Hallmark Terms of Use
Last Updated: September 10, 2024
IMPORTANT! PLEASE CAREFULLY READ THESE TERMS OF USE (“TERMS”), INCLUDING THE MANDATORY ARBITRATION PROVISION, WHICH REQUIRES THAT DISPUTES ARE RESOLVED BY FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL AND NOT A CLASS-WIDE OR CONSOLIDATED BASIS. (EXCEPT FOR BATCH ARBITRATION, AS DESCRIBED BELOW). THIS MEANS THAT, UNDER CERTAIN CIRCUMSTANCES, YOU AND HALLMARK CARDS, INCORPORATED ARE EACH GIVING UP THE RIGHT TO SUE EACH OTHER IN COURT OR IN CLASS ACTIONS OF ANY KIND. IN ARBITRATION, THERE IS NO JUDGE OR JURY AND THERE IS LESS DISCOVERY AND APPELLATE REVIEW THAN IN COURT. DETAILS ARE SET FORTH BELOW. PLEASE REVIEW CAREFULLY.
These terms constitute a binding agreement between you and Hallmark Marketing Company, LLC, Hallmark Media United States, LLC, DaySpring Cards, Inc., Hallmark Business Connections, LLC, and their family of companies (collectively, “Hallmark,” “we” or “us”), governing your use of any website, mobile or other app, product, feature, or other service offered by us that posts a link to or otherwise provides these Terms (collectively, the “Hallmark Properties”) and your relationship with us with regard to the Hallmark Properties and any advertising, communications, or other interactions with us related to the Hallmark Properties regardless of whether you used the Hallmark Properties. In addition, certain of the Hallmark Properties are governed by additional, service-specific terms (collectively, “Supplemental Terms”), including without limitation, terms for Crown Rewards, Hallmark+, Keepsake Ornament Club, and our text message program. The Supplemental Terms are incorporated into these Terms by reference. To the extent there is a conflict between these Terms and the Supplemental Terms, the Supplemental Terms will control with respect to the applicable service(s).
By accessing the Hallmark Properties and/or transacting with the Hallmark Properties, you agree to be bound by these Terms, and where applicable, the Supplemental Terms. Your use of the Hallmark Properties is also governed by our Privacy Policy which is incorporated herein by reference. IF YOU DO NOT AGREE TO THESE TERMS, ANY APPLICABLE SUPPLEMENTAL TERMS, OR OUR PRIVACY POLICY, DO NOT ACCESS OR USE THE HALLMARK PROPERTIES.
To the extent allowed by applicable law, we reserve the right to change these Terms and the Supplemental Terms at any time without prior notice. When we make changes, the new Terms will be made available at the Hallmark Properties, and any new Supplemental Terms will be made available from within, or through, the affected services on the applicable Hallmark Properties. We may also provide notice to you in other ways, such as through contact information you have provided. Your continued use of any of the Hallmark Properties after the effective date of the revised Terms and/or Supplemental Terms as applicable (or engaging in such other conduct as we may reasonably specify) will constitute your consent to those changes to the fullest extent allowed by applicable law.
Hallmark may modify, suspend, or discontinue any aspect of the products or services we offer through the Hallmark Properties (collectively “Services”), at any time for any reason, with or without notice to you, including the availability of any Hallmark Property, or any feature or Content (defined below) of a Hallmark Property.
Except with respect to User Content (defined below), Hallmark, its licensors, or suppliers own all rights, title, and interest in and to the intellectual property contained within the Hallmark Properties (collectively, “Hallmark Content”). The Hallmark Content is protected by United States and international laws. The Hallmark Content and the User Content are collectively referred to in these Terms as “Content.”
You may not modify, publish, transmit, participate in the transfer or sale of, reproduce, create derivative works from, distribute, perform, display, incorporate into another website, app, or other service; or in any way exploit any of the Hallmark Content, in whole or in part, except as set forth in these Terms, without the specific permission of Hallmark.
Subject to your compliance with these Terms and any applicable Supplemental Terms, Hallmark grants to you a limited, revocable, non-exclusive, non-transferrable license to engage in the following activities for non-commercial purposes only:
- To browse, access, and view any of the Hallmark Properties and the Hallmark Content therein that is available to the public without registration; and, if you have registered or subscribed as required by the applicable Service, to browse, access, and view Hallmark Content available to such registered or subscribed viewers;.
- To use the Hallmark Properties, where applicable, to send personal, non-commercial messages to your family, friends, colleagues, and other individuals who you personally know..
- To link to the Hallmark Properties, provided, however, that your website or any third party websites that link to the Hallmark Properties: (a) must not frame or create a browser or border environment around any of Hallmark Content or otherwise mirror any part of the Hallmark Properties; (b) must not imply that Hallmark is endorsing or sponsoring it or its products or services, unless Hallmark has given it prior written consent; (c) must not present false information about, or disparage, tarnish, or otherwise, in Hallmark’s sole opinion, harm Hallmark or its Services; (d) must not use any Hallmark trademarks without the prior written permission from Hallmark; (e) must not contain content that could be construed as distasteful, offensive or controversial or otherwise objectionable (in Hallmark’s sole opinion); and (f) must be owned and controlled by you or the person or entity placing the link, or otherwise permit you to enable such link subject to these Terms. By linking to a Hallmark Property, you agree that you do and will continue to comply with the above linking requirements. Notwithstanding anything to the contrary contained in these Terms, Hallmark reserves the right to prohibit linking to the Hallmark Properties for any reason in our sole and absolute discretion even if the linking complies with the requirements described above.
The foregoing license does not include any right to modify, publish, participate in the transfer or sale of, reproduction, or creation of derivative works from the Hallmark Content or the Hallmark Properties, except as and only to the extent expressly stated above.
You and other users may have the ability to upload to, transmit through, or otherwise make available (collectively, “Upload”) through the Hallmark Properties personalized messages, audio, video, photographs, files, data, reviews, discussions in community forums, or other materials (collectively, “User Content”). You are solely and entirely responsible for User Content that you Upload using the Hallmark Properties. You acknowledge that other users of the Hallmark Properties, and not Hallmark, are similarly responsible for all User Content they Upload using the Hallmark Properties. You agree that you have no right, title, or interest in or to any Content that you have not Uploaded that appears on or through the Hallmark Properties.
You acknowledge that Hallmark has no obligation to pre-screen, monitor, or investigate User Content, but that it reserves the right to do so.
Subject to any applicable account settings that we may choose to make available to you, and which you may then choose to select, you grant to Hallmark a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right (including any moral rights) and license to use, distribute, reproduce, modify, adapt, translate, create derivative works of, publicly perform, and publicly display your User Content, in whole or in part, together (at Hallmark’s option) with the names and likenesses of any persons identifiable therein, in any form, media, or technology now known or later developed, for the purposes of operating, marketing, and providing the Hallmark Properties and their services to you and to other potential, actual, and former users. Notwithstanding the foregoing, with respect to User Content that is provided to Hallmark solely for the purpose of incorporating such User Content into a product or service ordered by you, you grant such right to Hallmark for the sole purpose of making and delivering products and services ordered by you.
Except as otherwise described in our Privacy Policy, any User Content will be treated as non-confidential and non-proprietary and we will not be liable for any use or disclosure of User Content. You acknowledge and agree that your relationship with Hallmark is not a confidential, fiduciary, or other type of special relationship, and that your decision to submit any User Content does not impose any confidentiality obligations on Hallmark.
It is our policy not to accept or consider content, information, ideas, suggestions or other materials other than those we have specifically requested, to which certain specific terms, conditions and requirements may apply. This is to avoid any misunderstandings if your ideas are similar to those we have developed or are developing independently. Accordingly, Hallmark does not accept unsolicited materials or ideas, and takes no responsibility for any materials or ideas so transmitted and you agree that any such ideas transmitted to Hallmark are included in the above license you grant to Hallmark for any User Content.
You agree and understand that we are not obligated to post, keep or use your User Content.
You represent and warrant that you are the owner of all rights, title, and interest in and to the User Content you Upload (or such User Content is in the public domain), or otherwise have all rights necessary to grant the license provided for in these Terms, including without limitation that any other holder of any worldwide intellectual property right, including moral rights (to the extent allowed by applicable law), in the User Content you Upload, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You further warrant that the User Content you Upload is accurate, does not violate these Terms, and will not cause injury to any person or entity.
If you send an item (such as a card, ornament, or gift), whether such item is physical or digital, to another individual, you represent and warrant that you have the consent of the recipient to send that card or message. You acknowledge and agree that you, not Hallmark, are the sender of such card or message, and that we act merely as a delivery agent.
Intellectual Property Claims
In accordance with the Digital Millennium Copyright Act of 1998 (the "DMCA"), Hallmark has a designated agent for receiving notices of copyright infringement, and we follow the notice and take down procedures of the DMCA. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide our copyright agent the following information required by the Online Copyright Infringement Liability Limitation Act of the DMCA, 17 U.S.C. 512:
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
- An identification of the copyright work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
- An identification of the material that you claim is infringing or to be the subject of infringing activity, together with information reasonably sufficient for us to locate the material on the Hallmark Properties;
- Information reasonably sufficient to permit us to contact the complaining party;
- A written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and
- A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
Please send this information to our Copyright Agent:
Legal Division
Hallmark Cards, Incorporated
2501 McGee Trafficway MD 339
Kansas City MO 64108
trademark@hallmark.com
If you believe that any content on the Hallmark Properties violates your exclusive rights other than copyrights, please provide us at least the following information: (a) your physical or electronic signature; (b) identification of the material that you claim is infringing your exclusive rights and information reasonably sufficient to permit us to locate the material; (c) an explanation of the exclusive rights that you own/have and why the you believe the content infringes those rights, sufficient for us to evaluate the complaint; and (d) accurate contact information for you. Please send your complaint to trademark@hallmark.com.
It is often difficult to determine if your intellectual property rights have been violated or if the DMCA requirements have been met. We may request additional information before we remove any infringing material. If a dispute develops as to the correct owner of the rights in question, we reserve the right to remove your content along with that of the alleged infringer pending resolution of the matter.
As a condition of your use of the Hallmark Properties, you agree not to use the Hallmark Properties for any purpose that is prohibited by these Terms, by applicable Supplemental Terms, by applicable law or in any other manner that we deem objectionable (in our sole discretion). You will not, and will not permit or assist any third party to, take any action or Upload any User Content on or through the Hallmark Properties that:
- Infringes on any copyright, trademark, patent, trade secret, right of publicity, right of privacy, or any other right of another person or entity;
- Is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, profane, or vulgar;
- Promotes discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group;
- Constitutes unauthorized or unsolicited advertising, junk mail, bulk mail, chain letters, or surveys;
- Discloses another person's address, phone number, e-mail address, credit card number, or any information that may be used to track, contact, or impersonate that individual or that is extremely personal in nature;
- Discloses “Sensitive Information” such as any other information relating to: (a) government-issued identifications, including, but not limited to, Social Security Numbers (in whole or in part), Individual Taxpayer Identification Numbers, Driver’s License, etc.; (b) financial account numbers; (c) health information, (d) biometric identifiers; or (e) other information which could increase the risk of identity theft to, embarrass, or otherwise harm the person about whom the information relates;
- Involves commercial activities and/or sales, such as contests, sweepstakes, or barter; communicating or facilitating any commercial advertisement or solicitation; marketing any goods or services; reselling, renting, leasing, or providing for payment the Services to any person;
- Impersonates any person or entity, including any employee or representative of Hallmark;
- Engages in or attempts to engage in any potentially harmful acts that are directed against the Hallmark Properties, including but not limited to violating or attempting to violate any security features of the Hallmark Properties; using manual or automated software or other means to scrape, crawl, spider, or similarly access any portion of the Hallmark Properties (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from our websites for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); introducing or sending viruses, worms, spyware, malware, or any other kind of harmful code into or through the Hallmark Properties; interfering or attempting to interfere with the proper functioning of or use by others of the Hallmark Properties, including by means of overloading, flooding, spamming, mail bombing, or crashing the Hallmark Properties;
- Engages in or attempts to engage in any of the following: disabling, bypassing, modifying, defeating, violating, removing, impairing, circumventing, or otherwise interfering with digital rights-management technology or other features or technology that limits or prevents use of the Hallmark Properties or the Content therein; and
- Automates the process of sending or viewing Content.
You agree to not engage in the use, copying, or distribution of any of the Content other than expressly permitted in these Terms, including any use, copying, or distribution of User Content of third parties obtained through the Hallmark Properties for any commercial purposes. If you download or print a copy of the Content for personal use, you must retain all copyright and other proprietary notices contained therein.
You agree that digital rights-management technology is an integral and inseparable part of any Hallmark Property that employs it. Tampering with or circumventing such digital rights-management technology or otherwise accessing or using the Hallmark Properties or Content in violation of these Terms and any applicable Supplemental Terms may constitute copyright infringement.
YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH ANY OTHER USERS AND THIRD PARTIES WITH WHOM YOU INTERACT. Notwithstanding the foregoing, we reserve the right (but have no obligation) to intercede in any disputes that arise out of those interactions. You agree that Hallmark is not and will not be responsible for any liability incurred as the result of such interactions. We do not approve, endorse, or make any representations or warranties with respect to User Content. You use all User Content and interact with other users at your own risk.
You acknowledge that if you post your User Content to a public area of the Hallmark Properties, or any third party site, including any information about your viewership of Hallmark Content, such as your viewership of movies via Hallmark+, you are choosing to do so, and the federal Video Privacy Protection Act of 1998 (18 U.S.C. § 2710), Connecticut General Statute § 53-450, Michigan Law § 445.1712, Maryland Code Article 27 § 583, and similarly worded state or other video privacy laws or regulations do not apply. However, to the extent that any of those laws or regulations do apply in any manner, you are providing your informed, written consent to the disclosure of that information pursuant to all applicable laws.
We reserve the right to investigate User Content, as well as violations of these Terms and any applicable Supplemental Terms, including by requesting evidence of your rights in and to the User Content. Hallmark reserves the right to refuse and/or remove any Content, and to suspend the shipping of any order or service relating to Content, for any reason it deems, in its sole discretion, to be appropriate. By using the Hallmark Properties, you irrevocably consent to such investigations and disclosures.
You are responsible for the accuracy of the information included in your account, including updating your information as necessary, maintaining the confidentiality of your password. To the fullest extent allowed by law, all activity conducted in connection with your account will be your responsibility, as you are deemed to be in sole possession and control of the confidential password necessary to access your account. You must immediately notify Hallmark of any unauthorized access or tampering of your account, or suspected breach of security by contacting Consumer Care via our contact care form or calling us at 1-800-HALLMARK. The information you provide is used to respond directly to your questions or comments. We may also file your comments and share them with our consumer care team to improve our service in the future and for other purposes permitted by our Privacy Policy. If you still have questions or concerns, please write us at:
Hallmark Consumer Care
P.O. Box 419034
Kansas City, MO 64141
You must provide all equipment and software necessary to connect to the Hallmark Properties, including: (i) for any app we may offer (“App”): a mobile device or tablet that is suitable to connect with and use such App, and (ii) for Hallmark+: a television, computer, Roku device, Apple TV, Amazon Fire TV, Android TV, a blu-ray player, Chromecast, or any other equipment that meets the technical requirements for our delivery system (which may require the use of plug-ins). You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Hallmark Properties.
Any purchase you make online through the Hallmark Properties are subject to the purchase terms or other applicable subscription service or other terms posted on the Hallmark Properties. Prices shown are for online purchases, and pricing in retail stores may vary.
Any sweepstakes, contests or other promotions (any, a “Promotion”) that may be offered via the Hallmark Properties may be governed by a separate set of rules that may have eligibility requirements, such as certain age or geographic area restrictions, terms and conditions governing the Promotion, use of User Content, and disclosures about how your personal information may be used. It is your responsibility to read these rules to determine whether or not you want to and are eligible to participate, register and/or enter, and to determine the applicable terms and conditions of the Promotion. By participating in a Promotion, you will be subject to those official rules, and you agree to comply with and abide by such rules and the decisions of the identified sponsor(s).
If you choose to participate in the Crown Rewards loyalty program, the Crown Rewards Program Supplemental Terms apply and are incorporated herein by reference. You should also review the Notice of Financial Incentives that applies to Crown Rewards participants.
If you purchase a membership in the Keepsake Ornament Club, the Keepsake Ornament Club Supplemental Terms apply and are incorporated herein by reference.
If you subscribe to the Hallmark+ service, the Hallmark+ Supplemental Terms apply and are incorporated herein by reference.
There may be links from the Hallmark Properties, or in communications you receive from Hallmark, to third party sites or properties. The Hallmark Properties may also include third party content that we do not control, maintain, or endorse. Accessing those third party sites requires you to leave the Hallmark Properties. In addition, to access certain Hallmark Properties, you may be required to use the sites and properties of a third party. We do not control those third party sites or any of the content contained therein and you expressly acknowledge and agree that we are in no way responsible or liable for any of those third party sites or properties, including, without limitation, their content, policies, failures, promotions, products, services, actions and/or any damages, losses, failures or problems caused by, related to or arising from those third parties or their sites. YOUR CORRESPONDENCE AND BUSINESS DEALINGS WITH OTHERS FOUND ON OR THROUGH A HALLMARK PROPERTY INCLUDING, WITHOUT LIMITATION, THE PAYMENT AND DELIVERY OF PRODUCTS AND SERVICES, AND ANY TERMS, CONDITIONS, WARRANTIES AND REPRESENTATIONS ASSOCIATED WITH ANY SUCH DEALINGS, ARE SOLELY BETWEEN YOU AND THE THIRD PARTY. HALLMARK ENCOURAGES YOU TO REVIEW ALL POLICIES, RULES, TERMS AND REGULATIONS, INCLUDING THE PRIVACY POLICIES AND TERMS OF USE OF EACH AND EVERY THIRD PARTY SITE THAT YOU VISIT.
Some of the Hallmark Properties are accessible from countries around the world and may contain references to Services that are not available in your country. These references do not imply that we intend to announce such Services in your country. The Hallmark Properties are controlled and offered by us from its facilities in the United States. Hallmark makes no representations that the Hallmark Properties or our Services are appropriate or available for use in other countries. Those who access the Hallmark Properties or use our Services from other countries do so at their own volition and are responsible for compliance with local law.
To the fullest extent permitted by law, you agree to indemnify, defend, and hold Hallmark, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the "Hallmark Parties") harmless from any losses, costs, liabilities and expenses (including reasonable attorneys' fees) relating to or arising out of: (a) your User Content; (b) your use of, misuse, or inability to use, the Hallmark Properties or our Services; (c) your violation of these Terms or any applicable Supplemental Terms; (d) your violation of any rights of another party, including other users; or (e) your violation of any applicable laws, rules or regulations.
We reserve the right, at your cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with us in asserting any available defenses.
This provision does not require you to indemnify any of the Hallmark Parties for any unconscionable commercial practice by such party or for such party's fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Services provided under these Terms. You agree that the provisions in this section will survive any termination of your account, these Terms or any applicable Supplemental Terms, or your access to the Hallmark Properties.
We reserve the right to suspend or terminate your access to all or some of our Hallmark Properties (including refusing to allow you to purchase digital or physical products or services), with or without notice, and with or without refund, if we, in our sole discretion, determine that you are in breach of these Terms or any applicable Supplemental Terms or have engaged in conduct that we, in our sole discretion, deem inappropriate.
In the event of suspension or termination by Hallmark, we may delete or change your password(s) associated with any account you may have for Hallmark Properties; delete or change your account for such Hallmark Properties, including deleting your User Content, watchlist information, and/or viewing or transaction history; and bar your further use of such Hallmark Properties, as well as that of anyone sharing your email address, payment information, telephone number, and/or physical address. You understand that we will not have any liability whatsoever to you for any suspension or termination, including for deletion of User Content.
All provisions of these Terms and any applicable Supplemental Terms which by their nature should survive termination, will survive termination of your access to the Hallmark Properties, including without limitation, ownership provisions, warranty disclaimers, limitations of liability, and dispute resolution provisions.
If your access to Hallmark Properties is terminated under these Terms, then you agree that you will not attempt to re-register with or access the Hallmark Properties through use of a different username or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those of our Hallmark Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, we reserve the right, in our sole discretion, to immediately take any or all of the actions set forth in these Terms without any notice or warning to you except where notice is specifically required in the context of the Dispute Resolution section and Arbitration Agreement set forth below).
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE HALLMARK PROPERTIES AND OUR SERVICES IS AT YOUR SOLE RISK, AND THE HALLMARK PROPERTIES AND OUR SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS. WE RESERVE THE RIGHT TO AMEND ERRORS AND UPDATE PRODUCT AND SERVICE INFORMATION AT ANY TIME WITHOUT PRIOR NOTICE. THE HALLMARK PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE HALLMARK PROPERTIES OR OUR SERVICES.
THE HALLMARK PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: OUR SERVICES WILL MEET YOUR REQUIREMENTS; YOUR USE OF OUR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; THAT THE HALLMARK PROPERTIES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR THAT THE MATERIALS OF THE HALLMARK PROPERTIES ARE CORRECT, ACCURATE, OR RELIABLE.
ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH OUR SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE HALLMARK PROPERTIES OR OUR SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
OUR SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. THE HALLMARK PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
Disclaimer of Certain Damages.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU AGREE THAT IN NO EVENT WILL THE HALLMARK PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH OUR SERVICES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE OR PROCUREMENT OF SUBSTITUTE SERVICES, WHETHER OR NOT YOU OR WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE HALLMARK PROPERTIES, OR OUR SERVICES, OR FROM ANY COMMUNICATIONS WITH OTHER USERS THEREOF, ON ANY THEORY OF LIABILITY INCLUDING, WITHOUT LIMITATION, WARRANTY, COPYRIGHT, CONTRACT, OR TORT.
Cap on Liability.
UNDER NO CIRCUMSTANCES WILL THE HALLMARK PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF THE TOTAL AMOUNT PAID TO HALLMARK BY YOU DURING THE ONE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY.
User Content.
EXCEPT FOR HALLMARK'S OBLIGATIONS TO REASONABLY PROTECT YOUR PERSONAL INFORMATION AS SET FORTH IN THE HALLMARK PRIVACY POLICY, HALLMARK ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY, OR FAILURE TO STORE ANY CONTENT, USER CONTENT, USER COMMUNICATIONS, OR PERSONALIZATION SETTINGS.
Basis of the Bargain.
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN HALLMARK AND YOU.
PLEASE READ THIS SECTION (“Arbitration Agreement”) CAREFULLY. THIS ARBITRATION AGREEMENT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR FINAL BINDING INDIVIDUAL ARBITRATION AND A WAIVER OF ANY AND ALL RIGHTS TO PROCEED IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR COLLECTIVE ACTION.
Most customer concerns can be resolved by reaching out to our Customer Care team. If Customer Care is unable to resolve a complaint to your satisfaction, this section explains how any Dispute (as defined below) will be resolved.
For purposes of this Arbitration Agreement, the terms “Hallmark,” “our,” “we” or “us” includes Hallmark Marketing, LLC, Hallmark Media United States, LLC, DaySpring Cards, Inc., Hallmark Business Connections, LLC, and their family of companies, as well as their respective present or future affiliates or subsidiaries, and any persons or entities (including agents, representatives or employees) related to Hallmark or its present or future affiliates or subsidiaries.
Applicability of Arbitration Agreement
YOU AND HALLMARK AGREE THAT ANY DISPUTE (AS DEFINED BELOW) SHALL BE RESOLVED BY FINAL AND BINDING INDIVIDUAL ARBITRATION, RATHER THAN IN COURT, except as provided herein. Notwithstanding the foregoing, you and Hallmark agree that (1) you or Hallmark may assert claims in small claims court if your or our claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or Hallmark may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement will apply, without limitation, to all claims that arose or were asserted before the effective date of these Terms or any prior agreements with Hallmark.
BY AGREEING TO ARBITRATION, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST HALLMARK ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST HALLMARK IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THIS AGREEMENT, INCLUDING THIS ARBITRATION AGREEMENT.
This Arbitration Agreement Applies to any “Dispute.”
For the purposes of this Arbitration Agreement, “Dispute” shall include, but is not limited to, any claim or controversy between you and Hallmark that is related in any way to these Terms, or any Supplemental Terms, your access to or use of the Services, the Hallmark Properties and/or subscriptions, including, but not limited to, your use of the site, sales, returns, refunds, cancellations, defects, policies, privacy, advertising, and/or communications between you and Hallmark, even if the Dispute arises after the termination of your relationship with Hallmark. “Dispute” also includes, without limitation, claims that (a) you bring against our employees, agents, affiliates, or other representatives; (b) Hallmark brings against you; (c) in any way relate to or arise out of any aspect of the relationship between you and Hallmark, whether based in contract, tort, statute, fraud, misrepresentation, advertising claims, or any other legal theory; (d) arose before you entered into these Terms or out of a prior agreement with Hallmark (including, without limitation, claims relating to advertising); (e) are subject to ongoing litigation where you are not a party or a class member; and/or (f) arise after the termination of these Terms. “Dispute,” however, does not include disagreements or claims concerning patents, copyrights, trademarks, trade secrets, claims of piracy, or unauthorized use of intellectual property, or claims for personal bodily injury, which shall not be subject to arbitration, or the notice and informal process described below. The arbitrator shall decide all issues except (1) those that are specifically addressed herein, (2) those issues relating to the scope, validity, and enforceability of the Arbitration Agreement, and (3) any issues arising from or relating to the arbitrability of any Dispute, all of which are for a court of competent jurisdiction to decide. These Terms and this Arbitration Agreement do not prevent you from bringing your Dispute to the attention of any federal, state, or local government agency.
Pre-Arbitration Informal Dispute Resolution.
You and Hallmark agree to make a good faith effort to resolve any dispute informally prior to you or Hallmark initiating an arbitration proceeding. You or Hallmark must first send a written notice to the other party providing a detailed description of the Dispute; your or our name and contact information (address, telephone number, email address, and account number if applicable); sufficient information to enable you or us to identify any transaction at issue; and a detailed description of (1) the nature and basis of any claims and (2) the nature and basis of the relief sought (including a detailed calculation of any financial relief sought). Your notice to us must be personally signed by you (and your attorney if you are represented by legal counsel). Our notice to you must be personally signed by a Hallmark representative (and our attorney if we are represented by legal counsel).
Your notice to Hallmark should be sent to our registered agent CT Corporation System, 120 South Central Ave., Clayton, MO, 63105, with a copy to Hallmark, c/o General Counsel, P.O. Box 419580, Mail Drop #339, Kansas City, MO, 64141. Our notice to you will be sent to the most recent contact information that you have provided to us.
For a period of 60 days from the date of receipt of a completed notice from the other party, you and we will work together using reasonable, good-faith efforts to try to resolve the Dispute. If requested by us in connection with a notice initiated by you, you must personally participate in an individualized telephone settlement conference (and if you are represented by an attorney, your attorney may also participate) to discuss a potential resolution. If requested by you in connection with a notice initiated by us, a Hallmark representative must personally participate in an individualized, telephone settlement conference (and if we are represented by an attorney, our attorney may also participate). If the Dispute is not resolved within this 60-day period (which period can be extended by agreement of the parties), you or we may commence arbitration consistent with the process set forth below. Compliance with this informal dispute resolution process is mandatory and a condition precedent to initiating arbitration.
Any applicable limitations period (including statutes of limitations) shall be tolled while the parties engage in this informal dispute resolution process.
If the sufficiency of a notice or compliance with this informal dispute resolution process is at issue, such sufficiency may be decided by a court of competent jurisdiction at either party's election, and any arbitration shall be stayed pending resolution of the issue. The court shall have the authority to enforce this condition precedent to arbitration, which includes the power to enjoin the filing or prosecution of a demand for arbitration or the assessment or payment of arbitration fees. You or we may also elect to raise non-compliance with this informal dispute resolution process and seek relief with a process arbitrator (as applicable) or in arbitration.
Arbitration Rules and Forum.
The Federal Arbitration Act governs, 9 U.S.C. § 1, et seq., and federal arbitration law apply to this agreement, and govern the interpretation and enforcement of this Arbitration Agreement.
To begin an arbitration proceeding, you must send an arbitration demand to the American Arbitration Association (“AAA”), adr.org, 1.800.778.7879 (for any claim), with a copy to our registered agent, CT Corporation System, 120 South Central Ave., Clayton, MO, 63105.
The arbitration demand must be accompanied by a certification personally signed by you (and your attorney, if you are represented by legal counsel) if you are initiating the arbitration or by representative of Hallmark (and our attorney, if we are represented by counsel) if we initiate the arbitration. Such statement must state that you or we, as applicable, satisfied the pre-arbitration informal dispute resolution process. By signing the certification, the attorney represents that to the best of their information, knowledge, and belief, formed after a reasonable inquiry that: (1) the arbitration demand is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims or other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after reasonable opportunity for further investigation or discovery. The arbitrator shall be authorized to impose any sanctions available under Federal Rule of Civil Procedure 11 on the parties and/or their counsel.
The arbitration will be conducted by and in accordance with the applicable rules of the AAA, and any supplementary rules, as modified by this Arbitration Agreement. If the AAA is unavailable or unwilling to administer the arbitration consistent with this Arbitration Agreement, the parties shall make a good faith effort to agree on an administrator that will do so. If the parties cannot agree on an administrator, they shall jointly petition a court of competent jurisdiction to appoint an administrator that will administer the arbitration consistent with this Arbitration Agreement.
Payment of all filing, administration and arbitrator fees will be governed by AAA’s applicable rules, including the Consumer Arbitration Rules and as applicable), as modified by this Arbitration Agreement. AAA’s rules may be found on its website, adr.org, or by contacting AAA. If the arbitrator finds that you cannot afford to pay the AAA filing, administrative, hearing and/or other fees and cannot obtain a waiver from the AAA, Hallmark will reimburse them for you. Notwithstanding anything to the contrary herein, if Hallmark is required to pay your portion of the arbitration fee for this Arbitration Agreement to be enforceable, it shall do so. To the fullest extent permissible by law, the cost-shifting provisions of Federal Rule of Civil Procedure 68 shall apply, and shall be enforced by the arbitrator after the entry of an award.
Except as specifically provided herein, you may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the countrycounty where you live or at another mutually agreed location., except any Dispute over $25,000 shall have an in-person or video hearing. You and Hallmark reserve the right to request a hearing in any matter from the arbitrator. You and Hallmark agree that your respective representatives will personally appear at any hearing (along with your respective legal counsel, if the parties are represented by legal counsel). If an in-person arbitration hearing is required, then it will be conducted at a location that is reasonably convenient to you or at another mutually agreed-upon location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
You and Hallmark agree that we have a shared interest in reducing the fees and costs and increasing the efficiencies associated with arbitration. Therefore, either party may negotiate with the AAA for reduced or deferred arbitration fees, and you and Hallmark agree that the parties (and your and our counsel, if you and we are represented by legal counsel) will work together in good faith to ensure that arbitration remains cost-effective for all parties.
Authority of Arbitrator.
The arbitration will be conducted by a single arbitrator. The arbitrator will apply and be bound by these Terms as a court would, and will adjudicate any Dispute according to applicable law and facts based upon the record, and not based upon any other basis. The arbitrator will decide the rights and liabilities, if any, of you and Hallmark. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum's rules, and these Terms (including the Arbitration Agreement). The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us, but shall have no preclusive effect in any other arbitration or proceeding involving a different party.
Additional Procedures for Mass Arbitration.
If twenty-five (25) or more similar claims (also referred to as “cases”) are asserted against Hallmark by the same or coordinated counsel or are otherwise coordinated (and your claim is one such claim), you and Hallmark agree that these additional procedures set forth in this subsection will apply. You and Hallmark also understand and agree that, in such event, the resolution of the Dispute might be delayed.
You and Hallmark also agree to the following process and application of the AAA Multiple Consumer Case Filing Fee Schedule and Supplementary Rules. Counsel for the claimants and counsel for Hallmark shall each select twenty (20) cases (per side) to proceed first in individual arbitration proceedings as part of a staged process, unless (i) the parties otherwise agree to smaller number of cases to proceeding in this initial stage; or (ii) a Process Arbitrator directs that a smaller number of cases proceed in the initial stage. This initial stage shall be referred to as “Stage One.” (If there are fewer than forty (40) cases in total, all cases shall proceed in Stage One, unless otherwise agreed by the parties or directed by a Process Arbitrator.) The remaining cases shall not be filed or deemed filed in arbitration nor shall any AAA fees be assessed in connection with those claims until they are selected to proceed to individual arbitration proceedings, following Stage One, as part of a staged process, as set forth herein. If the parties are unable to resolve any remaining cases after the conclusion of Stage One, the parties shall participate in a global mediation session before a retired state or federal court judge, and Hallmark shall pay the mediator's fee.
If the parties are unable to resolve the remaining matters in mediation at this time, each side shall select an additional fifty (50) cases (per side) to proceed to individual arbitration proceedings as part of a second staged process, unless (i) the parties otherwise agree to smaller number of cases to proceeding in this stage; or (ii) a Process Arbitrator directs that a smaller number of cases proceed in this stage. This second stage shall be referred to as “Stage Two.” (If there are fewer than one hundred (100) cases remaining after Stage One, all remaining cases shall proceed in Stage Two unless otherwise agreed by the parties or directed by a Process Arbitrator.) The remaining cases shall not be filed or deemed filed in arbitration nor shall any AAA fees be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings as part of a staged process. If the parties are unable to resolve the remaining cases after the conclusion of Stage Two, the parties shall participate in another global mediation session before a retired state or federal court judge, and Hallmark shall pay the mediator's fee.
If the parties are unable to resolve the remaining matters in mediation at this time, this staged process shall continue with one hundred (100) cases proceeding at one time that are selected randomly or by the AAA in staged sets, until all the claims included in these coordinated filings, including your case, are adjudicated or otherwise resolved. Between staged sets of proceedings, Hallmark agrees to participate in a global mediation session should your counsel request it in an effort to resolve all remaining claims.
A single arbitrator shall preside over each case. Only one case may be assigned to each arbitrator as part of a staged process unless the parties agree otherwise.
Any applicable limitations periods (including statutes of limitations) and any arbitration fee deadlines shall be tolled for claims subject to these additional procedures from the time the first cases are selected to proceed until the time your case is selected, withdrawn, settled, or otherwise resolved. (Such tolling will be in addition to the tolling referenced above with respect to the pre-arbitration dispute resolution process).
Each arbitrator shall endeavor to issue their award within 120 days of their appointment or as swiftly as possible while ensuring fairness to the parties.
Counsel for the parties will meet and confer throughout this process in an effort to informally resolve the remaining claims, streamline procedures, address the informal exchange of information, modify the number of claims to be adjudicated in any given set of staged proceedings, and ensure the process remains fair and efficient for all parties.
A court of competent jurisdiction will have the authority to enforce this “Additional Procedures for Mass Arbitration” section of the Arbitration Agreement, including by enjoining the mass filing, the prosecution or administration of arbitrations, or the assessment or collection of AAA fees.
This subsection of the Arbitration Agreement and each of its requirements are intended to be severable from the rest of this Arbitration Agreement. If, after exhaustion of all appeals, a court of competent jurisdiction decides that the staging process in this subsection is not enforceable, then the claims may be filed in arbitration and the payment of AAA filing, administration, case-management, hearing, and arbitrator compensation and expenses will be assessed in accordance with applicable rules set forth by the AAA. You and we also agree that should the staging process in this subsection be deemed not enforceable as set forth above, your counsel and our counsel will work together in good faith, including with the assistance of a process arbitrator, to develop streamlined procedures for the adjudication of claims to reduce the costs and maximize the efficiency of arbitration.
Waiver of Jury Trial.
YOU AND HALLMARK HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Hallmark are instead electing that all Disputes will be resolved by arbitration under this Arbitration Agreement, except as specified herein. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Arbitration Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
Waiver of Class or Consolidated Actions.
YOU AND HALLMARK WAIVE ANY RIGHT TO BRING OR PARTICIPATE IN A CLASS ACTION IN COURT TO THE FULLEST EXTENT PERMISSIBLE BY LAW. UNLESS YOU AND WE AGREE OTHERWISE, ALL DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER, EXCEPT AS DESCRIBED IN SUBPARAGRAPH (e), ABOVE. UNLESS A WAIVER OF PUBLIC INJUNCTIVE RELIEF IS VOID UNDER APPLICABLE LAW, YOU WAIVE ANY RIGHT TO SEEK PUBLIC INJUNCTIVE RELIEF IN CONNECTION WITH YOUR DISPUTE. In the event that this subparagraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims and disputes will be resolved in a court as set forth below.
Severability.
If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts will be of no force and effect and will be severed and the remainder of the Arbitration Agreement will continue in full force and effect.
Survival of Agreement.
This Arbitration Agreement will survive the termination of your relationship with Hallmark.
Future Modifications to this Section Regarding Binding Arbitration.
Notwithstanding any provision to the contrary, we agree that if Hallmark makes any future changes to this Arbitration Agreement section (other than a change to the mailing or email address), you may reject any such change by sending us written notice personally signed by you within thirty (30) days of the change to the address provided above. This is not an opt-out of arbitration altogether. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement section.
Unless you and Hallmark agree otherwise, to the fullest extent permitted by law, the state and federal courts in Jackson County, Missouri, will have exclusive jurisdiction over any disputes (except for those brought in small claims court) that are not subject to arbitration or over any action involving the applicability or enforceability of the Arbitration Agreement contained in these Terms or any of its provisions. You and Hallmark consent to the jurisdiction of those courts and waive any objections as to personal jurisdiction or as to the laying of venue in such courts due to inconvenient forum or any other basis or any right to seek to transfer or change venue of any such action to another court.
These Terms, the Supplemental Terms, and any action related to them will be governed and interpreted by and under the laws of the State of Missouri, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms or any Supplemental Terms.
The Hallmark Properties may offer features and services that are available to you via your mobile phone or other mobile device. These features and services may include, without limitation, the ability to Upload Content to the Hallmark Properties, receive messages from the Hallmark Properties (including, without limitation, push messages), download applications to your mobile phone or access Hallmark Properties features (collectively, the "Mobile Features"). We may charge for Mobile Features. Also, standard messaging, data and other fees may be charged by your carrier. Fees and charges will appear on your mobile bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Mobile Features and certain Mobile Features may be incompatible with your carrier or mobile device. Contact your carrier with questions regarding these issues.
If you have registered for Mobile Features that utilize your mobile number, you agree to notify Hallmark of any changes to or deactivation of your mobile number and update your account(s) on the Hallmark Properties to reflect this change.
If you have registered to receive text messages from us, our Text Messaging Supplemental Terms apply and are incorporated herein by reference.
General.
You acknowledge and agree that the availability of any apps we may offer (“Apps”) are dependent on the third party from whom you received the App license (e.g., Apple App Store, Google Play, Roku, or Samsung Smart) ("App Store"). You acknowledge that these Terms are an agreement between you and us, and not with the App Store. We, not the App Store, are solely responsible for the Hallmark Properties and our Services, including the Apps, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Apps, you must have Internet access, including in some cases, wireless network services. You agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Hallmark Properties, including the Apps. You agree to comply with, and your license to use the Apps is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store's terms and policies) when using our Services, including the Apps. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of these Terms and will have the right to enforce it.
Accessing and Downloading Apps from Apple.
The following applies to any App accessed through or downloaded from the Apple App Store (an “Apple-Sourced App”):
a. Acknowledgment. You acknowledge and agree that (i) these Terms are between you and Hallmark (or any third party developer that may own or operate the App) only, and not Apple, and (ii) Hallmark, not Apple, is solely responsible for the Apple Store Sourced App and content thereof.
b. Scope of License. Your license to use the Apple Store Sourced App is non-transferable and limited to use on an Apple-branded product that you own or control, and as permitted by the “Usage Rules" set forth in the Apple Media Services Terms and Conditions.
c. Maintenance and Support. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple Store Sourced App.
d. Warranty. In the event of any failure of the Apple Store Sourced App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple Store Sourced App to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple Store Sourced App. As between Hallmark and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Hallmark.
e. Product Claims. You and Hallmark acknowledge that, as between Hallmark and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the Apple Store Sourced App or your possession and use of the Apple Store Sourced App, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple Store Sourced App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
f. Intellectual Property Rights. You and Hallmark acknowledge that, in the event of any third-party claim that the Apple Store Sourced App or your possession and use of that Apple Store Sourced App infringes that third party's intellectual property rights, as between Hallmark and Apple, Hallmark, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
g. Legal Compliance. You represent and warrant that (i) 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
h. Third Party Terms. You must comply with any applicable third party terms of agreement when using the Apple Store Sourced App (e.g., your wireless data service agreement).
i. Third Party Beneficiary. You and Hallmark acknowledge and agree that Apple, and Apple's subsidiaries, are third-party beneficiaries of these Terms as related to your license of the Apple Store Sourced App, and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the Apple Store Sourced App against you as a third-party beneficiary thereof.
Electronic Communications.
The communications between you and us use electronic means, whether you visit the Hallmark Properties or send us emails or other electronic communications, or whether we post notices on the Hallmark Properties or communicate with you via email or other electronic communications. You (1) consent to receive communications from us in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Hallmark provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
Assignment.
These Terms and any applicable Supplemental Terms, and your rights and obligations under each, may not be assigned, subcontracted, delegated or otherwise transferred by you without our prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Hallmark may assign its rights and duties under these Terms or any Supplemental Terms to any party at any time without any notice to you.
Force Majeure.
Hallmark will not be liable for any delay or failure to perform, including failure to deliver purchased Services, resulting from causes outside its reasonable control, including, but not limited to, acts of God, epidemic, pandemic, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor, materials, or any other similar or dissimilar event or cause beyond the control of Hallmark.
Questions, Complaints, Claims.
If you have any questions, complaints or claims with respect to the Hallmark Properties or our Services, please contact us at: https://care.hallmark.com/s/contactsupport.
Waiver.
Any waiver or failure to enforce any provision of these Terms or any applicable Supplemental Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Severability.
Other than with respect to the Arbitration Agreement set forth above, which has its own severability clause, if any portion of these Terms or any applicable Supplemental Terms is held invalid or unenforceable, that portion will be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions will remain in full force and effect.