or TTS Content in any way. User also agrees not to retrieve data or other content or any materials from the TTS Sites to create or compile, directly or indirectly, a collection, compilation, database, directory or the like, whether by manual methods, through the use of "bots" or otherwise. User further agrees not to use any Trademark or TTS Content as metatags on other web sites. Moreover, User agrees not to display any of the TTS Sites in a frame (or any of our content via in-line links) without TTS’s express written permission.
12. LINKING POLICY:
User may link from his/her/its own website to one or more TTS Sites, PROVIDED, however, that he/she/it:
- must NOT frame or create a browser or border environment around any of the TTS Content on the linked TTS Site or otherwise mirror any part of the linked TTS Site;
- must NOT imply that TTS and/or any of its Licensors/Suppliers or the linked TTS Site is endorsing or sponsoring User, User’s site or any User product or service, unless expressly authorized in writing by TTS and/or its Licensors/Suppliers;
- must NOT present false information about, or disparage, tarnish, or otherwise, in TTS’s sole opinion, harm TTS and/or any of its Licensors/Suppliers in any way;
- must NOT use any TTS Trademarks without the prior written permission of TTS, or use any Licensors/Suppliers Trademarks without the prior written permission of their respective owners; and
- must NOT contain Content that could be construed as distasteful, offensive or controversial or otherwise objectionable (in our sole opinion). By linking to any of the TTS Sites, User agrees to be bound by and comply with all of the above linking restrictions and requirements.
Notwithstanding anything to the contrary contained in this Agreement, TTS reserves the right to prohibit and deny linking to any of the TTS Sites for any reason in its sole and absolute discretion, even if the linking complies with all of the restrictions and requirements described above.
13. USERNAME AND PASSWORD:
Eligible User who creates a TTS account will select a username and password when completing the registration process or create an account using third-party single sign-on services (e.g. Facebook Connect). User is solely and fully responsible for maintaining the confidentiality of his/her username and password, or third-party credentials, for accessing TTS and will be solely and fully responsible for all activities that occur under that account to access the TTS Sites. User agrees to: (a) immediately notify TTS of any unauthorized use of User’s username and password or any other breach of security and (b) log off from his/her account at the end of each session. TTS cannot and will not be liable for any loss or damage arising from User’s failure to comply with this Section 13.
14. REPRESENTATIONS AND WARRANTIES:
User represents and warrants that:
- User has the full right and power to enter into and perform this Agreement and to grant TTS and Licensors/Suppliers all rights to use the User Materials (including individuals’ names, likenesses, voices, and other elements of identity embodied therein) as contemplated in this Agreement, including, without limitation, the license grants in Sections 8 and 9 of this Agreement;
- User exclusively owns and/or controls all right, title and interest (including, without limitation, copyright) in and to the User Materials, and has secured all necessary third-party consents, rights, licenses and permissions, if any, required in order for User to enter into and perform this Agreement and to grant TTS and Licensors/Suppliers all rights to use the User Materials (including individuals’ names, likenesses, voices, and other elements of identity embodied therein) as contemplated in this Agreement (including, without limitation, consents and permissions from owners of any elements that are used or otherwise incorporated into the User Materials);
- the User Materials (and TTS’s use thereof as contemplated under this Agreement) do not and will not infringe on any rights of any third party, including any trademark, copyright, patent, trade secret, right of privacy or publicity or moral rights of any third party;
- all information that User has provided or will provide to TTS is true and complete;
- the User Materials do not and will not violate any law, statute, ordinance or regulation;
- the User Materials do not and will not:
- be defamatory, libelous, slanderous, or threatening;
- contain sexually explicit content that is pornographic, obscene, harmful to minors, violations of child pornography or child sexual exploitation laws;
- denigrate any ethnic, racial, sexual or religious group by stereotypical depiction or otherwise;
- exploit images or the likeness of any individual other than User (except where User has obtained express permission from such other individual(s) for such exploitation);
- encourage or otherwise depict glamorized drug use;
- make use of offensive language or images;
- promote physical harm of any kind against any individual or group or characterize violence as acceptable, glamorous or desirable;
- contain any personal contact information of User or any other individual;
- promote an illegal or unauthorized copy of another person’s copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated music or links to pirated music files;
- provide instructional information about illegal activities such as making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses;
- solicit passwords or personal identifying information for commercial or unlawful purposes from other users; and/or
- engage in any commercial activities whatsoever and/or sales without TTS’s prior written consent; and
- the User Materials do not and will not contain any viruses or other programming routines that may detrimentally interfere with computer systems or data, whether those of TTS or any third party.
15. USER DISPUTES:
You are solely responsible for your interactions with other Users. TTS reserves the right, but has no obligation, to monitor disputes between you and other Users.
16. DOWNLOADABLE ITEMS; COLLABORATIVE CONTENT:
To the extent that TTS makes any applications, software or functionalities available for download or use from or through any of the TTS Sites or TTS Services (the "Downloadable Items"), such Downloadable Items are the copyrighted work (as between you and TTS) of TTS and/or its Licensors/Suppliers. Your use of the Downloadable Items may be governed by additional terms and conditions, which may be included with the Downloadable Items. Please carefully read any such additional terms and conditions to determine the full extent of conditions governing the use of such Downloadable Items.
If you install a Downloadable Item that is a software application, you consent to the download of such software to your computer or device and accept this Agreement and any additional terms and conditions related to such software application. With respect to any User Materials that you download from or through any of the TTS Sites or TTS Services, you are responsible for all licensing, reporting and payment obligations of any kind to third parties in connection with such downloaded User Materials (including, without limitation, any such obligations that may arise from use by TTS or its Licensors/Suppliers of such User Materials as authorized in this Agreement). You also agree that any Downloadable Items you obtain from any of the TTS Sites or TTS Services (whether for free or for a fee) are only provided to you for your personal, non-commercial use and are not meant for you to further distribute.
Your use of any Collaborative Content is subject to the following additional terms and conditions:
- the permission for you to use TTS Content to generate Collaborative Content or otherwise in association with User Materials is expressly limited to TTS Content specifically made available by TTS for that purpose, and may be revoked by TTS at any time without notice or liability to you;
- your use of Collaborative Content is subject to this Agreement and any additional terms and conditions as TTS may from time to time prescribe;
- you may NOT make any commercial use of any Collaborative Content or of any TTS Content embodied in any Collaborative Content, in whole or in part, or sell, lease, hypothecate, transfer, license, distribute, reproduce, encumber or otherwise exploit same, in whole or in part, EXCEPT that you may use the TTS Sites and TTS Services to generate and engage in Viral Distribution (as defined below) of Collaborative Content, but in each case only to the extent expressly permitted by this Agreement or otherwise by TTS; as used herein, "Viral Distribution" means, for non-commercial purposes only:
- sending Collaborative Content to friends, acquaintances at no charge by e-mail or other forms of digital delivery;
- reproducing copies of Collaborative Content for personal use; and
- posting and displaying links to Collaborative Content on a personal web site or on a third party web site that permits posting of such links at the direction of users subject to its terms and conditions, provided that such third party web site does not charge for access to the Collaborative Content or associate products, services or advertising with the Collaborative Content;
- you must always include and keep intact, and not remove or alter, any and all of TTS’s and its Licensors/Suppliers’ trademarks, copyrights and other proprietary rights notices, legends, watermarks, and other markings contained or embedded in or otherwise accompanying Collaborative Content (or any TTS Content portion thereof), and you agree to comply with all usage and viral distribution guidelines that may be prescribed by TTS from time to time; and
- YOU AGREE NOT TO ENGAGE IN SPAMMING OR OTHER UNLAWFUL OR CONTROVERSIAL BEHAVIOR IN CONNECTION THEREWITH.
User agrees to defend, indemnify, reimburse and hold TTS and its parent, subsidiary and affiliated entities, its Licensors/Suppliers, and its and their respective members, managers, officers, directors, representatives, employees, agents, successors, designees, licensees, sub-licensees and assigns harmless from and against any and all liability, loss, damages, judgments, costs and expenses (including reasonable attorney’s fees, costs and expenses and court costs) arising out of or related to:
- User’s use of the TTS Sites and TTS Services;
- TTS’s use of the User Materials;
- any breach or alleged breach of User’s representations and warranties and/or any breach, alleged breach or violation of the notices, terms and conditions hereof; and
- User’s violation or alleged or threatened violation of any laws, rules or regulations, or any rights of a third party, including, without limitation, any trademark, copyright, patent, trade secret, defamation, right of privacy or publicity or moral rights of any third party, arising from the submission and/or use of User Materials as contemplated hereunder.
18. TTS’S PERFORMANCE:
User acknowledges and agrees that the operation of the TTS Sites may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and TTS shall not be responsible to User or others for any such interruptions, errors or problems or an outright discontinuance of the TTS service. There are no assurances whatsoever that any of the User Materials or any part or element thereof shall actually be utilized on any of the TTS Sites or if so utilized continue to be available for any particular time. TTS has the right, in TTS’s sole and absolute discretion, to remove from the TTS Sites at any time the User Materials or any part thereof and/or to revoke any sublicense granted by TTS to any affiliate or unaffiliated third party. Notwithstanding the foregoing, TTS does not control the content of the User Materials and does not have any obligation to monitor such content for any purpose. User acknowledges that User is solely responsible for all content submitted to the TTS Sites. The TTS Sites may be discontinued at any time, with or without reason and without any liability to User or to any third party for any modification or discontinuance of the TTS Services.
19. NO WARRANTY:
ALL OF THE TTS SITES, TTS SERVICES, AND TTS CONTENT ARE PROVIDED ON AN "AS IS", "AS AVAILABLE" AND "WITH ALL FAULTS" BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TTS AND ITS LICENSORS/SUPPLIERS DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO: UNINTERRUPTED OR CONTINUOUS AVAILABILITY OF THE TTS SITE(S) AND TTS SERVICES, AND IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT WITH RESPECT TO THE TTS SITES AND TTS SERVICES.
IN ADDITION, ALTHOUGH TTS INTENDS TO TAKE REASONABLE STEPS TO PREVENT THE INTRODUCTION OF VIRUSES OR OTHER DESTRUCTIVE MATERIALS TO THE TTS SITES, AND WHETHER OR NOT TTS IMPLEMENTS THE AFOREMENTIONED REASONABLE PROTECTIONS, TTS DOES NOT WARRANT THAT THE TTS SITES, ANY PART THEREOF, OR ANY INFORMATION OR OTHER MATERIAL ACCESSIBLE THROUGH THE TTS SITES IS FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER HARMFUL COMPONENTS. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES, SO THE ABOVE DISCLAIMER MAY NOT APPLY TO THE EXTENT SUCH JURISDICTION’S LAW IS APPLICABLE TO THESE TERMS.
BY ACCESSING OR USING ANY OF THE TTS SITES OR TTS SERVICES, YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE SUCH TTS SITES OR TTS SERVICES.
20. NO LIABILITY FOR THIRD PARTY USE:
TTS DISCLAIMS ALL RESPONSIBILITY AND LIABILITY FOR ANY THIRD-PARTY USE OF THE USER MATERIALS MADE AVAILABLE ON THE TTS SITES BY YOU PURSUANT TO THE TERMS OF THIS AGREEMENT. YOU SHALL BE SOLELY RESPONSIBLE FOR SEEKING RELIEF FOR ANY UNAUTHORIZED USE OF YOUR USER MATERIALS BY A THIRD-PARTY, AND NOT FROM TTS OR ANY OF ITS LICENSORS/SUPPLIERS. THIS MEANS, AMONG OTHER THINGS, THAT IF ANOTHER PERSON OBTAINS YOUR USER MATERIALS FROM TTS (WHETHER OR NOT WITH TTS’S PERMISSION), AND USES THOSE MATERIALS IN A WAY NOT AUTHORIZED PURSUANT TO THE LICENSES GRANTED HEREUNDER, YOU WILL SEEK REDRESS FROM THAT OTHER PERSON AND NOT FROM TTS OR ANY OF ITS LICENSORS/SUPPLIERS, AND THAT YOU WILL NOT HOLD TTS OR ANY OF ITS LICENSORS/SUPPLIERS RESPONSIBLE OR LIABLE FOR SUCH UNAUTHORIZED USE.
21. EXCLUSION OF DAMAGES:
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT (INCLUDING NEGLIGENCE) SHALL TTS, ITS OFFICERS, DIRECTORS, MEMBERS, PARENTS, AFFILIATES, SUBSIDIARIES, LICENSEES, ASSIGNS, SUCCESSORS, AGENTS, REPRESENTATIVES, EMPLOYEES OR LICENSORS/SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING OUT OF AN ACTION UNDER CONTRACT, NEGLIGENCE OR ANY OTHER THEORY AND DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS, INCIDENTIAL DAMAGES, CONSEQUENTIAL DAMAGES, PUNITIVE DAMAGES, EXEMPLARY DAMAGES), WHETHER OR NOT TTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE TTS SITES AND/OR THE TTS SERVICES. IN NO EVENT SHALL TTS’S TOTAL LIABILITY TO USER UNDER THIS AGREEMENT FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY EXCEED $200. USER EXPRESSLY WAIVES ANY AND ALL RIGHT TO SEEK OR OBTAIN EQUITABLE OR INJUNCTIVE RELIEF RELATING IN ANY WAY TO THIS AGREEMENT, THE SERVICES AND/OR THE USER MATERIALS (INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO ANY USE OF THE USER MATERIALS BY TTS). THE PARTIES ACKNOWLEDGE AND AGREE THAT TTS HAS ENTERED INTO THIS AGREEMENT IN RELIANCE ON THE LIMITATIONS OF LIABILITY SPECIFIED HEREIN, WHICH ALLOCATE THE RISK BETWEEN USER AND TTS, AND FORM THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.
22. EXPORT CONTROLS:
Software from the TTS Sites (the "Software") is further subject to United States export controls. No Software may be downloaded from the TTS Sites or otherwise exported or re-exported
- into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria, or any other Country to which the U.S. has embargoed goods or
- to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading or using the Software, 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 such list.
23. GOVERNING LAW, VENUE AND JURISDICTION:
You agree that the laws of the State of Delaware, without regard to principles of conflict of laws, will govern your use and purchase of products and services and these Terms of Service, and any dispute of any sort that might arise between you and TTS or any of our affiliates. With respect to any disputes or claims not subject to arbitration (as set forth below), you agree not to commence or prosecute any action in connection therewith other than in the state and federal courts located in the state of Colorado, and BOTH YOU AND TTS IRREVOCABLY consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction in the state and federal courts located in the state of Colorado.
YOU AND TTS AGREE THAT THE SOLE AND EXCLUSIVE FORUM AND REMEDY FOR ANY AND ALL DISPUTES AND CLAIMS RELATING IN ANY WAY TO OR ARISING OUT OF THESE TERMS OF SERVICE OR THE SALE OF ANY PRODUCT OR SERVICE BY TTS SHALL BE FINAL AND BINDING ARBITRATION, except that, to the extent that either of us has in any manner infringed upon or violated or threatened to infringe upon or violate the other party's patent, copyright, trademark or trade secret rights, such other party may seek injunctive or other appropriate relief.
rbitration under this Agreement shall be conducted by the American Arbitration Association (the "AAA") under its Commercial Arbitration Rules and, in the case of consumer disputes, the AAA's Supplementary Procedures for Consumer Related Disputes (the "AAA Consumer Rules") (collectively the "AAA Rules"). The location of the arbitration and the allocation of costs and fees for such arbitration shall be determined in accordance with such AAA Rules and shall be subject to the limitations provided for in the AAA Consumer Rules (for consumer disputes). If such costs are determined to be excessive in a consumer dispute, TTS will be responsible for paying all arbitration fees and arbitrator compensation in excess of what is deemed reasonable. The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction.
To the fullest extent permitted by applicable law, NO ARBITRATION OR CLAIM UNDER THESE TERMS OF SALE SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SITE OR ANY TTS PRODUCTS OR SERVICES, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. In no event shall any claim, action or proceeding by you related in any way to any products or services purchased by you on or through any of the TTS Sites be instituted more than three (3) years after the cause of action arose.
TTS shall have the right to assign this Agreement in whole or in part to any person or business entity. User may not assign User’s rights or delegate User’s obligations under this Agreement without the prior written consent of TTS.
All copyright infringement notifications to TTS in regards to any Content (including User Materials) on the TTS Sites must be made in accordance with the section entitled "NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT" contained in TTS’s Legal Notices (click here).
All other notices, requests and other communications ("Communications") under this Agreement must be in writing and sent to Talk to Santa, 900 South Wiley Court, Superior CO 80027, ATTN: Legal Department. Communications shall be deemed received:
- for Communications sent by registered or certified mail, postage prepaid, return receipt requested or by Federal Express or other reputable overnight courier service, on the date of receipt as indicated on the return receipt;
- for Communications sent by personal delivery, on the date of personal delivery; and
- for Communications sent by facsimile, upon transmission subject to telephone confirmation of receipt.No other form of notice shall be accepted under this Agreement.
27. ENTIRE AGREEMENT:
28. STATUTE OF LIMITATIONS:
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
TTS reserves the right to change the terms of this Agreement from time to time in its sole discretion. In the event of such changes, TTS will post the changes on the TTS Sites and/or notify User via email. Also, TTS may ask User to review and consent to the changes at the time of User’s next account login or at the time of his/her next visit to the Site. By continuing to use any of the TTS Sites or TTS Services after such notice and consent, User agrees to be bound by the changes to this Agreement and the new terms of the Agreement shall govern all prior and future submissions of User Materials.