Effective Date: December 8, 2022
These terms constitute a binding agreement between you and Crayola, LLC ("Crayola," "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 "Crayola Properties"). In addition, certain of the Crayola Properties are governed by additional, service-specific terms (collectively, "Supplemental Terms" and including, without limitation, the Purchase Terms and Crayola.com Text Message Terms). 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).
Changes to this Agreement
To the maximum 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 Crayola Properties, and any new Supplemental Terms will be made available from within, or through, the affected services on the applicable Crayola 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 Crayola 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.
Changes to Services
Crayola may modify, suspend, or discontinue any aspect of the products or services we offer through the Crayola Properties (collectively "Services"), at any time for any reason, with or without notice to you, including the availability of any Crayola Property, or any feature or Content (defined below) of a Crayola Property.
Except with respect to User Content (defined below), Crayola, its licensors, or suppliers own all rights, title, and interest in and to the intellectual property contained within the Crayola Properties (collectively, "Crayola Content"). The Crayola Content is protected by United States and international laws. The Crayola 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 Crayola Content, in whole or in part, except as set forth in these Terms, without the specific permission of Crayola.
Subject to your compliance with these Terms and any applicable Supplemental Terms, Crayola 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 Crayola Properties and the 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 Content available to such registered or subscribed viewers;
- To download, install, and use a copy of any downloadable application or other Content comprising or available through Crayola Properties (e.g., coloring pages or a Crayola mobile app governed by these Terms) on any computing device that you own or control solely for your personal or family use;
- To link to the Crayola Properties, provided, however, that your website or any third-party websites that link to the Crayola Properties: (a) must not frame or create a browser or border environment around any of Crayola Content or otherwise mirror any part of the Crayola Properties; (b) must not imply that Crayola is endorsing or sponsoring it or its products or services, unless Crayola has given it prior written consent; (c) must not present false information about, or disparage, tarnish, or otherwise, in Crayola sole opinion, harm Crayola or its Services; (d) must not use any Crayola trademarks without the prior written permission from Crayola; (e) must not contain content that could be construed as distasteful, offensive or controversial or otherwise objectionable (in Crayola’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 Crayola 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, Crayola reserves the right to prohibit linking to the Crayola 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 Crayola Content or the Crayola 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 Crayola 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 Crayola Properties. You acknowledge that other users of the Crayola Properties, and not Crayola, are similarly responsible for all User Content they Upload using the Crayola 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 Crayola Properties.
You acknowledge that Crayola 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 Crayola 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 Crayola’s option) with the names, voices, likenesses, or other protectable personal attributes of any persons identifiable therein, in any form, media, or technology now known or later developed, for the purposes of operating and providing the Crayola Properties and their services to you and to other users. Notwithstanding the foregoing, with respect to User Content that is provided to Crayola solely for the purpose of incorporating such User Content into a product or service ordered by you, you grant such right to Crayola for the sole purpose of making and delivering products and services ordered by you.
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, Crayola 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 Crayola are included in the above license you grant to Crayola 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 product, activity, or gift) to another individual – whether such item is physical or digital – you represent and warrant that you have the consent of the recipient to send that item. You acknowledge and agree that you, not Crayola, are the sender of such item, and that we act merely as a delivery agent.
Intellectual Property Claims
In accordance with the Digital Millennium Copyright Act of 1998 (the "DMCA"), Crayola 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 Crayola 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:
Hallmark Cards, Incorporated
2501 McGee Trafficway
Kansas City, MO 64108
If you believe that any content on the Crayola 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 email@example.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 Crayola Properties, you agree not to use the Crayola 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 Crayola 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;
- 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 Crayola;
- Engages in or attempts to engage in any potentially harmful acts that are directed against the Crayola Properties, including but not limited to violating or attempting to violate any security features of the Crayola Properties; uses manual or automated software or other means to scrape, crawl, spider, or similarly access any portion of the Crayola 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); introduces or sends viruses, worms, spyware, malware, or any other kind of harmful code into or through the Crayola Properties; interferes or attempts to interfere with the proper functioning of or use by others of the Crayola Properties, including by means of overloading, flooding, spamming, mail bombing, or crashing the Crayola 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 Crayola Properties or the Content therein; or
- 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 as expressly permitted in these Terms, including any use, copying, or distribution of User Content of third parties obtained through the Crayola 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 Crayola Property that employs it. Tampering with or circumventing such digital rights-management technology or otherwise accessing or using the Crayola 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 Crayola 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.
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. Crayola reserves the right to refuse and/or remove any User Content, and to suspend the shipping of any order or service relating to User Content, for any reason it deems, in its sole discretion, to be appropriate. By using the Crayola Properties, you irrevocably consent to such investigations and disclosures.
Security of Your Account
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 Crayola of any unauthorized access or tampering of your account, or suspected breach of security by contacting us as described here.
Equipment Requirements and Fees
You must provide all equipment and software necessary to connect to the Crayola Properties, including, for any app we may offer ("App"), a mobile device or tablet that is suitable to connect with and use such App. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Crayola Properties.
Any purchase you make online through the Crayola Properties is subject to the purchase terms or other applicable offer terms posted on the Crayola Properties, including, without limitation, our Purchase Terms here. These constitute Supplemental Terms for purposes of these Terms.
Sweepstakes, Contests, and Promotions
Any sweepstakes, contests or other promotions (any, a "Promotion") that may be offered via the Crayola 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 and any User Content you submit, 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).
Third-Party Links, Applications, and Content
Some of the Crayola 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 Crayola Properties are controlled and offered by us from its facilities in the United States. Crayola makes no representations that the Crayola Properties or our Services are appropriate or available for use in other countries. Those who access the Crayola 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 and hold Crayola, its parents (including, without limitation, Hallmark Cards, Inc.), subsidiaries, affiliates and each of their respective officers, employees, agents, partners and licensors (collectively, the "Crayola 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, or inability to use, the Crayola 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 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 Crayola 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 Crayola Properties.
Suspension and Termination
We reserve the right to suspend or terminate your access to all or some of our Crayola Properties (including refusing to allow you to purchase 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 Crayola, we may delete or change your password(s) associated with any account you may have for Crayola Properties; delete or change your account for such Crayola Properties, including deleting your User Content, wish list information, and/or transaction history; and bar your further use of such Crayola Properties, as well as that of anyone sharing your email address, payment information, and/or physical address. You understand that such actions may be taken without 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 Crayola Properties, including without limitation, ownership provisions, warranty disclaimers, limitations of liability, and dispute resolution provisions.
If your access to Crayola Properties is terminated under these Terms, then you agree that you will not attempt to re-register with or access the Crayola 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 Crayola 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.
Disclaimer of Warranties and Conditions
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE CRAYOLA PROPERTIES AND OUR SERVICES IS AT YOUR SOLE RISK, AND THE CRAYOLA 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 CRAYOLA 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 CRAYOLA PROPERTIES OR OUR SERVICES.
THE CRAYOLA 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 CRAYOLA PROPERTIES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR THAT THE CONTENT/MATERIALS OF THE CRAYOLA 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 CRAYOLA 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 CRAYOLA 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.
Limitations on Liability
Disclaimer of Certain Damages.
YOU AGREE THAT IN NO EVENT WILL THE CRAYOLA 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 ANY DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, OR PROCUREMENT OF SUBSTITUTE SERVICES, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE CRAYOLA PROPERTIES, OR OUR SERVICES, OR FROM ANY COMMUNICATIONS WITH OTHER USERS THEREOF, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE CRAYOLA PROPERTIES OR OUR SERVICES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES RESULTING FROM ANY SERVICES PURCHASED OR OBTAINED THROUGH THE CRAYOLA PROPERTIES; (3) CONDUCT OF ANY THIRD PARTY ON CRAYOLA PROPERTIES; OR (4) ANY OTHER MATTER RELATED TO THE CRAYOLA PROPERTIES OR OUR SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY WILL NOT APPLY TO LIABILITY OF A CRAYOLA PARTY FOR ANY INJURY CAUSED BY A CRAYOLA PARTY'S FRAUD OR FRAUDULENT MISREPRESENTATION.
Cap on Liability.
UNDER NO CIRCUMSTANCES WILL THE CRAYOLA PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO CRAYOLA 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 WILL NOT APPLY TO LIABILITY OF A CRAYOLA PARTY FOR ANY INJURY CAUSED BY A CRAYOLA PARTY'S FRAUD OR FRAUDULENT MISREPRESENTATION.
Basis of the Bargain.
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN CRAYOLA AND YOU.
BINDING ARBITRATION ("Arbitration Agreement")
- Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Crayola Properties, to these Terms or any Supplemental Terms, or to any Services, or to any aspect of your relationship with Crayola, 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 Crayola 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). You agree that you must commence any arbitration or other claim within one (1) year after the dispute arises, otherwise the claim is permanently barred, which means that you will no longer have the right to assert a claim regarding the dispute. 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 version of this agreement.
IF YOU AGREE TO ARBITRATION WITH CRAYOLA, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST CRAYOLA ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST CRAYOLA IN AN INDIVIDUAL ARBITRATION PROCEEDING (except for any Batch Arbitration, as described below). 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.
The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
- Process. To begin a claim, you must first send a letter describing your claim in detail, including your name and contact information, your legal claim, the specific facts giving rise to your claim (including the date(s) and amount(s) of any relevant transaction or interaction with us), and the requested relief to our registered agent: CT Corporation System, 1209 Orange Street, Wilmington, DE 19801 . You and we agree to attempt in good faith to negotiate an informal resolution of your claim. If a resolution is not reached within thirty (30) days, you may commence an arbitration action as set forth herein. 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, will 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 will 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. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. Crayola will be entitled to make an offer of judgment in the arbitration proceeding. If the offer of judgment is not accepted, and the award is not more favorable than the unaccepted offer, you will be solely responsible for all costs incurred by Crayola after the offer of judgment is made to the extent permitted by applicable law. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- Fees. 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, Crayola will pay them for you. In addition, for claims totaling less than $10,000 Crayola will reimburse all such JAMS's filing, administrative, hearing and/or other fees (but not including your attorneys’ fees) unless the arbitrator determines the claims are frivolous. If the arbitrator determines the claims are frivolous, you agree to pay Crayola’s attorneys’ fees and costs in the arbitration, to the extent permitted by applicable law.
- Authority of Arbitrator. The arbitrator, and not any federal, state or local court or agency will 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 arbitrator will decide the rights and liabilities, if any, of you and Crayola. 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.
- Waiver of Jury Trial. YOU AND CRAYOLA 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 Crayola are instead electing that all claims and disputes will be resolved by arbitration under this Arbitration Agreement, except as specified in subsection (a) 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.
- Waiver of Class or Consolidated Actions. EXCEPT WITH RESPECT TO BATCH ARBITRATION (AS DEFINED BELOW), 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 will be resolved in a court as set forth in the "Exclusive Venue" section below.
You and Crayola agree that, in the event that there are fifty (50) or more individual requests for arbitration of a similar nature filed against Crayola within an approximately (30) thirty-day period (or otherwise in close proximity) regardless of the state(s) in which such claims are filed, JAMS will administer all such similarly situated arbitration demands on a collective basis as a single, consolidated arbitration (subject to a single set of fees, proceeding schedule, and, if required, hearing) before a single arbitrator in accordance with the requirements outlined elsewhere in this section, provided that – in the event that the arbitrator deems it impracticable or inequitable to administer all such claims collectively in a single arbitration – (s)he may group demands for arbitration into groups of not fewer than twenty (20) matters, plus a remainder group as needed (or as otherwise deemed by the arbitrator to be practicable, equitable, and in best keeping with the spirit of this provision) and arbitrate each group of matters as a single, consolidated arbitration (either structure a "Batch Arbitration"). You and Crayola agree (1) to work with JAMS in good faith to facilitate the resolution of disputes on a Batch Arbitration basis and (2) that requests for arbitration are of a "similar nature" if they arise out of the same event, agreement, or factual scenario and raise the same or similar legal issues and seek the same or similar relief. Disagreements over the applicability of this Batch Arbitration process will be settled in a single, consolidated arbitration proceeding that includes all affected parties and is resolved by a single arbitrator subject to the requirements of this section. This Batch Arbitration provision shall in no way be interpreted as authorizing a class or collective arbitration or action of any kind, or any suit or arbitration involving joint or consolidated claims, under any circumstances other than those expressly set forth in this section.
- 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: Crayola LLC, Attn: Consumer Affairs, 1100 Church Lane, P.O. Box 431, Easton, PA 18044 or emailing us using the contact form available here within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Crayola username (if any), the email address you used to set up your Crayola account (if you have one or another contact email address if you do not have a Crayola account), 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.
- Severability. If any part or parts of this Arbitration Agreement is/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 Crayola.
- Modification. Notwithstanding any provision in these Terms to the contrary, we agree that if Crayola makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to Crayola.
To the extent the parties are permitted to initiate litigation in a court, both you and Crayola agree that all claims and disputes arising out of or related to these Terms or any Supplemental Terms will be litigated exclusively in the state or federal courts of Northampton County, Pennsylvania.
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 Pennsylvania, 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 Crayola 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 Crayola Properties, receive messages from the Crayola Properties (including, without limitation, push messages), download applications to your mobile phone or access Crayola 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 Crayola of any changes to or deactivation of your mobile number and update your account(s) on the Crayola Properties to reflect this change.
If you make a wish list that you have created publicly viewable by other users of the Crayola Properties and you have associated a shipping address with that wish list, your shipping address will be publicly visible to those shopping from your wish list. By creating a public wish list with an associated shipping address, you acknowledge that the shipping information will be publicly displayed to purchasers at checkout.
- 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, etc.) ("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 Crayola 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 Crayola 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 them.
- 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"):
- Acknowledgment. You acknowledge and agree that (i) these Terms are between you and Crayola (or any third-party developer that may own or operate the Apple-Sourced App) only, and not Apple, and (ii) Crayola, not Apple, is solely responsible for the Apple-Sourced App and content thereof.
- Scope of License. Your license to use the Apple-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.
- Maintenance and Support. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced App.
- Warranty. In the event of any failure of the Apple-Sourced App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-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-Sourced App. As between Crayola 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 Crayola.
- Product Claims. You and Crayola acknowledge that, as between Crayola and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the Apple-Sourced App or your possession and use of the Apple-Sourced App, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Sourced App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- Intellectual Property Rights. You and Crayola acknowledge that, in the event of any third-party claim that the Apple-Sourced App or your possession and use of that Apple-Sourced App infringes that third party's intellectual property rights, as between Crayola and Apple, Crayola, 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.
- 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.
- Third-Party Terms. You must comply with any applicable third-party terms of agreement when using the Apple-Sourced App (e.g., your wireless data service agreement).
- Third-Party Beneficiary. You and Crayola acknowledge and agree that Apple, and Apple's subsidiaries, are third-party beneficiaries of these Terms as related to your license of the Apple-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 them as related to your license of the Apple-Sourced App against you as a third-party beneficiary thereof.
- Without limiting any other terms of these Terms, you must comply with all applicable third-party terms of agreement when using the Apple-Sourced App.
- Electronic Communications. The communications between you and us use electronic means, whether you visit the Crayola Properties or send us emails or other electronic communications, or whether we post notices on the Crayola 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 Crayola 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. Crayola 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. Crayola 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 or materials, or any other similar or dissimilar event or cause beyond the control of Crayola.
- Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Crayola Properties or our Services, please contact us as specified at: crayola.com/support.aspx
- 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. If any portion of these Terms or any applicable Supplemental Terms is held invalid or unenforceable, that portion will be construed in a manner so as to be valid and enforceable while reflecting, as nearly as possible, the original intention of the parties, and the remaining portions will remain in full force and effect.
- Entire Agreement. These Terms together with any applicable Supplemental 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. As used in these Terms, "including" means "including without limitation."