SantaCall - Terms of Use

Last Updated: 6th November, 2009

1. Entering into this Agreement: This is an agreement ("Agreement") between you ("you" or "your") as a user, for your use of the SantaCalls Website ("SantaCall"), and Cookie Time Limited ("Cookie Time Limited", "we", "us", or "our"), and constitutes a valid and binding agreement between you and Cookie Time Limited.
2. Electronic Signatures and Agreement(s): You acknowledge and agree that by using Santa Call, you are entering into a legal and binding contract. You hereby agree to the use of electronic communication in order to enter into contracts and place orders and other records and to the electronic delivery of notices, policies and records of transactions initiated or completed through Santa Call. Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted by law.
3. Modification to this Agreement: SantaCall may from time to time update this Agreement by providing such revised Agreement to you or by publishing the revised Agreement on SantaCall at the bottom of the home page. By using SantaCall you agree to be bound by these Terms and Conditions and any new versions hereof.
  IF YOU DO NOT ACCEPT ALL THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT, YOU MUST NOT JOIN OR USE THIS WEBSITE.
4.

Other Terms and Definitions: The following capitalized definitions are being used, in singular as well as plural in this Agreement.

Term Definition
Affiliate Any corporation, company or other entity that directly or indirectly controls, is controlled by, or is under common control with, Cookie Time Limited. For the purpose of this definition, the word "control" shall mean the direct or indirect ownership of more than fifty percent (50%) of the outstanding voting stock of the corporation, company, or other entity.
Sponsor A company that has provided financial resources to Cookie Time Limited to enable the SantaCall service to operate in exchange for advertising and commercial endorsement as displayed on this website.
Agreement This agreement as it may be renewed, modified and/or amended from time to time.
Documentation Any documentation provided by us electronically, by email or through or on SantaCall..
Effective Date The date on which this Agreement is entered into by you by your use of this Website.
IP Rights Any and all intellectual property rights including, but not limited to, copyrights, trademarks and patents, as well as know how and trade secrets contained in or relating to SantaCall or the Documentation.
Santa Phone Call A call out to a landline phone number in New Zealand, (not mobile), made by a computer, where a pre-recorded voice will pretend to be Santa Claus and talk to your child and ask them to leave their Christmas wish list, after which the child's recorded wish list will be emailed to you.
Cookie Time Limited Staff The officers, directors, employees and agents of Cookie Time Limited or its Affiliates, or any other persons hired by Cookie Time Limited or its Affiliates in relation with the execution of this Agreement.
Cookie Time Limited. A limited liability company established under the laws of New Zealand that owns the IP Rights and with which you are entering into this Agreement.
Website The SantaCall website.
You You, the end user of SantaCall, an individual who uses SantaCall for the express purpose of generating a Santa Phone Call for your child.
5. Using this Website: You are able to use this Website throughout the months of November and December.
6. Your Confidential Information and your Privacy: We are totally committed to protecting and respecting your privacy and the confidentiality of the information you enter on SantaCall.  The "Privacy Policy" as published on SantaCall at the bottom of the Home page, applies to the use of and access to the information by any party, including us. Please review our Privacy Policy for more details.
7. Security of Information: Unfortunately, no data transmission over the Internet can be guaranteed as totally secure. All information which you transmit to us is transmitted at your own risk.
8. Acceptable Site Use (Summary): You are responsible for ensuring that all information you provide on this Website is current, accurate and complete. The information you provide to us must be true and accurate.
9.

Acceptable Site Use (Detailed): SantaCall may be used only for lawful purposes by individuals seeking to receive or give a Santa Phone Call. You may not:

  1. Setup a Santa Phone Call to call a phone number other than your own;
  2. Setup a Santa Phone Call to a phone number outside New Zealand;
  3. Setup a Santa Phone Call to a mobile phone number;
  4. Setup multiple Santa Phone calls other than to provide a single Santa Phone Call to each of your children.
  5. Provide any incomplete, false, inaccurate or misleading information;
  6. Delete or revise any information posted by any other person or entity;
  7. Use the Website to transmit, distribute, store or destroy material in violation of any law or regulation;
  8. Use the Website in a manner that will infringe the copyright, trademark, or other intellectual property rights of others or violate the privacy, publicity or other personal rights of others, or that is defamatory, obscene, threatening, abusive or hateful;
  9. Violate or attempt to violate the security of the Website;
  10. Access data not intended for you or log into a server or account which you are not authorized to access;
  11. Attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures;
  12. Attempt to interfere with service to any user, host or network, including, without limitation, via means of submitting a virus to the Website, overloading, "flooding", "spamming", "mailbombing" or "crashing";
  13. Use the Website for commercial purposes;
  14. Use the Website in a way that is unlawful, harms Cookie Time Limited or any Affiliates.
9.1 Violations: Violations of any prohibition set forth in section 9 above, or of any system or network security may result in civil or criminal liability. We intend to investigate occurrences which may involve such violations and may involve, and co-operate with, law enforcement authorities in prosecuting users who are involved in such violations. We may trace offenders via your IP address.
10. New Versions of SantaCall: We, at our sole discretion, reserve the right to add or remove features or functions, or to provide programming fixes, updates and upgrades, to SantaCall. You acknowledge and agree that we have no obligation to make available to you any subsequent versions of SantaCall. You also agree that you may have to enter into a new version of this Agreement in order to use new versions of SantaCall. Furthermore, you acknowledge and agree that We, at our sole discretion, may modify or discontinue or suspend your ability to use any version of SantaCall. We also may suspend, terminate or disable, without prior notice at any time, any Santa Phone Call you may already have created and / or accessed.
11. Termination of Access: Cookie Time Limited may terminate this Agreement at any time, with or without cause, by providing notice to you and/or by preventing your access to SantaCall. Upon such termination your right to use SantaCall will immediately cease.
12. Your Representations, Warranties and Indemnification of Cookie Time Limited
12.1 Representations: You represent and warrant that you are authorized to enter into this Agreement and comply with its terms. Furthermore, you represent and warrant that you will at all times comply with your obligations hereunder, and all laws, regulations and policies that may apply to your use of SantaCall.
12.2

Your Indemnification of Cookie Time Limited: You agree to indemnify, defend and hold Cookie Time Limited, its Affiliates and the Cookie Time Limited Staff harmless from and against any and all liability and costs, including reasonable legal fees incurred by any of such parties, in connection with or arising out of your:

  1. violation or breach of any term of this Agreement or any applicable law, regulation, policy or guideline, whether or not referenced herein;
  2. violation of any rights of any third party;
  3. use or misuse of SantaCall.
13. Warrantee and Liability
13.1 COOKIE TIME LIMITED DOES NOT REPRESENT OR WARRANT THAT THE WEBSITE WILL OPERATE UNINTERRUPTED OR ERROR-FREE OR THAT THE WEBSITE, ITS SERVER AND THE EMAILS SENT BY SANTACALL ARE FREE OF COMPUTER VIRUSES OR OTHER HARMFUL MECHANISMS. IF YOUR USE OF THE WEBSITE RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, WE ARE NOT RESPONSIBLE FOR THOSE COSTS. THE WEBSITE IS PROVIDED ON AN "AS IS" BASIS WITHOUT ANY WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE AND NON-INFRINGEMENT. WE MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF THE INFORMATION, SERVICES, SOFTWARE, TEXT, GRAPHICS, AND LINKS. THERE ARE NO WARRANTIES THAT EXTEND BEYOND THE FACE OF THIS AGREEMENT.
13.2 NOTHING CONTAINED IN OR ON THE WEBSITE SHALL BE CONSTRUED AS CREATING AN GUARANTEE THAT A PHONE CALL WILL BE MADE OR RECEIVED, OR ANY EMAIL WILL BE SENT OR RECEIVED, ALSO, WE ARE NOT A GIFT OUTLET OR RETAILER IN RELATION TO SANTACALL, AND WE DO NOT REPRESENT OR WARRANT THAT ANY CHRISTMAS WISH LIST STORED OR TRANSMITTED BY SANTACALL WILL BE FULFILLED BY US WHATSOEVER.
  IN NO EVENT SHALL WE, OUR AFFILIATES OR ANY THIRD PARTIES MENTIONED ON THE WEBSITE BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INCIDENTAL AND CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) RESULTING FROM YOUR USE OR INABILITY TO USE THE WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT WE ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOU ARE DISSATISFIED WITH SANTACALL, YOU DO NOT AGREE WITH ANY PART OF THIS AGREEMENT, OR YOU HAVE ANY OTHER DISPUTE OR CLAIM WITH OR AGAINST COOKIE TIME LIMITED OR ANY OF OUR AFFILIATES OR THIRD PARTIES WITH RESPECT TO THIS AGREEMENT OR SANTACALL, THEN YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING SANTACALL.
13.4 Limitation of Liability: In the event that we are found liable for any damages incurred by you, our maximum liability to you for any and all claims arising from the use of the Website is NZ$1.00.
14. General Provisions
14.1 Copyright: This Website and its contents (including text, graphics, images and other material) is owned or licensed by Cookie Time Limited. You may not in any form or by any means adapt, reproduce, store, distribute, print, display, perform, publish, modify, enhance or create derivative works from any part of this Website, or sell or commercialize any information, products or services obtained from any part of this Website.
14.2 Trade Marks: Except where otherwise specified, any word or device to which the ™ or ® symbol is attached, is a registered trade mark. You may not use any of our trade marks in or as the whole or part of your own trade marks; in connection with any of your activities, products or services.
14.3. Linked Websites: This Website may contain links to linked websites. Those links are provided for convenience only and may not remain current or be maintained. We are not responsible for the content or privacy practices associated with linked websites. Our links to linked websites should not be construed as an endorsement, approval, recommendation, or preference by us of such linked websites or of the owners or operators of those linked websites, or of any information, graphics, materials, products or services referred to on those linked websites.
14.4 Entire Agreement: The terms and conditions of this Agreement constitute the entire agreement between you and Cookie Time Limited and will supersede and replace all prior understandings and agreements, in whatever form.
14.5 Partial Invalidity: Should any term or provision hereof be deemed invalid, void or enforceable either in its entirety or in a particular application, the remainder of this Agreement shall nonetheless remain in full force and effect.
14.6 Non Waiver: The failure of Cookie Time Limited at any time or times to require performance of any provisions hereof shall in no manner affect its right at a later time to enforce the same unless the same is explicitly waived in writing and signed by Cookie Time Limited.
15 No Assignment by You: you are not allowed to assign this Agreement or any rights hereunder.
15.1 Assignment by Cookie Time Limited: Cookie Time Limited is allowed, at its sole discretion, to assign this Agreement or any rights hereunder to any Affiliate, or any person or other entity to which Cookie Time Limited, its assets or the Website may be sold or otherwise transferred to, without giving prior notice.
15.2 Applicable Law: This Agreement shall be governed by and construed in accordance with the laws of New Zealand without giving effect to the conflict of laws or provisions of law thereof.
16 Competent Court: Any legal proceedings arising out of or relating to this Agreement will be subject to the exclusive jurisdiction of any court of law in Christchurch New Zealand.
  YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY USING SANTACALL AND/OR CONTINUING TO USE SANTACALL, YOU EXPRESSLY CONSENT TO BE BOUND BY THESE TERMS AND CONDITIONS AND GRANT TO COOKIE TIME LIMITED THE RIGHTS SET FORTH HEREIN.
   
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