Terms of Service

Terms and Conditions

General

BY SELECTING THE “I ACCEPT THE TERMS AND CONDITIONS” CHECK BOX DISPLAYED AS PART OF THE ORDERING PROCESS, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE “AGREEMENT”) GOVERNING YOUR USE OF THE ETERNAL MEMORIAL SYSTEM AND ITS SERVICES, INCLUDING YOUR USE OF SOFTWARE AND ASSOCIATED APIS AND INTERFACES (COLLECTIVELY, THE “SERVICE”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT SELECT THE “I ACCEPT THE TERMS AND CONDITIONS” CHECK BOX AND MAY NOT USE THE SERVICE.

As part of the Service, Eternal Memorial will provide you with use of the Eternal Memorial Software, including a browser interface, software applications and data encryption, transmission, access and storage. Your registration for, or use of, the Service shall be deemed to be your agreement to abide by this Agreement including any materials available on the Eternal Memorial website incorporated by reference herein.

Eternal Memorial alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Eternal Memorial Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the Eternal Memorial Technology or the Intellectual Property Rights owned by Eternal Memorial. The Eternal Memorial name, the Eternal Memorial logo, and the product names associated with the Service are trademarks of Eternal Memorial or third parties, and no right or license is granted to use them.

The purpose of the contract between the client and Eternal Memorial is the providing of online memorial services, where the client can create an online memorial, store images, data and personal details of  the deceased.

Eternal Memorial hereby grants you a non-exclusive, non-transferable, worldwide right to use the Service, solely for your own private or business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by Eternal Memorial and its licensors.

You may not access the Service if you are a direct competitor of Eternal Memorial, except with Eternal Memorial’s prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.

You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. User licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Service.

You may use the Service only for your own and/or business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorised access to the Service or its related systems or networks.

Validity

We, Eternal Memorial Australia Level 36, Governor Phillip Tower, 1 Farrer Place, Sydney Australia (referred to henceforth as “Eternal Memorial”), deduce contracts, that comply with all terms and conditions entailed in the ensuing document. The customer is not entitled to any own terms that differentiate from Eternal Memorial’s terms, even for emphasized terms, neither will Eternal Memorial be bound to a client’s statement of requirements if they overrule Eternal Memorial’s terms.

Irrespective of any prior protests, use of any products and/or services will be considered as acceptance by the client of Eternal Memorial’s outlined terms. Terms and conditions contained herein will be considered binding at the completion of the contract through registration and additional purchase of services.

Client’s own terms that differentiate from Eternal Memorial’s terms will not be acknowledged as binding without written confirmation from Eternal Memorial stating otherwise.

Definitions & Contract Conclusion

A “user” or “client” is defined as any physical person who arranges a contract for himself personally or as a legal representative of a commercial legal entity.

A “memorial“ is a web page that is created by you using Eternal Memorial’s “Memorial Creator” that contains, personal information, data, images, third party links, that are visually reproduced and saved on Eternal Memorial’s servers.

As used in this Agreement and in any Order Forms now or hereafter associated herewith: “Agreement” means these online terms of use, and any materials available on the Eternal Memorial website specifically incorporated by reference herein, as such materials, including the terms of this Agreement, may be updated by Eternal Memorial from time to time in its sole discretion.

“Content” means the audio and visual information, documents, software, products and services contained or made available to you in the course of using the Service.

“Customer Data” means any data, information or material provided or submitted by you to the Service in the course of using the Service.

“Effective Date” means the earlier of either the date this Agreement is accepted by selecting the “I Accept” option presented on the screen after this Agreement is displayed or the date you begin using the Service;

“Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world;

“License Administrator(s)” means those Users designated by you who are authorised to purchase licenses online using the Eternal Memorial Customer Portal and to create User accounts with the Eternal Memorial Client and otherwise administer your use of the Service;

“License Term(s)” means the period(s) during which a specified number of Users are licensed to use the Service; “Eternal Memorial Website” means Eternal Memorial’s online application that allows the License Administrator designated by you to, among other things, subscribe to various functions within the Service.

“Eternal Memorial” means collectively Eternal Memorial Global, having its principal place of business in Sydney, Australia.

“Eternal Memorial Technology” means all of Eternal Memorial’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by Eternal Memorial in providing the Service.

“Service(s)” means Eternal Memorial’s Software System, including functions made available by the Eternal Memorial Website, the Eternal Memorial software, the Eternal Memorial Client Software and associated APIs and interfaces, products and services provided to you by Eternal Memorial, to which you are being granted access under this Agreement, including the Eternal Memorial Technology and the Content.

Section I.        

Fees, Payment, and Billing

Each Memorial is regarded as a separate contract; however, they are billed together in packages. The client will be emailed a receipt electronically for all purchases.

The amounts payable will be debited via the credit card payment method that was submitted as “standard”.

If the customer initiates a credit card chargeback, without clarification and approval through Eternal Memorial, Eternal Memorial will relay the fees that it receives to the customer.

Cancellation through Users

Each memorial must be deleted separately or the customer has to make clear in his statement that the entire account with all memorial/s should be terminated. To terminate a contract, the customer can delete a memorial in his account by himself, this does not require help from Eternal Memorial.

Ownership, Archiving, and Copyright

The products of Eternal Memorial are prepared explicitly in agreement with the client’s guidelines. Eternal MemorialMail has no effect on the content of the memorials. The client ensures Eternal Memorial all rights of use, transfer, and rights to make publicly obtainable any client data processed by Eternal Memorial, principally with respect to text and image material. If Eternal Memorial is alleged to have damaged the rights of a third party, in particular due to any copyright violations, the client is required to make Eternal Memorial exempt from all claims and to insure Eternal Memorial from all claims upon first demand, as long as the client is accountable for that deterioration of rights.

Should a third-party claim against the client for the destruction of industrial property rights in connection with the products provided by Eternal Memorial, the client must notify Eternal Memorial immediately. Eternal Memorial is not responsible for any damages incurred as a result of patent or copyright violation. The client awards Eternal Memorial the non-exclusive rights to use of all content as provided by them during the course of the contract.

Eternal Memorial will constantly make an effort to guarantee the highest quality in the exercise of their duties and software. Nonetheless, because of things like the effect of different image quality and devices used in the process, colour and quality deviations cannot be ruled out.

If you resell Eternal Memorial’s services to third parties, you may not use Eternal Memorial’s brand name at your web site or in your communication with your customers, nor make any claims of having any relation or partnership with Eternal Memorial, unless this has been explicitly approved in writing by Eternal Memorial.

You accept that Eternal Memorial’s services are subject to fair usage limitations, and that usage beyond normal individual private and business usage is not allowed, and that Eternal Memorial retains the right to define what is normal business usage.

You understand that your use of threats or abusive behaviour or the use of profane language towards Eternal Memorial or Eternal Memorial’s staff may lead to restrictions in your access to Eternal Memorial’s Customer service, and that repeated threats and abusive behaviour or profane language can be classified, at Eternal Memorial’s sole discretion, as a material breach against this agreement.

Account Information and Data
Eternal Memorial does not own any data, information or material that you submit to the Service in the course of using the Service (“Customer Data”). You, not Eternal Memorial, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Eternal Memorial shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data.

In case Eternal Memorial receives reports from a law enforcement authority that your account is suspected of being misused for fraudulent activities or other criminal activities, Eternal Memorial retains the right to share information and data about your account and service usage with such law enforcement authority to enable their investigations.

Intellectual Property Ownership

By accepting these terms you also agree that you have forfeited your rights to hold any claims against Eternal Memorial relating to any infringements of any Intellectual property rights that are held by you or any entity that you represent or control directly or indirectly, under the condition that such infringement is caused by the functionality of the Eternal Memorial service.

Charges and Payment of Fees
Eternal Memorial’s Services are charged in accordance with Eternal Memorial’s fees and charges. Eternal Memorial reserves the right to modify its fees and charges and to introduce new charges at any time.

All Services that carry a recurring renewal fee, such as specific memorial plans, can be cancelled by you at any time by disabling the renewal function for that Service. Eternal Memorial will not charge any additional renewal fees for any Service that you have disabled the renewal function for and you will be able to use the Service until its expiry date.

Eternal Memorial’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies or duties.

If you believe that a charge or fee is incorrect, you must contact us in writing within 30 days of the charge date of the receipt containing the amount in question to be eligible to receive an adjustment or credit.

Non-Payment and Suspension

Eternal Memorial may at its sole discretion suspend your account temporarily or permanently if the account is suspected to be used for fraudulent activities or if Eternal Memorial suspects that a payment received may be fraudulent.

Eternal Memorial may request proof of identity or proof of ownership of credit card or payment form used for paying Eternal Memorial, and Eternal Memorial may after receiving such proof decide to remove the suspension and activate your account again if Eternal Memorial finds such proof to be acceptable. If your account remains permanently suspended or if you are unwilling to provide the proof requested, Eternal Memorial shall refund all payments received from you, less any money already consumed for the use of Services.

Termination for Cause

Any breach of your payment obligations or unauthorised use of the Eternal Memorial Technology or Service will be deemed a material breach of this Agreement. Eternal Memorial, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement.

If Eternal Memorial receives reports from the Police or other trustworthy authorities that you have used The Service for fraudulent or unlawful activities, Eternal Memorial has the right to immediately terminate your access to the Service. Eternal Memorial also retains the right to immediately suspend any other Eternal Memorial accounts that you have created in the past or create in the future.

Section II.    Closing Remarks

Data Protection & Data Privacy

Client data protection is of the highest importance to Eternal Memorial. Client data disclosure or publication to third parties shall be rigorously prevented, so long as is legally conceivable. This is particularly in reference to legal obligations of data disclosure rising from mandatory governmental inquires. The selling of client data shall not be carried out under any situations.

Both parties of the contract will be responsible for the confidential handling of private data made available in exercise of the contract and for the use of such data only in accordance with the data protection procedures established contractually. For both parties of the contract, this responsibility extends to their employees, freelancers, and any other companies party to the arrangement, whether independent or related.

As outlined in this section, the rights and obligations with regard to privacy shall not be rendered invalid in the event of contractual termination.

In their “Data Protection” agreement, Eternal Memorial provides further details on data protection agreements and guidelines.

Availability

Eternal Memorial endeavours to ensure a non-stop service and can assure an average 98% availability of services over an annual period, subject to the limiting factors defined in the section below. Eternal Memorial cannot guarantee the availability of its services during periods of technical difficulties or other difficulties that are out of the control of Eternal Memorial. These can include: acts of God, emergency maintenance, IT-infrastructure faults, third-party default, and faults regarding client Internet access, etc. If the security of the network provider or the network security be threatened for reasons out of Eternal Memorial’s control, Eternal Memorial may take essential action to briefly diminish access to its services.

For any foreseeable outages that result from maintenance work, the client will be notified in advance and within a sensible time period. Related claims cannot be derived in this respect.

Changes to Services and the Terms and Conditions

The scope of services offered by Eternal Memorial, the user accounts, and their technical arrangement are all delivered in line with the technical standards of service and performance standards dominant at the time of completion of the contract. Eternal Memorial retains the right to broaden, adjust, or reduce its functions as long as it serves as a technical improvement, is necessary in order to mitigate misuse, or is required of Eternal Memorial on legal grounds.

Eternal Memorial maintains the right to change or amend these terms and conditions in the interest of its registered clients as long as these adjustments are required, to provide a simpler and more secure service, to adapt to technical or legal developments, and, in particular, to protect against service misuse.

The commercial agreements and the entire legal relationship between Eternal Memorial and the client are administered under Australian Federal Law under the exclusion of Private International Law. Place of jurisdiction is NSW.

Should the client be a trader, legal entity under public law, or special fund under public law, the place of jurisdiction for all contractual disputes is to be regarded as that prevailing at the location of the registered office of Eternal Memorial.

Should either party believe any clause or agreement set out in the above terms and conditions or any other agreement is, or will be in future, ineffective, the remainder of the terms or contract shall remain thereby unaffected. Any adjustments made whereby an effective agreement replaces an ineffective one, must ensure that the economic goals achieved with respect to the clause continue to be as unaffected as possible.

Mutual Indemnification

You shall indemnify and hold Eternal Memorial, its licensors and each such party’s parent organisations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that your use of the Service infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you or your Users of this Agreement, provided in any such case that Eternal Memorial (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release Eternal Memorial of all liability and such settlement does not affect Eternal Memorial’s business or Service); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim.

Eternal Memorial shall indemnify and hold you and your parent organisations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by Eternal Memorial of its representations or warranties; or (iii) a claim arising from breach of this Agreement by Eternal Memorial; provided that you (a) promptly give written notice of the claim to Eternal Memorial; (b) give Eternal Memorial sole control of the defense and settlement of the claim (provided that Eternal Memorial may not settle or defend any claim unless it unconditionally releases you of all liability); (c) provide to Eternal Memorial all available information and assistance; and (d) have not compromised or settled such claim. Eternal Memorial shall have no indemnification obligation, and you shall indemnify Eternal Memorial pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of your products, service, hardware or business process(s).

Disclaimer of Warranties

ETERNAL MEMORIAL AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. ETERNAL MEMORIAL AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY ETERNAL MEMORIAL AND ITS LICENSORS.

ETERNAL MEMORIAL’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. ETERNAL MEMORIAL IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

Limitation of Liability

IN NO EVENT, SHALL EITHER PARTY’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Questions or Additional Information:
If you have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to [email protected]

In case of a conflict or discrepancy between the terms and conditions defined by this agreement and any information provided to you by a Eternal Memorial representative, then the information provided by the representative shall be deemed invalid and the terms and conditions specified in this agreement shall prevail.