Terms and Conditions of Website & Online Purchases

Terms and Conditions of Website & Online Purchases

THIS DOCUMENT CONTAINS IMPORTANT INFORMATION REGARDING BUYER RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO BUYER. PLEASE READ IT CAREFULLY.

BY PLACING AN ORDER FOR PRODUCTS FROM THIS WEBSITE, BUYER AFFIRMS THAT BUYER IS OF LEGAL AGE TO ENTER INTO THIS E-COMMERCE TRANSACTION, AND ACCEPTS TO BE BOUND BY THESE TERMS AND CONDITIONS. BUYER AFFIRMS THAT IF BUYER PLACES AN ORDER ON BEHALF OF AN ORGANIZATION OR COMPANY, BUYER HAS THE LEGAL AUTHORITY TO BIND ANY SUCH ORGANIZATION OR COMPANY TO THESE TERMS AND CONDITIONS.

BUYER MAY NOT ORDER OR OBTAIN PRODUCTS FROM THIS WEBSITE IF BUYER (i) DOES NOT AGREE TO THESE TERMS;, (ii) IS NOT THE OLDER OF (A) AT LEAST 18 YEARS OF AGE OR (B) LEGAL AGE TO FORM A BINDING CONTRACT WITH IT’S THE REAL SANTA, INC.; OR (iii) IS PROHIBITED FROM ACCESSING OR USING THIS WEBSITE OR ANY OF THIS WEBSITE’S CONTENTS OR PRODUCTS BY APPLICABLE LAW.

1. Applicability. These Terms and Conditions apply to the purchase of the services (“Product” or “Products”) through It’s The Real Santa.com (the “Site”), and are subject to change by Character Encounters, LLC d/b/a It’s The Real Santa, a State of Texas limited liability company (“It’s The Real Santa”) without prior written notice at any time. Any changes to these Terms and Conditions will be in effect as of the “Last Updated Date” referenced on the Site. By entering into an e-commerce transaction to purchase any Product through the Site (an “Order”), Buyer affirms that is has reviewed these Terms and Conditions prior to purchasing such Product. Buyer’s continued use of the Site after the “Last Updated Date” will constitute Buyer’s acceptance of and agreement to any such changes. These Terms and Conditions take precedence over any and all other terms and conditions and agreements that may be in place between It’s The Real Santa and Buyer for this Order.

2. Website Terms of Use and Privacy Policy. These Terms and Conditions are an integral part of the Website Terms of Use that apply generally to the use of the Site. By entering into any e-commerce transaction, Buyer affirms that Buyer has reviewed the Website Terms of Use and It’s The Real Santa’s Privacy Policy prior to placing an Order for Products through this Site.

3. Acceptance. All purchases by Buyer are expressly limited and conditioned upon acceptance of these Terms and Conditions, and It’s The Real Santa expressly rejects any provision, printed or otherwise contained in any Order, acceptance, confirmation, acknowledgement, or other Buyer communication which is inconsistent with, different from, or in addition to these Terms and Conditions unless specifically agreed to in writing by It’s The Real Santa. Performance under any Order does not constitute acceptance of any Buyer terms. It’s The Real Santa will not be deemed to have waived these Terms and Conditions if it fails to object to provisions submitted by Buyer. Buyer’s use of the e-commerce Site for any purchase constitutes its acceptance to these Terms and Conditions. If Buyer places an Order under these Terms and Conditions, It’s The Real Santa will have an opportunity to review and make comments to the contents of the Order. It’s The Real Santa’s comments will be deemed accepted and incorporated into the Order unless Buyer specifically objects in writing within ten (10) days. It’s The Real Santa reserves the right to reject any Order submitted by Buyer. All Orders are subject to availability of the Product. If Buyer urgently requires a Product, Buyer is encouraged to contact Buyer’s customer service representative instead of using the Site.

4. Taxes. When used in these Terms and Conditions, taxes means any and all federal, state, municipal, value-added, or other governmental entity’s excise, sales, use, or any other tax or customs duties now in force or enacted in the future (“Taxes”).

5. Payment. It’s The Real Santa accepts approved credit cards and forms of electronic payments such as Apple Pay, Google Pay, Pay Pal for all purchases. Upon Order, It’s The Real Santa will charge Buyer’s credit card. Buyer represents and warrants that (i) the payment information that Buyer supplies to It’s The Real Santa is true, correct, and complete, (ii) Buyer is duly authorized to use such credit card for the purchase, (iii) charges incurred by Buyer will be honored by Buyer’s credit card company, and (iv) Buyer will pay charges incurred by Buyer at the posted prices, including all applicable Taxes, if any, regardless of the amount quoted on the Site at the time of the Order.

6. Prices. The prices, discounts, and promotions posted on this Site are subject to change without notice. The price charged for a Product will be the price advertised on this Site at the time the Order is placed, subject to the terms of any promotions or discounts that may be applicable. The price charged will be clearly stated in the Order confirmation email. Prices will exclude Taxes and shipping costs. All such Taxes and shipping costs will be added to the total price and will be itemized in the shopping cart and in the Order confirmation email. Prices include standard packing for domestic shipment and are subject to an

increase equal in amount to any Tax It’s The Real Santa may be required to collect or pay upon the production or sale of Products covered hereby. It’s The Real Santa reserves the right to correct any inadvertent typographical errors, inaccuracies, or omissions related to pricing and availability at any time, and to cancel any Orders arising from such occurrences.

7. Delivery. It’s The Real Santa will deliver the Product in accordance with its standard lead-time for the Products being ordered. Products will be delivered by electronic mail to the address provided with the Order. It’s The Real Santa makes no warranty or guaranty as to the amount of time it will take to deliver the Products. While It’s The Real Santa will endeavor to meet the agreed to delivery date, it will not be liable for any loss or damage (including any loss of use or loss of profits) incurred by Buyer as a result of any failure to deliver on a particular date.

8. Refunds. Buyer may be refunded the Purchase Price of the Order when written request is made, only when Buyer reasonably rejects a Product provided by It’s The Real Santa after a third attempt to deliver. When a refund is made, It’s The Real Santa has no further duty to perform under this agreement.

9. Communications. Buyer agrees that It’s The Real Santa may contact Buyer to provide Buyer with quality information about Products Buyer has ordered. Buyer also agrees that It’s The Real Santa or its Third Party Affiliates may, from time to time, contact Buyer about other products and services.

10. Warranty.

(a) Product Warranty. It’s The Real Santa warrants its Products provided hereunder will be

(b) Limitations. The sole obligation of It’s The Real Santa under this Section 10, Warranty, is to repair or replace, at its option any It’s The Real Santa Product which is defective. Other than the foregoing repair or replacement, Buyer shall have no other remedy against It’s The Real Santa. No agreement extending, expanding or supplementing this Warranty will be binding upon It’s The Real Santa unless in writing and signed by an authorized representative of It’s The Real Santa.

THESE WARRANTIES ARE THE EXCLUSIVE WARRANTIES AND IN LIEU OF OTHER WARRANTIES, WHETHER WRITTEN, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE. IN NO EVENT WILL IT’S THE REAL SANTA BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY.

11. Changes. Buyer will make no changes in software programming incorporated in or furnished with any It’s The Real Santa Product, unless first authorized or requested to do so by It’s The Real Santa. Any liability arising from any unauthorized changes will be Buyer’s responsibility.

It’s The Real Santa may at any time, at its sole discretion and without notice to Buyer, make changes to the Products, including the source of supply of any components thereto, that do not adversely affect the interface of such Products with Buyer’s associated equipment for any performance specifications for such Products.

12. Confidentiality. Buyer may receive or become exposed to It’s The Real Santa’s confidential or proprietary information, including but not limited to designs, technical documents, instructions, trade secrets, data or know how pertaining to the Products covered under the Order (collectively “Confidential Information”). Confidential Information will not include information that: (a) is already known to Buyer prior to the disclosure by It’s The Real Santa without an obligation of confidentiality; (b) is or becomes available to the general public through no act or fault of It’s The Real Santa; or (c) is rightfully disclosed to Buyer by a third party without an obligation of confidentiality.

Buyer agrees that it will maintain the Confidential Information of It’s The Real Santa in confidence and will use such information only for the purposes of the Order. Confidential Information may be disclosed by Buyer within its organization only to specific employees who have a need to know such information for the purposes of the Order and inform those employees of these Terms and Conditions. Buyer will not transmit or disclose Confidential Information to others without the prior written consent of It’s The Real Santa. Buyer warrants that it will not divulge, disclose or in any way distribute or make use of Confidential Information, and that it will not manufacture, repair (or enable a third party to manufacture or repair), alter, modify, decompile, disassemble, reverse engineer, translate or create derivative works of It’s The Real Santa’s Products. Upon the earlier of: (i) termination; (ii) expiration; or (iii) completion of performance of It’s The Real Santa’s obligations under the Order, Buyer will return to It’s The Real Santa any It’s The Real Santa Confidential Information, including all copies thereof.

13. Tooling and Data. It’s The Real Santa owns all rights to all specifications, drawings, engineering instructions, data, material, equipment, software, processes, facilities and tooling, including, but not limited, to jigs, dies, fixtures, molds, patterns, taps, gauges, test equipment, manufacturing aids and replacements items, now existing or hereafter created, except to the extent that title is specifically transferred in writing from It’s The Real Santa to Buyer.

14. Software License. In the event any “embedded software” or “software documentation” in any form (referred to collectively as Licensed Software) is delivered to Buyer in connection with an Order that is not subject to a separate software license executed by the parties, Buyer is granted a nonexclusive, limited license, in the case of embedded software or software documentation, use such embedded software or software documentation only in the course of the normal operation of the Products on which it is installed.

The Licensed Software is It’s The Real Santa’s Confidential Information. It’s The Real Santa retains title to all Licensed Software and any applicable copyrights, patents, and trade secrets. Unless otherwise specifically authorized by It’s The Real Santa in writing, Buyer is prohibited from making copies of Licensed Software, except for one copy for archival purposes.

Buyer will not remove any copyright notice or proprietary legend from the Licensed Software, or use the Licensed Software with any hardware except with the hardware for which it is designed. Buyer may transfer the Licensed Software in conjunction with the resale of the Products, or Buyer’s product, but only under terms consistent with and no less stringent than the terms set forth in this Section 14. Software License. Buyer's transferees may use the Licensed Software to the extent set forth above. The rights granted herein may be terminated by It’s The Real Santa immediately upon notice of Buyer’s default under these Terms and Conditions.

Buyer may not either itself or with the assistance of others, modify the Licensed Software including, but not limited to, translating, decompiling, disassembling or reverse assembling, reverse engineering, creating derivative or merged works, or performing any other operation on Licensed Software to recover any portion of the program listing, object code, source code, or any information contained in the Licensed Software.

Notwithstanding the warranties provided elsewhere herein, Buyer acknowledges that Licensed Software may be Product, aircraft or sensor specific and, as such, may require reasonable adjustment or refinement to suit Buyer's specific requirements. Buyer will provide reasonable aid to It’s The Real Santa in accomplishing such adjustments and refinements. Unless otherwise agreed in writing, It’s The Real Santa will provide Buyer such reasonable adjustments or refinements for a period not to exceed ninety (90) calendar days from delivery of the Licensed Software.

If Buyer is any unit or agency of the U.S. Government or a contractor which will or may supply the Licensed Software to a unit or agency of the U.S. Government, Buyer agrees that the Licensed Software represents “Commercial Computer Software”, that the U.S. Government’s use of the Licensed Software shall be subject to “Restricted Rights,” and that (if Buyer is such a contractor) before the Licensed Software is transferred, it shall be marked with the required Restricted Rights legend(s) as provided in DFARS 52.227.7013 or similar regulation by any other applicable unit or agency of the US Government.

IT’S THE REAL SANTA DOES NOT WARRANT THAT THE LICENSED SOFTWARE WILL BE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. THE LICENSED SOFTWARE IS FURNISHED "AS IS" WITH ALL FAULTS. IT’S THE REAL SANTA DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY AGAINST INFRINGEMENT, OF TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM TRADE OR CUSTOM.

15. Limitation of Liability. WHETHER ARISING FROM BREACH OF CONTRACT, WARRANTY, TORT OR OTHERWISE, IN NO EVENT WILL IT’S THE REAL SANTA BE LIABLE FOR ANY INCIDENTAL DAMAGES, CONSEQUENTIAL DAMAGES, SPECIAL DAMAGES, INDIRECT DAMAGES, LOSS OF PROFITS, LOSS OF REVENUES OR LOSS OF USE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES TO THE EXTENT PERMITTED BY APPLICABLE LAW. IT’S THE REAL SANTA’S LIABILITY FOR DAMAGES ARISING OUT OF OR RELATED TO THE SUPPLY OF ANY PRODUCT IS LIMITED TO THE ORDER PRICE FOR THE SPECIFIC PRODUCT GIVING RISE TO THE CLAIM.

16. Intellectual Property Liability. It’s The Real Santa will have no obligation to defend and no liability to Buyer for any costs, losses or damages, to the extent that an infringement allegation is based upon: (a) Buyer’s use of the Product in combination with any other Product, software or equipment; (b) Buyer’s use of the Products in a manner or for an application other than for which they were designed or intended, regardless of whether It’s The Real Santa was aware of or had been notified of such use; (c) Buyer’s use of the Products in a manufacturing or other process; (d) Buyer’s modifications to the Products; (e) It’s The Real Santa’s compliance with Buyer’s particular design, instructions or specifications; or (f) It’s The Real Santa’s compliance with any industry or proprietary standard or Buyer’s use of the Products to enable implementation of any industry or proprietary standard.

If an infringement claim is made or if It’s The Real Santa believes that an infringement claim is likely, It’s The Real Santa may, at its option and at its expense, and with no further liability to Buyer: (i) procure for Buyer the right to continue using the Products; (ii) replace or modify the Products so that it becomes non-infringing; or (iii) accept return of the Products and grant Buyer a credit for the purchase price paid to

It’s The Real Santa for such Products, less a reasonable depreciation for use, damage, and obsolescence. Further, It’s The Real Santa may cease shipping infringing Products without being in breach of the Order or these Terms and Conditions.

THIS SECTION STATES IT’S THE REAL SANTA’S ENTIRE LIABILITY AND BUYER’S SOLE RECOURSE AND REMEDY WITH RESPECT TO INFRINGEMENT. ALL OTHER WARRANTIES AGAINST INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, STATUTORY, EXPRESS OR IMPLIED, ARE, TO THE FULLEST EXTENT PERMITTED BY LAW, HEREBY DISCLAIMED.

17. Cancellation. Buyer may cancel an Order by cancelling the Order online within 24 hours of purchase by contacting It’s The Real Santa customer service representative through e-mail at support@characterencounters.com. Buyer may check the status of an Order through Buyer’s It’s The Real Santa customer account. After 24 hours from placement of any Order, please follow It’s The Real Santa’s Returns process.

18. Compliance with Laws. Buyer will: (a) comply with and ensure that Buyer’s Personnel comply with all applicable laws; all reasonable directions and orders given by Seller’s representatives which are in accordance with this Agreement; and all data protection, drug and alcohol, safety, health and environment guidelines, rules and procedures provided to Buyer by Seller; (b) obtain at Buyer’s expense any necessary licenses or permits for the purchase of the Products pursuant to this Agreement; (c) where Seller is required to comply with any applicable laws with respect to its use of the Products, Buyer shall, upon written notice from Seller, cooperate with Seller in providing information or certification of the Products. Buyer agrees to obtain any required licenses or approvals.

19. Force Majeure. It’s The Real Santa will not be liable to Buyer for any failure to meet its obligations arising out of causes beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of any Government authority (including, but not limited to the delay or refusal to issue an export license or its suspension or revocation), fires, floods, earthquakes, unusually severe weather, epidemics, quarantine restrictions, strikes, embargoes, seizure or freeze of assets, riots, strife, insurrection, civil disobedience, armed conflict, terrorism or war (declared or not), or impending threat of any of the foregoing (if reasonably expected to cause injury to people or property), shortages or inability to obtain materials or components, or delays of a subcontractor of It’s The Real Santa if such delay arises out of causes beyond the reasonable control of both It’s The Real Santa and the subcontractor. The due date of any performance affected by such an event will be extended by the period of time that It’s The Real Santa is actually delayed. If the inability to perform continues for longer than six (6) months, either party may terminate the affected Order by providing written notice to the other party.

20. Choice of Law and Disputes. Any and all disputes, disagreements or issues arising out of or in any way related to the Products or It’s The Real Santa’s performance under the Order will be governed by the laws of the State of Texas, without regard to its conflict of laws provisions. The parties disclaim any applicability of the U.N. Convention on the International Sale of Goods, 1980, and any successor treaty. Any disputes under the Order or these Terms and Conditions that cannot be settled by mutual agreement of the parties will be submitted to and decided by a court of competent jurisdiction in the state in which It’s The Real Santa performs the Order.

21. Waiver. The failure of a party to enforce any of the provisions of these Terms and Conditions or any Order will not waive that provision, nor will any such failure prejudice or affect the other party’s right to enforce that provision in the future.

22. Notices. Any notice between the parties relating to an Order will be in writing and in English, and if to Buyer, to Buyer’s authorized representative or, if to It’s The Real Santa, to It’s The Real Santa’s authorized representative at the address specified in the Order, or at such other address as a party may by notice specify to the other. A notice is deemed to have been received upon personal delivery, receipt electronically, or one business day following deposit with an overnight courier, or two calendar days following mailing by certified mail, return receipt requested, with a copy sent to: Attention: Legal Dept., It’s The Real Santa, Inc., 1081 It’s The Real Santa Way, Fort Collins, CO 80524.

23. Assignment. Seller may assign any rights or obligations under the Order and these Terms and Conditions without the prior written consent of Buyer. Buyer may assign the Order and these Terms and Conditions without consent of Seller in connection with the sale or transfer of all or substantially all of the assets of the business or Product line to which the Order and these Terms and Conditions pertain, provided that assignment is not made to a party’s direct competitor, and the assignee undertakes all obligations set forth in an Order and these Terms and Conditions. Any assignment in violation of this clause will be void.

24. Headings. Headings set forth in these Terms and Conditions are for convenience of reference only and do not alter the meaning, content, or enforceability of any provision hereof.

25. Severability. In the event any provision of these Terms and Conditions is held to be unenforceable or invalid by any court of competent jurisdiction, the validity and enforceability of the remaining provisions

will not be affected and, in lieu of such invalid or unenforceable provision, there will be added automatically as part of these Terms and Conditions provisions as similar in terms as may be valid and enforceable under applicable law.

26. Survivability. Upon expiration, completion or termination of the Order, all rights, duties, and obligations which by their nature should remain in force beyond the expiration, completion or termination of the Order, including, but not limited to Payment; Warranty; Confidentiality; Software License; Limitation of Liability; Intellectual Property Liability; and Articles 18 - 25 hereof, will remain in force following such expiration, completion or termination.

27. Entire Agreement. These Terms and Conditions represent the entire agreement and understanding of the parties hereto and supersede all prior negotiations, discussions, correspondence, communications, understandings, representations and agreements, oral or written between the parties relating to the Order.