Last Updated: October 10, 2017
- Hallmark Movies Now - a video subscription service for viewing family-friendly movies, shows, and other programming (www.hallmarkmoviesnow, www.hmnow.com and the Hallmark Movies Now apps), which is operated by Hallmark Labs in conjunction with channels owned and operated by Crown Media United States,
- Hallmark eCards - an online electronic greeting card subscription service (www.hallmarkecards.com and the Hallmark ecards apps)
- Shoebox - a print on demand greeting card app
By clicking the "I accept" button, completing the registration process, making a purchase, browsing any of our websites, and/or downloading any of our apps, you represent that: (1) you have read, understand, and agree to be bound by these Terms, (2) you are of legal age to form a binding contract with Hallmark Labs, and (3) you have the authority to enter into this Terms agreement. For clarity, the term "you" refers to the individual or legal entity, as applicable, identified as the user when you complete an account registrations or make a purchase, and in the case of a legal entity, you represent that you are authorized to bind that entity to these Terms.
IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MAY NOT ACCESS OR USE OUR SERVICES.
FOR SUBSCRIPTION SERVICES: IF YOU SUBSCRIBE TO ANY SUBSCRIPTION SERVICE FOR A TERM (THE "INITIAL SUBSCRIPTION PERIOD
"), THE INITIAL SUBSCRIPTION PERIOD WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL SUBSCRIPTION PERIOD (EACH, A "RENEWAL SUBSCRIPTION PERIOD
") AT THE THEN-CURRENT FEE FOR SUCH SUBSCRIPTION SERVICES UNLESS YOU DECLINE TO RENEW YOUR SUBSCRIPTION IN ACCORDANCE WITH SECTION 14.2(b) BELOW.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF OUR SERVICES 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 ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS TERMS AGREEMENT.
Any changes to the Agreement will be effective immediately for new Users of our Services and will be effective thirty (30) days after posting notice of such changes as provided above, except if we make any material changes and you are a Registered User (defined in Section 5 (Registration)), we will also send an email to you at the last email address you provided to us pursuant to this Agreement and any material changes shall be effective upon the earlier of thirty (30) days after posting notice of such changes on the websites or apps or thirty (30) days after sending of the email notice to you. Hallmark Labs may, but is not obligated, to require you to provide consent to the updated Terms in a specified manner before further use of our Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using our Services. Otherwise, your continued use of any of our Services constitutes your acceptance of such change(s).
Your use of, and participation in, certain Services may be subject to additional Supplemental Terms and such Supplemental Terms will either be listed in these Terms or will be presented to you for your acceptance when you sign up to purchase or use those Services. If these Terms are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. Any Supplemental Terms will become part of these Terms.
- 1. Hallmark Labs Ownership. Except with respect to User Content (defined in Section 7.1), you agree that Hallmark Labs and its affiliates (such as Crown Media United States, LLC and Hallmark Licensing LLC), licensors and suppliers own all rights, title and interest in our Services (including, but not limited to, any titles, computer code, themes, objects, films, artwork, animations, musical compositions, audiovisual effects, moral rights, documentation, features and functionality of the websites and apps, and server software). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any or all of our Services.
- 1.1 Copyright. The content, including text, images, audio-visual works, computer code, music compositions, and sound recordings, on our Services is protected by copyright and other intellectual property laws throughout the world. We use copyrighted materials from various individuals and entities. If copyright notices for such material are required, they are set forth wherever such licensed material appears on our Services.
- 1.2 Trademarks. The trademarks for Hallmark, Hallmark Movies Now, Hallmark Labs, Hallmark Channel, Hallmark Movies & Mysteries, Hallmark Drama and other related logos and trademarks are owned by Hallmark Licensing, LLC (Hallmark Marks) and used under license and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in our Services are the property of their respective owners.
- 2. Licenses to Websites & Apps. Subject to your compliance with these Terms, we grant you a limited, revocable, non-exclusive, non-transferrable, non-commercial license:
- 2.1 To browse, access, and view any of our Services that are available to Visitors (defined in Section 5 (Registration)) of our websites and apps and to purchase and participate in our Services;
- 2.2 To reproduce portions of our Services for the sole purpose of using the Services for your personal or internal business purposes; and
- 2.3 To download, install and use a copy of each of the apps on any mobile device or computer that you own or control and to run such app solely for your own personal or internal business purposes.
- 3. Updates. You understand that our Services are evolving. As a result, Hallmark Labs may require you to accept updates to our Services that you have installed on your mobile device, tablet, computer or other device. You acknowledge and agree that we may update our Services with or without notifying you and that an update may be required by you to continue your use of the Services. You may need to update third-party software from time to time to use our Services. We may also remove or modify certain features, content and functionality at our sole discretion. Any future release, update or other addition to our Services shall be subject to these Terms.
- 4. Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions:
- You shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit our Services or any portion of our Services;
- You shall not frame or use framing techniques to enclose any of our Services, including any trademark or logo, (including images, text, page layout or form);
- You shall not use any metatags or other "hidden text" using Hallmark Marks;
- You shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of our Services except to the extent the foregoing restrictions are expressly prohibited by applicable law;
- You shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to "scrape" or download data from any web pages contained in our websites (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);
- Except as expressly stated herein, you shall not copy, modify, reproduce, distribute, republish, download, display, post, repost, or transmit, in any forms or by any means, any part of our Services; and
- You shall not remove or destroy any copyright notices or other proprietary markings contained on or in our Services.
Hallmark Labs and its suppliers and service providers reserve all rights not granted in these Terms. Any unauthorized use of our Services terminates the licenses granted by Hallmark Labs pursuant to these Terms.
- 5. Registration. To access certain features of our Services, you may be required to become a Registered User or a Subscriber. For purposes of these Terms, a "Registered User" of one of our Services is a user who has a registered account for that Service, and a "Subscriber" is a Registered User who has purchased one of our Subscription Services. A "Visitor" is a user who visits one of our Services without creating an Account. "Users" include Registered Users (including Subscribers) and Visitors. Please visit the applicable website and/or app for more information regarding the type of access that is provided to Visitors, Registered Users, and/or Subscribers to that website and/or app.
- 5.1 How to Register. You may subscribe to any of the Subscription Services through the applicable website or on Apple iTunes (on devices that have iTunes, e.g. Apple TV). You may also subscribe to Hallmark Movies Now Subscription Services on platforms that offer such service, such as Google Play, Amazon, Opera TV, Roku and your local multichannel video programming distributor. Please note that subscription to Hallmark Movies Now Subscription Services on one platform may not grant you access to the same service on a different platform. You may register for the Hallmark eCards on the Hallmark eCards Website or via the eCards app, and register for the Shoebox service on the Shoebox app. Please note that you may be required to separately register for each of our Websites.
- 5.2 Registration Data. In registering an Account on a Website and/or an App:
- You agree to provide true, accurate, current and complete information about yourself as prompted by the registration form (the "Registration Data"); and maintain and promptly update the Registration Data to keep it true, accurate, current and complete.
- You represent that you are (1) at least thirteen (13) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using our Services under the laws of the United States, your place of residence or any other applicable jurisdiction.
- You are responsible for all activities that occur under your Account(s).
- You agree that you shall monitor your Account(s) to restrict use by minors, and you will accept full responsibility for any unauthorized use of our Services by minors.
- You agree not to share your Account(s) or password with anyone, and you agree to (1) notify us immediately of any unauthorized use of your password or any other breach of security; and (2) exit from your Account(s) at the end of each session.
- You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per Website (and its associated App) at any given time.
- You agree not to create any Accounts or use our Services if you have been previously removed by us, or if you have been previously banned from any of our Services.
If you provide any information that is untrue, inaccurate, not current or incomplete, or we have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we have the right to suspend or terminate your Account(s) and refuse any and all current or future use of our Services (or any portion thereof). Hallmark Labs reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party's rights.
- 6. Equipment Requirements & Limits.
- 6.1 Necessary Equipment and Software. You must provide all equipment and software necessary to connect to our Services, including: (i) a mobile device or tablet that is suitable to connect with and use our Services if you want to download our Apps, and (ii) for the Hallmark Movies Now Services: 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 our Services.
- 6.2 Cable Subscription Access Not Included. A subscription to the Hallmark Movies Now service through an App (for example Roku, Apple iOS or AppleTV, Amazon Fire, blue-ray player or Chromecast) or through our website (an Internet Subscription) does not entitle you to authenticate or log-in to any subscription or payment based Hallmark service offered through cable TV providers (such as on-demand or MVPD subscription services to the Hallmark Channel or Hallmark Movies Now) and your purchase of a subscription to Hallmark Movies Now through a cable TV provider does not allow you to authenticate or log-in to our Apps or website version of Hallmark Movies Now.
- 6.3 Viewing Limits. If you are a Hallmark Movies Now Subscriber, you may access Hallmark Movies Now Services on up to five different computer or devices associated with your Account, but you may only view Hallmark Movies Now Services to a maximum of two (2) different devices simultaneously.
- 6.4 Limited Rights in Services. You acknowledge and agree that the delivery of Services to you does not transfer commercial or promotional rights in those Services, in whole or in part, to you. You may not resell, rent, lease, or provide for payment the Services to any person and you shall not modify, publish, participate in the transfer or sale of, reproduction, or creation of derivative works from the Services.
- 7. Responsibility for Content.
- 7.1 Types of Content. You acknowledge that all messages, files, materials, data, text, audio, video, images, feedback or other content, including our Services (collectively, "Content"), is the sole responsibility of the party from whom such Content originated. This means that you, and not us, are entirely responsible for all Content that you upload, post, email, message, transmit or otherwise make available ("Make Available") through our Services ("Your Content"), and that you and other Users of our Services, and not Hallmark Labs, are similarly responsible for all Content you and they Make Available through our Services ("User Content").
- 7.2 No Obligation to Pre-Screen Content. You acknowledge that we have no obligation to pre-screen Content (including, User Content), although we reserve the right in our sole discretion to pre-screen, refuse or remove any Content. By entering into this Agreement, you hereby provide your irrevocable consent to such screening and/or monitoring by us. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including text or voice communications. In the event that we pre-screen, refuse or remove any Content, you acknowledge that we will do so for our own benefit, not yours. Without limiting the foregoing, we shall have the right to remove any Content that violates this Agreement or is otherwise objectionable.
- 8. User Ownership.
- 8.1 Your Content. Hallmark Labs does not claim ownership of Your Content. However, when you post or publish Your Content on or in our Services, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
- 8.2 License to Your Content. Subject to any applicable Account settings that you select, you hereby grant Hallmark Labs a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Your Content (in whole or in part) for the purposes of operating and providing our Services to you and to our other Users. Please remember that other Users may search for, see, use, modify and reproduce any of Your Content that you submit to any "public" area of our Services. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, and not us, are responsible for all of Your Content that you Make Available on or in our Services.
- 8.3 Other Content. Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in our Services.
- 8.5 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals, including a submission by voting on another submission or comment to another submission), to Hallmark Labs through any of our customer feedback pages or similar pages ("Feedback") is at your own risk and that Hallmark Labs has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Hallmark Labs a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of our Services. Your Feedback may be posted along with your username on our Services. Hallmark Labs reserves the right to remove any Feedback at any time and for any reason.
- 9. User Conduct. As a condition of your use of our Services, you agree not to use our Services for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party to) take any action or Make Available any Content on or through our Services that:
- Infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any 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 or bulk email (e.g. spam messaging);
- Involves commercial activities and/or sales without Hallmark Labs' prior written consent, such as contests, sweepstakes, barter, and/or advertising;
- Impersonates any person or entity, including any employee or representative of Hallmark Labs;
- Interferes with or attempts to interfere with the proper functioning of our Services or uses our Services in any way not expressly permitted by this Agreement;
- Engages in or attempts to engage in, any potentially harmful acts that are directed against our Services, including, but not limited to, violating or attempting to violate any security features of our Services, using manual or automated software or other means to access, "scrape," "crawl" or "spider" any pages contained in our Services, introducing viruses, worms, or similar harmful code into our Services, or interfering or attempting to interfere with use of our Services by any other User, host or network, including by means of overloading, "flooding," "spamming," "mail bombing," or "crashing" our Services;
- Uses our Services or any part thereof for any commercial purpose, including communicating or facilitating any commercial advertisement or solicitation;
- Engages in any chain letters, junk email, spamming, surveys, or other duplicative, unsolicited messages (commercial or otherwise); or
- Markets any goods or services for any business purposes.
- You further agree that you shall not Make Available any Content that contains nudity, violence, sexually explicit or offensive subject matter.
- ECard Sending: You may not use this Service to send eCards to mailing lists or to send unsolicited bulk or commercial messages. The use of computer programs which automate the process of sending or viewing any of the Materials is strictly prohibited. We reserve the right to limit, in our sole discretion and without prior notice to you, the number of cards or messages that you may send using the Service and/or the number of recipients to which you send such cards or messages. Furthermore, a member may only send 100 cards during one physical compose and send session under the constraints expressly set forth above.
- You agree to not engage in the use, copying, or distribution of any of the Content other than expressly permitted herein, including any use, copying, or distribution of User Content of third parties obtained through the Service 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 not to circumvent, disable or otherwise interfere with security related features of the Service or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Service or the Content therein.
- 10. Investigations. We may, but are not obligated to, monitor or review our Services and the Content at any time. Without limiting the foregoing, we shall have the right, in our sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates this Agreement or any applicable law. Although we do not generally monitor user activity occurring in connection with our Services or Content, if we become aware of any possible violations by you of any provision of this Agreement, we reserve the right to investigate such violations, and we may, at its sole discretion, immediately terminate your license to use our Services, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
- 11. Interactions with Other Users. YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH ANY OTHER USERS AND THIRD PARTIES WITH WHOM YOU INTERACT; provided, however, that we reserve the right, but we have no obligation, to intercede in any disputes that arise out of those interactions. You agree that Hallmark Labs 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. If you send a digital or physical card or message 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, and not us, are the sender of such card or message, and we act merely as a delivery agent.
- 12. Third-Party Materials & Services. Our Services may contain links to third-party websites, third-party applications, advertisements for third parties, and materials hosted by a third party (collectively, "Third-Party Properties"). You acknowledge and agree that it is impossible for us to monitor Third-Party Properties, such Third-Party Properties are not under our control, and that you access them at your own risk and we are not responsible for any Third-Party Properties. When you click on a link to any Third-Party Properties, we will not warn you that you have left our Services and are subject to the terms and conditions (including privacy policies) of another website or destination. We provide those Third-Party Properties only as a convenience and we do not review, approve, monitor, endorse, warrant, or make any representations about Third-Party Properties, or their products or services. When you leave our Services, this Agreement no longer governs. You should review applicable terms, privacy policies, and other policies of Third-Party Properties you visit and/or with which you enter into any transaction.
- 13. App Store Requirements.
- 13.1 App Stores. You acknowledge and agree that the availability of our Apps are dependent on the third party from whom you received the App license (e.g. Apple App Store, Google Play, or Samsung Smart) ("App Store"). You acknowledge that this Agreement is between you and us, and not with the App Store. We, not the App Store, are solely responsible for 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 access to a wireless network, and 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 our Services, 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 this Agreement and will have the right to enforce it.
- 13.2 Accessing and Download the App from iTunes. The following applies to any App accessed through or downloaded from the Apple App Store (an "App Store Sourced App"):
- (a) You will only use the App Store Sourced App (i) on an Apple-branded product that runs the iOS (Apple's proprietary operating system) and (ii) as permitted by the "Usage Rules" set forth in the Apple Media Services Terms and Conditions (http://www.apple.com/legal/internet-services/itunes/us/terms.html).
- (b) You acknowledge and agree that (i) this Agreement is concluded between you and Hallmark Labs only, and not Apple, and (ii) Hallmark Labs, not Apple, is solely responsible for the App Store Sourced App and content thereof. Your use of the App Store Sourced App must comply with the App Store Terms of Service.
- (c) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced App.
- (d) In the event of any failure of the App Store Sourced App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App 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 App Store Sourced App. As between Hallmark Labs 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 Labs.
- (e) You and Hallmark Labs acknowledge that, as between Hallmark Labs and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced App or your possession and use of the App Store Sourced App, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- (f) You and Hallmark Labs acknowledge that, in the event of any third-party claim that the App Store Sourced App or your possession and use of that App Store Sourced App infringes that third party's intellectual property rights, as between Hallmark Labs and Apple, Hallmark Labs, 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 the Agreement.
- (g) You and Hallmark Labs acknowledge and agree that Apple, and Apple's subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App Store Sourced App, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App Store Sourced App against you as a third-party beneficiary thereof.
- (h) Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced App.
- 14. Fees and Payment Terms.
- 14.1 Payment Methods. If you are a Registered User, you agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You may be required to provide us with a valid credit card (e.g. Visa, MasterCard, Discover, American Express, and JBC) or, if accepted, PayPal account information ("Payment Provider" and "Payment Provider Account") as a condition to signing up for the Services. Your Payment Provider agreement governs your use of the designated Payment Provider Account, and you must refer to that agreement and not this Agreement to determine your rights and liabilities. By providing us with your Payment Provider Account, you agree that we are authorized to immediately charge your Payment Provider Account for all fees and charges due and payable to us in connection with your Account and that no additional notice or consent is required. You agree to immediately notify us of any change in your billing address or Payment Provider Account used for payment hereunder. We reserve the right at any time to change our prices and billing methods, either immediately upon posting on our Services or by email delivery to you. Payment value will be in US dollars unless otherwise specified on the applicable Website or App.
- 14.2 Subscription Services.
- (a) Fees. You are responsible for payment of the applicable fee for any Subscription Service that you purchase (each a "Service Subscription Fee") at the time you order the Subscription Services and select your Initial Subscription Period, and for any Renewal Subscription Period. Your subscription will begin as soon as your Payment Provider Account is received (the "Subscription Service Commencement Date"), unless we notify you otherwise.
- (b) Automatic Renewal. When your Initial Subscription Period for a Subscription Service expires, and again after any subsequent Renewal Subscription Period, a new Renewal Subscription Period will automatically commence on the first day following the end of such period (each, a "Renewal Commencement Date") and continue for an additional equivalent period, at our then current price for such Subscription Service. You agree that your Subscription Service will be subject to this automatic renewal feature unless you (i) cancel your subscription at least thirty (30) days prior to the Renewal Commencement Date (or in the event that you receive a notice from Hallmark Labs that your subscription will be automatically renewed, you will have thirty (30) days from the date of the Hallmark Labs notice) and (ii) following the instructions set forth in the "Change/Cancel Subscription" page in your Account Settings for the Subscription Service. For example, a Subscriber to the Ecards Subscription Service may cancel his or her subscription by logging into his or her Ecards Account, clicking "Cancel Auto-bill," and clicking "Cancel Subscription." For example, a Subscriber to Hallmark Movies Now may cancel his or her subscription by either contacting Customer Care or online under "My Account." THE SERVICES WILL CONTINUE AT THE END OF EACH SUBSCRIPTION PERIOD UNLESS YOU CANCEL YOUR SUBSCRIPTION IN ACCORDANCE WITH THE PROCEDURE SET FORTH IN THIS SECTION 14.2.
- (c) Payment Terms. Upon renewal of your subscription, if Hallmark Labs does not receive payment from your Payment Provider Account, (i) you agree to pay all amounts due upon demand, and/or (ii) you agree that we may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider Account until payment is received (upon receipt of payment, your Subscription Services will be activated and for purposes of automatic renewal, your new Subscription Renewal Period will begin as of the day payment was received).
- (d) Billing Cycle. Fees for each Subscription Service occur at the Subscription Service Commencement Date and, thereafter they occur automatically for each Initial and Renewal Subscription Period, unless you or we cancel your membership pursuant to this Section 14.2, or you or we terminate this Agreement pursuant to Section 20 (Term and Termination of Agreement). You may be able to choose different subscription periods (e.g. annually, monthly) and/or different payment plans depending on the Subscription Service you purchase. For more information refer to the applicable Subscription Service Website (e.g. the Hallmark Movies Now Customer Care Page). In-App Subscriptions. If you subscribe to a Subscription Service through the applicable App, then you will have an in-app subscription Account, and all billing and account issues must be managed through your device's support platform. For instance, in-app billing subscribers through Apple devices must contact Apple iTunes for billing and account inquiries (step by step instructions on how to manage your subscriptions through iTunes can be found here). If you are unable to manage your account through the device's support platform, please contact [Hallmark Labs Customer Care] for help.
- (e) Subscription Refunds. We do not provide refunds for any unused portions of the Subscription Services, or unused/unwatched Services. Refunds, if issued, made will be sent to your Payment Provider Account. For more information about refund policies, visit the applicable Website or App Customer Care Page. For example, for Hallmark Movies Now visit this Hallmark Movies Now Customer Care Page.
- (f) Cancellation by You. You may cancel your Subscription Service at any time during the Initial or any Renewal Subscription Period. In the event of cancellation, Hallmark Labs does not provide refunds or credits for the remainder of the current subscription period; however, you may continue to use the Subscription Service until the end of the then current subscription period, and your subscription will not be automatically renewed after your then current Subscription Period expires.
- (g) Cancellation by Hallmark Labs. If timely payment cannot be charged to your Payment Provider for any reason, if you have materially breached any provision of the Agreement, or if Hallmark Labs is required to do so by law (e.g., where the provision of the Websites, the Apps, the Software or the Services is, or becomes, unlawful), Hallmark Labs has the right to, immediately and without notice, block access to, suspend or cancel any Services provided to you for any Subscription Services. You agree that all cancellations for cause shall be made in our sole discretion and that we shall not be liable to you or any third party for any suspension or cancellation of your Account.
- 14.3 Free Trial Subscriptions and Promotions. From time to time, we may offer a free trial subscription or membership of a specified duration. Free trials may not be combined with any other offers. You must have Internet access and a current valid accepted payment method as indicated during sign-up to begin and use our free trial. If you or another member of your household has been a User of the Service offering the free trial within the last 12 months, or if your payment method, physical address or email address have been associated with a Subscription for that service, you are not eligible to receive a free trial, unless otherwise indicated by us. Any promotion that provides access to any Subscription Services must be used within the specified time of the promotion. At the end of the promotion period, your use of that Subscription Service will expire and any further use of the Subscription Service is prohibited unless you register and pay the applicable Subscription Fee. If you are inadvertently charged for a Subscription Service, please contact Hallmark Labs to have the charges reversed.
- 14.4 Payment Disputes. You must notify us in writing within seven (7) days after receiving your credit card statement, if you dispute any of our charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to the following address: firstname.lastname@example.org
- 14.6 Taxes. Our fees are net of any applicable Sales Tax. If any Services, or payments for any Services, under the Agreement are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to us, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify us for any liability or expense we may incur in connection with such Sales Taxes. Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this Section 14.6, "Sales Tax" shall mean any sales or use tax, and any other tax measured by sales proceeds, that Hallmark Labs is permitted to pass to its customers, that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
- 15. Indemnification. You agree to indemnify and hold Hallmark Labs, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the "Hallmark Labs Parties") harmless from any losses, costs, liabilities and expenses (including reasonable attorneys' fees) relating to or arising out of: (a) Your Content; (b) your use of, or inability to use, our Services; (c) your violation of these 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 our own 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 Labs 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 hereunder. You agree that the provisions in this Section 15 will survive any termination of your Account, any Subscription Services, these Terms or your access to our Services.
- 16. Disclaimer of Warranties and Conditions. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF OUR SERVICES IS AT YOUR SOLE RISK, 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. HALLMARK LABS 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 OUR SERVICES.
- 16.1 HALLMARK LABS PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) OUR SERVICES WILL MEET YOUR REQUIREMENTS; OR (2) YOUR USE OF OUR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE.
- 16.2 ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH OUR SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS OUR SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
- 16.3 THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. HALLMARK LABS MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
- 17. Limitation of Liability.
- 17.1 Disclaimer of Certain Damages. YOU AGREE THAT IN NO EVENT SHALL HALLMARK LABS PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH OUR SERVICES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, PROCUREMENT OF SUBSTITUTE SERVICES, WHETHER OR NOT YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR OUR SERVICES, OR FROM ANY COMMUNICATIONS WITH OTHER USERS OF OUR SERVICES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE OUR SERVICES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES RESULTING FROM ANY SERVICES PURCHASED OR OBTAINED THROUGH OUR SERVICES; (3) CONDUCT OF ANY THIRD PARTY ON OUR SERVICES; OR (4) ANY OTHER MATTER RELATED TO OUR SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A HALLMARK LABS PARTY FOR ANY INJURY CAUSED BY A HALLMARK LABS PARTY'S FRAUD OR FRAUDULENT MISREPRESENTATION.
- 17.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL HALLMARK LABS PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO Hallmark Labs by you during the one-month period prior to the act, omission or occurrence giving rise to such liability OR (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A HALLMARK LABS PARTY FOR ANY INJURY CAUSED BY A HALLMARK LABS PARTY'S FRAUD OR FRAUDULENT MISREPRESENTATION.
- 17.4 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN HALLMARK LABS AND YOU.
- 18. Copyright Infringement Claims. We have adopted a policy to terminate, in appropriate circumstances, and at our sole discretion, User privileges to any or all of our Services for any User (including a Registered User) who repeatedly infringes copyright upon prompt notification to us by the copyright owner or the copyright owner's legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on our Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information:
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
- A description of the copyrighted work that you claim has been infringed;
- A description of the location on our Services of the material that you claim is infringing;
- Your address, telephone number and email address;
- 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:
[Copyright Agent Hallmark Labs, LLC
2501 McGee Trafficway, MD 339, Kansas City, Missouri 64108
- 19. Violations. If we become aware of any possible violations by you of these Terms, we reserve the right to investigate such violations. If, as a result of the investigation, we believe that criminal activity has occurred, we reserve the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Hallmark Labs is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in our Services, including Your Content, in our possession in connection with your use of our Services, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Agreement, (3) respond to any claims that Your Content violates the rights of third parties, (4) respond to your requests for customer service, or (5) protect the rights, property or personal safety of Hallmark Labs, our Affiliates, our Users or the public, and all enforcement or other government officials, as we in our sole discretion believe to be necessary or appropriate.
- 20. Term and Termination of Agreement.
- 20.1 Term. Your agreement to these Terms begins on: (i) on the date you accept the Terms or (ii), if earlier, the date you first used any of our Services (the "Effective Date"), and will remain in full force and effect while you use our Services, unless terminated earlier in accordance with these Terms.
- 20.2 Termination. We reserve the right to block access to, suspend, or terminate your access to our Website(s) and App(s), with our without notice, and with or without refund, if we, in our sole discretion, determine that you are in breach of these Terms.
- 20.3 Effect of Termination. In the event that we terminate your access to our Services, we will remove your access to the terminated website(s) and app(s); bar your right to further use of the terminated website(s) and app(s); and/or delete or change your password(s) associated with or inside your Account for the terminated website(s) and app(s). You understand that we may delete Your Content associate with any terminated website(s) and app(s) from our databases without any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. Termination of your access to all websites and apps shall terminate these Terms. All provisions of these Terms which by their nature should survive termination of any or all websites and apps shall survive termination of your access to such websites and apps, including without limitation, ownership provisions, warranty disclaimers, and limitations of liability. If your registration(s) with or ability to access our Services is discontinued by us due to your violation of any portion of these Terms or for conduct otherwise inappropriate, then you agree that you shall not attempt to re-register with or access our Services 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 our Services 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 herein without any notice or warning to you.
- 21. International Users. Our Services can be accessed 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 or Content in your country. The selection and availability of our Services may vary from country to country, device to device (because of technical limitations), and User to User. Our Services are controlled and offered by us from its facilities in the United States. Hallmark Labs makes no representations that our Services are appropriate or available for use in other locations. Those who access or use our Services from other countries do so at their own volition and are responsible for compliance with local law.
- 22. Dispute Resolution and ARBITRATION. Please read the following arbitration agreement in this Section 22 ("Arbitration Agreement") carefully. It requires you to arbitrate disputes with Hallmark Labs and limits the manner in which you can seek relief from us.
- 22.1 Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the websites or apps, to these Terms, to any Services sold or distributed through our Services, or to any aspect of your relationship with Hallmark Labs, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your 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 Labs 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 shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.
IF YOU AGREE TO ARBITRATION WITH HALLMARK LABS, 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 LABS ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST THE HALLMARK LABS 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.
- 22.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent, CT Corporation System, 818 West Seventh Street â€“ Suite 930, Los Angeles, CA 90017. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys' fees and interest, shall be subject to JAMS's most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS's most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS's rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS's filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Hallmark Labs will pay them for you. In addition, Hallmark Labs will reimburse all such JAMS's filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, Hallmark Labs will not seek attorneys' fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- 22.3 Authority of Arbitrator. The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Hallmark Labs. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall 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 shall 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.
- 22.4 Waiver of Jury Trial. YOU AND HALLMARK LABS 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 Labs are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 22.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this 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.
- 22.5 Waiver of Class or Consolidated Actions. ALL CLAIMS AND 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. In the event that this subparagraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in a court as set forth in Section 23.5.
- 22.6 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: Hallmark Labs, [3130 Wilshire Blvd., 4th Floor, Santa Monica, CA 90403 or emailing us at email@example.com], within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Hallmark Labs username (if any), the email address you used to set up your Hallmark Labs account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of these Terms will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
- 22.7 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 shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
- 22.8 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Hallmark Labs.
- 22.9 Modification. Notwithstanding any provision in these Terms to the contrary, we agree that if Hallmark Labs makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice to Hallmark Labs.
- 23. General Provisions.
- 23.1 Electronic Communications. The communications between you and us use electronic means, whether you visit our Services or send us emails, or whether we post notices on our Services or communicate with you via email. 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 Labs 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.
- 23.2 Assignment. These Terms, and your rights and obligations hereunder, 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.
- 23.3 Force Majeure. Hallmark Labs shall 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, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
- 23.4 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to our Services, please contact us at: [firstname.lastname@example.org]. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
- 23.5 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Hallmark Labs agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Jackson County, Missouri.
- 23.6 Governing Law. These 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.
- 23.7 Notice. Where we require that you provide an email address, you are responsible for providing us with your most current email address. If the last email address you provided to us is not valid, or for any reason is not capable of delivering to you any notices required or permitted by these Terms, Hallmark Labs' dispatch of the email containing such notice will nonetheless constitute effective notice. You may give notice to Hallmark Labs at the following address: [email@example.com]. Such notice shall be deemed given when received by Hallmark Labs by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the address on the first page of these Terms.
- 23.8 Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
- 23.9 Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
- 23.10 Export Control. You may not use, export, import, or transfer our Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained our Services, and any other applicable laws. In particular, but without limitation, our Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Denied Person's List or Entity List. By using our Services, 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 country that supports terrorists and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use our Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that our Services and/or technology are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Hallmark Labs Services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
- 23.11 Entire Agreement. These Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter. These Terms may be amended or superseded only be a mutually-executed writing. As used herein, "including" means "including without limitation"