End User License Agreement

Welcome to Santa Pics! Santa Pics is a digital application (“App”) that you can access through the website and online App Store. This is an agreement (“Agreement”) between you and First Descent Software Ltd., the owner and operator of Santa Pics. We want to make sure you know exactly what and how you can use Santa Pics, what you can expect from First Descent, and what we can expect from you. So, we’re detailing it all here for you. If you have any questions about this Agreement, please contact our team.


Parties

You and First Descent are the parties to this Agreement. When we say “First Descent”, “we”, “we’re”, “we’ll”, or “us”, we mean First Descent Software Ltd..


Acceptance

If you click the ‘agree/submit’ button below or use the Santa Pics App, that is a sign that you have confirmed that you are 18 years old or over and that you have agreed to the terms of this Agreement.


Your Personal Information and Your Privacy

We are only going to use your personal information for the purposes to which you consent. We’ve outlined them in this Agreement. We’re going to safeguard and protect your privacy and personal information too. It’s all outlined in our Privacy Policy which forms part of this Agreement.


Your Account

You may need to create your own account to use certain features of the Santa Pics App. If that is the case, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your account. We strongly suggest that you create a secure password and keep it secret. You are responsible for all activities that occur under your account or password. First Descent reserves the right to decline orders, Santa Pics App access, or to terminate your account, and/or cancel orders or bookings at any time in its sole discretion.

If you are using the Santa Pics App on behalf of a business or other entity and need to create an account, you agree that you have the authority to bind that business or entity and enter this Agreement on its behalf.

You may not assign any of your rights or obligations under this Agreement. Any such attempt at assignment by you shall be void.

Communications & Unsubscribing

When you use the Santa Pics App, or send e-mails, text messages, and other communications from any device to us, you are communicating with us electronically.  You consent to receive communications from us electronically in a variety of ways, such as by mail, phone, e-mail, text, in-app push notices, direct messaging, or by posting notices and messages on the Santa Pics App.  Of course, we’ll always provide you with the option to unsubscribe to electronic communications.  You can also contact us any time to do so.


Using the Santa Pics App
First Descent has worked hard to develop the Santa Pics App.

The Santa Pics App and all its content are the sole property of First Descent or, if applicable, First Descent’s licensors.  When you use the Santa Pics App or download it to a mobile device, smartphone, tablet or any other electronic device (“Device” or “Devices”), you are a user of the Santa Pics App and not an owner.

We want you to use and enjoy the Santa Pics App so we’re granting you limited, non-exclusive, non-transferable, revocable permission to make use of it and its content for the intended purpose.  This is known as “Access”.  It means that the Santa Pics App and its content are not sold or transferred to you but rather that you have Access to it.

In exchange for granting you this Access, you promise and agree that you will use the Santa Pics App and its content only for the intended purpose, which is to use your Device to take a photo or video of a person or object with an augmented reality depiction of Santa Claus and related holiday items, and to share, order prints or save the photo or video, all in accordance with the User Guidelines, <a href="https://www.firstdescent.software/santapics/user-guidelines">https://www.firstdescent.software/santapics/user-guidelines</a>.

You agree you will notincorporate any portion of the Santa Pics App into your own programs, apps, software, computer code, or website, or redistribute, sell, lease or transfer all or any part of it.  You also agree to use the Santa Pics App in its entirety, as a bundle.

Some people try to figure out ways to access and/or damage platforms and apps so we have to make the following clear so you don’t harm everyone’s ability to use the Santa Pics App properly.  You may only have Access to the Santa Pics App through the interfaces that First Descent provides.  Unless you have First Descent’s written permission, you agree that you will not copy, modify, reverse engineer, decompile or disassemble, scrape, extract source code of or otherwise tamper with, the Santa Pics App or any of its content, whether in whole or in part, digitally or otherwise, or create any derivative works from or of the Santa Pics App or its content, nor will you breach, or attempt to breach, probe, scan, or test for vulnerabilities in the Santa Pics App, network, usage rules, or any of the Santa Pics App’s security components, authentication measures or any other protection measures applicable to it.  Further, you agree you will not interfere with, disrupt or attempt to interfere with or disrupt the Santa Pics App, digitally or otherwise.  Finally, you agree that you will not attempt to do any of these things, nor will you cause, encourage or help any other person or entity to do any of these things.  

You may have the option of accessing the Santa Pics App through downloadable software and this software may update automatically on your Device, without notice.  Some software, or portions of software, may be governed by open source licenses.  Open source licenses are the types of software contracts that allow people to see and change the source code of a website or app in order to customize it for their own purposes.  In that case, First Descent will make such licenses available to you and, in the case of conflict between such a license and this Agreement, the open source license will prevail but only with respect to the software, or portion of the software, to which it applies.

Just like your name or your company name belongs to you, all of First Descent’s trademarks (registered or not), service marks, trade names, logos, domain names, technology, graphics and written material, and any other features of the First Descent brand (“Brand Features”) are the sole property of First Descent.  This Agreement does not grant you any rights in, or allow you to use, any Brand Features without the express written permission of First Descent.

Feedback

If you provide First Descent with any feedback on or comments regarding the Santa Pics App, you agree that it is not confidential and that you grant us the right to use such feedback so we can talk to people and do things that are necessary to improve.  We will do that without restriction or payment to you.

User-Generated Content

During your use of the Santa Pics App, you may post, upload, or otherwise contribute content.  This may include, for example, pictures, video, audio, text, messages, links, information and/or other types of content. You might have conversations with other users, you might write reviews or you may share your experiences.  This is known as “User-Generated Content”.

We will not tolerate hateful or abusive behaviour on or using the Santa Pics App and will remove or edit any content that does not comply, at our discretion.  The Santa Pics App can only be used appropriately and respectfully.  Check out our https://www.firstdescent.software/santapics/user-guidelines to see what is allowed, what isn’t and what your rights are.

Note: You are solely responsible for all User-Generated Content that you post.  First Descent is not responsible for User-Generated Content nor does it endorse any opinion contained in it.  

You agree that if anyone brings a claim against First Descent related to User-Generated Content that you post or create, you will indemnify and hold First Descent harmless from and against all damages, losses, and expenses of any kind (including reasonable lawyer fees and costs) arising out of such claim to the extent permissible by applicable law.

Rights you grant us

In consideration for the rights granted to you under this Agreement, you:

1. allow First Descent to use the processor, bandwidth, and storage hardware on your Devices in order to facilitate the proper operation of the Santa Pics App;
2. allow First Descent and our partners and affiliates to provide advertising, marketing and other information to you;
3. allow First Descent to use the data you provide or consent to us having in accordance with our Privacy Policy.

Service limitations and modifications

First Descent will make all reasonable efforts to keep the Santa Pics App fully operational. However, certain things may be beyond our control or may be required to ensure it can operate properly.  This includes, but is not limited to, technical difficulties, maintenance or testing, updates required, legal or regulatory changes, acts of God, catastrophic weather events, and acts of terrorism.  As such, there may from time to time be temporary interruptions.

First Descent reserves the right to modify or discontinue, temporarily or permanently, any aspect of the Santa Pics App, with advance notice where possible, all without liability to you, except where prohibited by law, for valid reasons such as in case of genuine interruption, modification, or discontinuation of the Santa Pics App or any function or feature thereof, or need to repair, maintain or improve the existing functions or features, or to add new functions or features, or to ensure the operability or the security of the Santa Pics App.


Product & Pricing Descriptions

First Descent attempts to be as accurate as possible when conveying products and services and their price.  However, First Descent does not guarantee that product descriptions or other content is accurate, complete, reliable, current, or error-free.  Sometimes mistakes happen.

In the event of a discrepancy between what you see on the Santa Pics App and an invoice or other order confirmation material from the company you’re transacting with, the latter shall prevail.

Term & Termination

This Agreement applies to you until terminated by either you or us.   We can still keep displaying the User-Generated Content you post on the Santa Pics App in perpetuity.  If you want it taken down as well, please contact us to let us know.
 
We have the right to terminate this Agreement and/or suspend your Access to the Santa Pics App at any time, including in the event of your actual or suspected unauthorized use, non-compliance with this Agreement, or if we discontinue operation of the Santa Pics App or any portion thereof (in which case we’ll provide you with reasonable notice in advance).

You may terminate this Agreement at any time. To learn how to terminate your Santa Pics App account, please contact us and we will explain the process.

Even after termination, certain sections of this Agreement will survive and still apply that, either explicitly or by their nature, must remain in effect even after termination of this Agreement.


Warranty

Note: You accept and use the Santa Pics App “as is”.  First Descent cannot warrant that it is risk-free.  Full details are below:

• You understand and agree that the Santa Pics App is provided “as is” and “as available,” without express or implied warranty or condition of any kind. First Descent and any other owners of the content make no representations and disclaim any warranties or conditions of satisfactory quality, viability, merchantability, fitness for a particular purpose, or non-infringement. Neither First Descent nor any other owner of content warrants that the Santa Pics App is free of malware or other harmful components. In addition, First Descent makes no representation nor does it warrant, endorse, guarantee, or assume responsibility for any product or service advertised, promoted or offered by a third party on or through the Santa Pics App or any hyperlinked website, or featured in any banner or other advertising.First Descent is not responsible or liable for any transaction between you and third-party providers.
  
  No advice or information whether oral or in writing obtained by you from First Descent creates any warranty on behalf of First Descent.  While using the Santa Pics App, you may have access to content filtering features, but use of these features may still result in some content being provided.  You should not rely on such features to filter all unwanted content.
  
  Without limiting the foregoing, nothing in this section shall have the effect of limiting First Descent’s liability in the event of total or partial non-performance or inadequate performance of its essential obligations for providing the service under this Agreement.  This section applies to the fullest extent permitted by applicable law.  This section does not affect your statutory rights as a consumer.

Disclaimer of Liability

Note: You accept and agree that First Descent is not liable for a variety of matters and that your remedy is limited, to the extent permitted by law, to uninstalling or discontinuing use of the Santa Pics App.  Full details are below:

• You agree that your sole and exclusive remedy for any problems or dissatisfaction with the Santa Pics App is to uninstall it and to stop using the Santa Pics App. You agree that First Descent has no obligation or liability arising from or related to third party service providers, third party applications or the content thereof made available through or in connection with the Santa Pics App, and while your relationship with such third party service provider or third party applications may be governed by separate agreements with such third parties, your sole and exclusive remedy, with respect to First Descent, for any problems or dissatisfaction with third party service providers or third party applications or the content thereof, is to uninstall and/or stop using any such third party applications.
  
  In no event will First Descent, its officers, shareholders, employees, contractors, agents, directors, subsidiaries, affiliates, successors, assigns, suppliers, or licensors be liable for:
  1. any loss or damage (including any indirect, special, incidental, punitive or exemplary, damages) which is not foreseeable. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time the contract was made, both we and you knew it might;
  2. any: (a) loss of use; (b) loss of data; (c) loss of business; (d) loss of profits; or (e) damage to Devices, to the extent you could have avoided such damage by following our advice to apply updates to Santa Pics App or if such damage is caused by you failing to correctly follow installation instructions or have in place the minimum system requirements advised by us, in all cases arising out of the use of or inability to use the Santa Pics App, Devices, third party service providers, third party applications, or third party application content, without regard to whether First Descent has been warned of the possibility of those damages, and even if a remedy fails of its essential purpose;
  3. non-performance or inadequate performance or delay to the obligations deriving from this Agreement caused by Force Majeure or any by a cause that is not reasonably foreseeable or beyond First Descent’s reasonable control.

This section applies to the fullest extent permitted by applicable law.  You may have rights under applicable law in your jurisdiction which provides for remedies in addition to those set out above.


Third Party Rights, including Apple & Google

You acknowledge and agree that First Descent and certain distributors, such as app store providers (“App Store Providers”) are intended beneficiaries of this Agreement and have the right to enforce this Agreement.  Other than as set out in this section, this Agreement is not intended to grant rights to anyone except you and First Descent, and in no event shall this Agreement create any third-party beneficiary rights. Furthermore, the rights to terminate, rescind, or agree to any variation, waiver, or settlement of this Agreement are not subject to the consent of any other person.

If you have downloaded the First Descent mobile application from an App Store Provider, such as Apple, Inc. or Google LLC or if you are using the Santa Pics App on an iOS or Android device, you acknowledge that you have read, understood, and agree to the following notice.  This Agreement is between you and First Descent only, not with an App Store Provider, and App Store Providers are not responsible for the Santa Pics App and the content thereof.  App Store Providers have no obligation whatsoever to furnish any maintenance and support services with respect to the Santa Pics App.  In the event of any failure of the Santa Pics App to conform to any applicable warranty, then you may notify the App Store Provider and the App Store Provider will refund any applicable purchase price for the App to you; and, to the maximum extent permitted by applicable law, the App Store Provider has no other warranty obligation whatsoever with respect to the Santa Pics App.  The App Store Providers is not responsible for addressing any claims by you or any third party relating to the Santa Pics App or your possession and/or use of it, including: (1) product liability claims; (2) any claim that the Santa Pics App fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation.  The App Store Provider is not responsible for the investigation, defence, settlement, and discharge of any third-party claim that the Santa Pics App and/or your possession and use of the App infringe that third party’s intellectual property rights. You agree to comply with any applicable third-party terms, when using the Santa Pics App.  App Store Providers and their subsidiaries, are third party beneficiaries of this Agreement, and upon your acceptance of this Agreement, App Store Providers will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary of this Agreement. You hereby represent and warrant that (1) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (2) you are not listed on any U.S. Government list of prohibited or restricted parties.


Third Party Products & Service

When you use the Santa Pics App, you may also be using the products or services of one or more third parties, such as a wireless carrier, mobile platform provider or photo production company.  Your use of these third-party services may be subject to the separate policies, terms of use, and fees of those third parties.  You agree that First Descent does not assume responsibility for any products, content, services, websites, advertisements, offers, or information that is provided by third parties and made available through the Santa Pics App.  If you purchase, use, or access any such products, content, services, advertisements, offers, or information through the Santa Pics App, you agree that you do so at your own risk and that First Descent will have no liability whatsoever.

Indemnity for unauthorized use or breach

You agree to defend, indemnify and hold harmless First Descent and its officers, directors, employees, contractors, agents, shareholders, subsidiaries, affiliates, and partners (each, an "Indemnified Party") from and against any losses, claims, actions, costs, damages, penalties, fines and expenses, including without limitation lawyer and expert fees and expenses, that may be incurred by an Indemnified Party arising out of, relating to or resulting from your unauthorized use of the Santa Pics App or from any breach by you of this Agreement, including without limitation any actual or alleged violation of any law, rule or regulation.


Applicable Law & Jurisdiction

To the extent permitted by applicable law, this Agreement will be governed by the laws of the Province of Manitoba for residents of Canada (except Quebec).  To the extent permitted by applicable law, any claims arising out of or relating to this Agreement or use of the Santa Pics App that are not subject to Resolving disputes through arbitration (below) shall be brought exclusively in the courts of competent jurisdiction in the City of Winnipeg for residents of Canada (except Quebec).  You and First Descent consent to the jurisdiction of those courts.

For Quebec residents only, to the extent permitted by law, this Agreement will be governed by the laws of the Province of Quebec without respect to its conflicts of laws principles.  To the extent permitted by applicable law, any claims arising out of or relating to this Agreement or use of the Santa Pics App that are not subject to Resolving disputes through arbitration (below) shall be brought exclusively in the courts of competent jurisdiction in the City of Montreal, and you and First Descent consent to the jurisdiction of those courts.


Resolving disputes through arbitration

Note: You agree that any legal dispute between us or claim you make against us will be resolved by arbitration in Manitoba.

• (Not applicable to Quebec consumers) Any dispute or claim relating in any way to your use of the Santa Pics App will be resolved by binding arbitration, rather than in court, pursuant to The Arbitration Act of Manitoba.
  
  There is no judge or jury in arbitration, and court review of an arbitration award is limited.  However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages).
  
  We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. 
  
  We both agree that you or we may only bring lawsuit:
  1. in small claims court if your claim qualifies; or
  2. in court if it is to seek to enjoin infringement or other misuse of intellectual property rights.

Copyright, Trademark, Patent

First Descent respects intellectual property and asks that you do as well.

All content included in or made available through the Santa Pics App – including but not limited to text, graphics, colours, page headers, banners, scripts, service names, product names, logos, icons, images, video clips, audio clips, music, forms, interactive features, digital downloads, data compilations, and software – is the exclusive property of First Descent and/or its content suppliers, and is protected by Canadian and international copyright and intellectual property law.  The compilation of all content included in or made available through any Santa Pics App is the exclusive property of First Descent and protected by Canadian and international copyright law.

For complete information about our intellectual property, as well and how to notify us of any intellectual property issues, read our Intellectual Property Disclaimer and Notice, https://www.firstdescent.software/santapics/intellectual-property-disclaimer-and-notice.

Entire Agreement

This Agreement, subject to any amendments, modifications, or additional agreements you enter into with us, shall constitute the entire agreement between you and First Descent with respect to the Santa Pics App.  If any provision of this Agreement is found to be invalid by a court of competent jurisdiction, that provision only will be limited to the minimum extent necessary and the remaining provisions will remain in full force and effect.


Waiver & Assignment

Failure by First Descent to monitor or enforce a provision of this Agreement does not constitute a waiver of its right to do so in the future with respect to that provision, any other provision, or this Agreement as a whole.  First Descent may assign its rights, licenses, and obligations under this Agreement without limitation.


Contacting Us & Notice

If you have any questions, or comments about this Agreement, please contact us at:

First Descent Software Ltd.
108 -1479 Buffalo Place
Winnipeg, Manitoba  R3T 1L7
CANADA
Phone: 204-396-7506
Email: support@santapicsapp.com

You agree that all agreements, notices, messages, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.


Changes to Agreement

We won’t change this Agreement for no reason.  We do reserve the right, however, to change it if we need to.  For example, the law may change or we may develop new functionality that improves the Santa Pics App.  If we do make material changes, we’ll provide you with as much notice as we can.  That notice could come in the form of an email, a note on the website or within the mobile application.  If the changes are really important, we may need you to agree to them in order to keep using the Santa Pics App.  The point is, please don’t ignore the notices.  Read the notices carefully.  Of course, you can contact us any time to ask questions and provide your feedback.