Terms and Conditions for Hallmark’s Use of User-Generated Content
Olapic, Inc. (“Olapic”) provides social content management services to Hallmark Marketing Company, LLC (“Hallmark”) in connection with Hallmark’s marketing, promotional, advertising and other customer related activities (hereinafter the “Services”). Olapic facilitates the collection and uploading to Olapic’s own website at www.olapic.com (the “Site”) and to websites (including but not limited to www.hallmark.com and ideas.hallmark.com), social media sites, blogs and other digital properties operated by Hallmark (hereinafter the “Hallmark Properties”) of photos, text, graphics, audio, video, location information, comments and other materials from social media sites, including but not limited to Facebook, Twitter, Instagram, Tumblr, Flickr, and YouTube that users have tagged or permitted others to tag with Hallmark-related hashtags or geo-location tags and/or that users or others acting on their behalf or with their permission to upload directly with or without tags onto the Hallmark Properties for use by Hallmark in connection with its business, including but not limited to the Services.
Use of Service
By providing authorization to Hallmark via #YesHallmark via social media in response to Hallmark’s request to repost or reuse your User Generated Content (such as, but not limited to, text, photography, audiovisual work, illustration and graphic design, hereafter referred to as “the UGC”), and in consideration for the opportunity to have the UGC considered by Hallmark for such reposting or reusing, you agree to the following:
1) You represent and warrant that:
a) You are a legal adult eighteen (18) years of age or older and a legal resident of the United States of America (i.e., its fifty states and the District of Columbia).
b) Either you are not a current employee of Hallmark or of any of its parents, subsidiaries, or affiliates (collectively, “the Hallmark Companies”), nor a current or former employee of any competitor of the Hallmark Companies (including but not limited to American Greetings Corporation and its affiliates); or, if you are currently an employee of one of the Hallmark Companies, your employer’s rights in the UGC is governed by your employment agreement (if any) and any other law that is applicable on account of you being an employee, rather than the terms of this agreement, though you agree that such rights shall, in any event, not be less than are set forth in this agreement
c) The UGC is original to you, and you are the sole owner, creator, inventor and/or author of the UGC.
d) The use of the UGC by any of the Licensees (as defined below), in accordance with these terms and conditions, will not be libel or defame any person nor infringe the rights of any third parties (including copyright, trademark, right of privacy, and right of publicity), and you have all rights and permissions necessary for the Licensees’ use of the UGC.
2) You hereby grant to Hallmark and its affiliates, parents, subsidiaries, venture partners and agencies, successors and assigns, and each of their respective officers, directors, employees, agents and legal representatives, and those acting with authority or permission from any of them (collectively, “Licensees”), an irrevocable, royalty-free, sub-licensable, transferable, worldwide right and license to use, publish, display, edit, modify, embed, link to, and/or distribute in perpetuity the UGC, in whole or in part, as well as to use your name, voice, image, likeness, biographical information or any other identifiable representation or personal indicia of you (collectively, “Likeness”) in connection with a Licensee’s use of the UGC. The UGC may appear in any form, style, color or medium whatsoever now existing or developed in the future (including, without limitation, photographs, videotapes, films, sound recordings, software, drawings, print publications, broadcast, Internet and electronic media, and social media) and for any purpose, including, but not limited to, illustration, promotion, marketing, art, education, advertising, and trade.
3) You understand and agree that you will not receive any monetary compensation for use of the UGC and/or your likeness as provided herein.
4) These terms and conditions set forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersede all other oral or written representations and understandings. This Agreement shall be governed by the laws of the State of Missouri without regard to the principles of conflicts of laws and may not be amended, modified or waived except in a written document signed by you and Hallmark. You acknowledge that any and all controversies arising out of or in any way relating to this Agreement or the UGC shall be settled by final and binding arbitration which will take place in Kansas City, Missouri, pursuant to the rules then obtaining of the American Arbitration Association. The award of the arbitrator shall be enforceable according to the applicable laws of the State of Missouri. The arbitrator shall only award damages, with the maximum amount that can be awarded to you not to exceed $5,000. Any proceeding that you may choose to bring shall be initiated within six (6) months after the date of first use by Hallmark of the UGC.
Notice of Copyright or Intellectual Property Infringement
We respect the intellectual property rights of others. Please notify us in writing, by email or mail to our designated agent listed below, if you believe that a user of the Site has infringed your intellectual property rights.
To be effective, the notification should include:
- identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
- identification of the claimed infringing material and information reasonably sufficient to permit Hallmark to locate the material on the Site;
- information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an email address;
- a 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;
- a statement by you, made under penalty of perjury, that the above information in your notification is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and your physical or electronic signature.
You acknowledge and agree that upon receipt and notice of a claim of infringement, we may immediately remove the identified materials from the Site without liability.
Counter-Notice by Accused User
If we have taken down your materials due to suspicion of copyright infringement, you may dispute the alleged infringement by sending a written communication by email or mail to our designated agent below. That written communication should include the following:
- your physical or electronic signature;
- identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
- your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which such address is located, or if your address is outside of the United States, the Federal District Court for the Northern District of California, and that you will accept service of process from the person who provided notification of copyright infringement or an agent of such person.
Please send all notices under the above copyright infringement policies by email or mail to the following individual, designated as Hallmark’s agent for receipt of notifications of claimed infringement:
David N. Johnson
Assistant General Counsel
Hallmark Cards, Incorporated
Legal Division #339
P.O. Box 419126
Kansas City, MO 64141-6126
tel. 816.274.8397, fax 816.274.7171
Please do not send notices or inquiries about anything other than alleged copyright infringement to our Agent for Notice.