Obituaryshare.com Inc. Terms of Service
These Terms of Service are effective as of January 1, 2018. THESE TERMS OF SERVICE (“TERMS”) GOVERN YOUR USE OF OUR SERVICE.
1. Acceptance of Terms
- OBITUARYSHARE.COM INC. (OBITUARYSHARE.COM INC. “We” or “Our”) provides its Service (as defined below) to (“You”) through its web site located at www.Obituaryshare.com (the “Site”), subject to these Terms.
- By accepting the Terms, or by accessing or using the Service or Site, You represent and acknowledge that You have read, understood, and agree to be bound by these Terms, and that the information You provide in registering to the Service is accurate, complete, and is Yours, Your client’s, or within Your right to use and you possess the authority to bind such client to these Terms. If You are entering into these Terms on behalf of a company or another legal entity, You represent that You have the authority to bind such entity and its affiliates to these Terms, in which case the terms “You,” “Your” or related capitalized terms herein shall refer to such individual client or entity and its affiliates. If You do not have such authority, or if You do not agree with these Terms, You must not accept these Terms and may not use the Service.
You acknowledge that these Terms constitute a contract between You and Obituaryshare.com inc., even though it is electronic and is not physically signed by You and OBITUARYSHARE.COM INC. You further acknowledge that these Terms govern Your use of the Service and, except for written addendums signed by the parties that specifically modify these Terms, these Terms supersede any other agreements between You and OBITUARYSHARE.COM INC.
2. Availability of the Site
You acknowledge that there may be interruptions in service or events that are beyond our control. While we use reasonable efforts to keep the Site accessible, the Site may be unavailable from time to time for any reason including, without limitation, routine maintenance, transmission issues, electronic malfunction, and a number of other matters that may interfere with transmission. You understand and acknowledge that due to circumstances both within and outside of our control, Site access may be interrupted, suspended or terminated. You further understand that there may be interruptions in service or events on third-party sites, including, but not limited to, Facebook, Twitter, etc., that will affect your use of the Service (defined below) and that are beyond our control to prevent or correct. Interruptions in the Service that are beyond our control shall not serve as a basis to terminate your use or demand a full or partial refund of any prepaid fees for service.
3. Description of Service
- The “Service” includes (a) the Site, (b) the OBITUARYSHARE.COM INC. OBITUARYSHARE.COM INC. Desktop Applications and Mobile Applications, and (c) the other services provided to You through the Site based on the plan purchased, including access to all software, data, text, images, sounds, videos, information, and other content made available through the Site (collectively, “Content”). Any new features added to or augmenting the Service are also subject to these Terms. Certain new features made generally available to all subscribing customers will be made available to You. However, the availability of some new features may require the payment of additional fees, and OBITUARYSHARE.COM INC. will determine, at its sole discretion, whether access to any other such new features will require an additional fee. Information will be provided to all clients.
- The Service may also include basic or expanded services based on the Service plan purchased. OBITUARYSHARE.COM INC. will use commercially reasonable efforts to make the Service available as detailed in the applicable Service plan, except for: (a) planned downtime, or (b) any unavailability caused by circumstances beyond Our reasonable control, such as, but not limited to, acts of God, acts of government, power matters, transmission issues, acts of terror or civil unrest, or technical failures beyond Our control. Your access to the Service will be supplied after payment has been processed and received
4. Mobile Applications
OBITUARYSHARE.COM INC. makes Mobile Applications to access the Service via a mobile device. To use the Mobile Application, You must have a mobile device that is compatible with the mobile service. We do not warrant that the Mobile Application will be compatible with Your mobile device. OBITUARYSHARE.COM INC. hereby grants to You a non-exclusive, non-transferable, revocable license to use an object code copy of the Mobile Application for one registered account on one mobile device owned or leased solely by You, for Your personal use. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Application, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Application to any third-party or use the Mobile Application to provide time sharing or similar services for any third-party; (iii) make any copies of the Mobile Application; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Application, features that prevent or restrict use or copying of any content accessible through the Mobile Application, or features that enforce limitations on use of the Mobile Application; or (v) delete the copyright and other proprietary rights notices on the Mobile Application. You acknowledge that We may from time to time issue upgraded versions of the Mobile Application, and may automatically electronically upgrade the version of the Mobile Application that You are using on Your mobile device. You consent to such automatic upgrading on your mobile device and agree that these Terms will apply to all such upgrades. The foregoing license grant is not a sale of the Mobile Application or any copy thereof, and OBITUARYSHARE.COM INC. and its third-party licensors or suppliers retain all right, title, and interest in and to the Mobile Application (and any copy of the Mobile Application). Standard carrier data charges may apply to Your use of the Mobile Application.
The following additional terms and conditions apply with respect to any Mobile Application that OBITUARYSHARE.COM INC. provides to you designed for use on an Apple iOS-powered mobile device (an “iOS App”):
- You acknowledge that these Terms are between You and OBITUARYSHARE.COM INC. only, and not with Apple, Inc. (“Apple”).
- Your use of the iOS App must comply with Apple’s then-current App Store Terms of Service.
- OBITUARYSHARE.COM INC., and not Apple, is solely responsible for the iOS App and the services and content available thereon. You acknowledge that Apple has no obligation to provide maintenance and support services with respect to our iOS App. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to the iOS App.
- You agree that OBITUARYSHARE.COM INC. , and not Apple, is responsible for addressing any claims by You or any third-party relating to the iOS App or your possession and/or use of the iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation, and all such claims are governed solely by these Terms and any law applicable to us as provider of the iOS App.
- You agree that OBITUARYSHARE.COM INC., and not Apple, shall be responsible, to the extent required by these Terms, for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to the iOS App or Your possession and use of the iOS App.
- 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.
- You agree to comply with all applicable third-party terms of agreement when using the iOS App (e.g., you must not be in violation of your wireless data service terms of agreement when using the iOS App).
- You agree that Apple and Apple’s subsidiaries are third-party beneficiaries to these Terms as they relate to your license of the iOS App. Upon Your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against You as they relate to Your license of the iOS App as a third-party beneficiary thereof.
The following additional terms and conditions apply with respect to any Mobile Application that OBITUARYSHARE.COM INC. provides to you designed for use on an Android-powered mobile device (an “Android App”):
- You acknowledge that these Terms are between you and OBITUARYSHARE.COM INC. only, and not with Google, Inc. (“Google”).
- Your use of the Android App must comply with Google’s then-current Android Market Terms of Service.
- Google is only a provider of the Android Market where you obtained the Android App. OBITUARYSHARE.COM INC., and not Google, is solely responsible for the Android App and the services and content available thereon. Google has no obligation or liability to You with respect to the Android App or these Terms.
- You acknowledge and agree that Google is a third-party beneficiary to the Terms as they relate to the Android App.
5. Third Party Services
- External Sites. The Service may contain links to, or otherwise may allow You to connect to and use certain third party products, services or software under separate terms and conditions (collectively, “Third-party Services”) in conjunction with Our Service. If You decide to access and use such Third-party Services, be advised that Your use of such Third-party Services is governed solely by the terms and conditions of such Third-party Services, and We do not endorse, are not responsible for, and make no representations as to such Third-party Services, their content or the manner in which they handle Your data. OBITUARYSHARE.COM INC. is not liable for any damage or loss caused or alleged to be caused by or in connection with Your access or use of any such Third-party Services, or Your reliance on the privacy practices or other policies of such Third-party Services.
- Integration. The Service may contain features that enable various Third-party Services (such as social media services like Facebook and Twitter) to be directly integrated into your OBITUARYSHARE.COM INC. account. To take advantage of these features, You will be required to register for or log into such Third-party Services on their respective websites. By enabling third party services within the Service, You are allowing OBITUARYSHARE.COM INC. to pass Your log-in information to these Third-party Services for this purpose.
6. Billing, Plan Modifications and Payments
Billing and Payments. Unless otherwise agreed to in writing by OBITUARYSHARE.COM INC., the Service is made available and is charged at the time content is inputted into the format and will be kept eternally or until Obituaryshare.com inc. chooses to take any or all content down from their site Your elected use of the site will not begin or be posted until payment information and charge authorization are provided. You may cancel your use of the site or specific content by visiting the support page and emailing the company stating you wish to remove certain content.
- Authorization to Charge Your Credit Card. By becoming a user of the Service and submitting your credit card information to OBITUARYSHARE.COM INC. you authorize OBITUARYSHARE.COM INC. to store your payment card information and to charge the billing source you have provided for your account according to the until your account is terminated. You are responsible for any charge backs that reverse from your account. You agree to allow Obituaryshare.com to recharge your credit card for any reversals of payment.
- Taxes. Unless otherwise stated, Our charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You are responsible for paying Taxes except those assessable against OBITUARYSHARE.COM INC. based on its income. We will invoice You for such Taxes if we believe we have a legal obligation to do so.
7. Intellectual Property Rights
- OBITUARYSHARE.COM INC. retains all rights, title and interest in and to all patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”) related to the Service. The rights granted to You to use the Service under these Terms do not convey any additional rights in the Service, or ownership of any Intellectual Property Rights associated therewith.
- As between You and OBITUARYSHARE.COM INC. , You own the information you provide OBITUARYSHARE.COM INC. or input on third- OBITUARYSHARE.COM INC. party websites through the Service. You grant OBITUARYSHARE.COM INC. a nonexclusive, revocable, worldwide, perpetual, unlimited fully paid up and royalty-free right to us to use copy, prepare derivative works of, distribute, publish, remove, retain, add, process, or analyze the foregoing described information for the sole purpose of providing the Service to You and Your Users (as defined below). By providing information to us or to third-parties through the Service, You represent and warrant that You are entitled to and authorized to submit the information and that the information is accurate, not confidential, and not in violation of any contractual restrictions or other third party rights. Licensee may not upload, post or otherwise make available through the Service any material protected by copyright, trademark, or any other proprietary right without first having obtained all rights, permissions and consents necessary (a) to make such content available on or through the Service, and (b) to grant OBITUARYSHARE.COM INC. the limited rights to use the content as set forth in this Agreement. The burden of determining whether any content is protected by any such right is on You.
- OBITUARYSHARE.COM INC. shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Service or otherwise use any suggestions, enhancement requests, recommendations or other feedback (“Feedback”) We receive from You. You understand and agree, however, that OBITUARYSHARE.COM INC. is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and You have no right to compel such use, display, reproduction, or distribution.
- OBITUARYSHARE.COM INC. and OBITUARYSHARE.COM INC. ’s other product and service names, and logos used or displayed on the Service are registered or unregistered trademarks of OBITUARYSHARE.COM INC. (collectively, “Marks”), and You may only use such Marks to identify yourself as a customer and user of the Service; provided You do not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks, or use the Marks to disparage or misrepresent OBITUARYSHARE.COM INC. , its services or products.
- All rights, title and interest in and to the Service and its components, including all related intellectual property rights, will remain with and belong exclusively to OBITUARYSHARE.COM INC. and its third-party vendors.
- Upon subscribing to the Service and subject to Your compliance with the terms and conditions of these Terms, OBITUARYSHARE.COM INC. grants you a non-exclusive, non-transferable, non-sublicenseable, revocable license to access and use the Service and the Site, strictly in accordance with this Agreement and subject to all the limitations set forth in this Agreement. If applicable to the plan for which you have agreed, you may create separate logins under your account for as many end user clients (each a “User”) as your plan permits.
8. Account Registration
- Subject to the terms and conditions of these Terms, You agree to access and use the Service only for Your internal business purposes as contemplated by these Terms. In order to use the Service, you are required to register for our service for which you will pay a fee for use of the Service. The fee must be prepaid in order to use the Service.
- To be eligible to use the Service, you must meet the following criteria and represent and warrant that you: (1)licensed funeral home, mortuary, or crematory ; (2) are not currently restricted from the Service, or not otherwise prohibited from having a OBITUARYSHARE.COM INC. account, (3) are not a competitor of OBITUARYSHARE.COM INC. or are not using the Service for reasons that are in competition with OBITUARYSHARE.COM INC. ; (4) have full power and authority to enter into this Agreement and doing so will not violate any other agreement to which you are a party; (5) will not violate any rights of OBITUARYSHARE.COM INC. including intellectual property rights such as copyright or trademark rights; (6) agree to provide at Your cost all equipment, software, and internet access necessary to use the Service; and (7) You have a contractual relationship with OBITUARYSHARE.COM INC.
9. Use of the Service
- You shall not, and shall not permit, induce or encourage any third party (including, without limitation, any User) (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than as expressly permitted by these Terms; (b) use the Service to process data on behalf of any third party, (c) modify, adapt or hack the Service to falsely imply any sponsorship or association with OBITUARYSHARE.COM INC. , or otherwise attempt to gain unauthorized access to the Service or its related systems or networks; (d) use the Service in any unlawful manner, including but not limited to violation of any persons privacy rights, infringing any person’s intellectual property rights, or sending spam or otherwise duplicative or unsolicited messages in violation of applicable law, (e) use the Service in any manner that interferes with or disrupts the integrity or performance of the Service and its components; (f) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any software making up the Service; (g) use the Service to knowingly post, upload, link to, send or store any content that is unlawful, racist, hateful, obscene, discriminatory, or contains any viruses, malware, Trojan horses, time bombs, or any other similar harmful software; (h) attempt to use any method to gain unauthorized access to any paid features of the Site; (i) unless otherwise explicitly agreed to in writing by OBITUARYSHARE.COM INC. , use the Site or any content obtained from it to develop, as a component of, any information, storage and retrieval system, database, information base, or similar resource (in any media now existing or hereafter developed), that is offered for commercial distribution of any kind, including through sale, license, lease, rental, subscription, or any other commercial distribution mechanism; (j) use automated scripts to collect information from or otherwise interact with the Site or the Service; (k) deep-link to the Site for any purpose (other than OBITUARYSHARE.COM INC. home page), unless expressly authorized in writing by OBITUARYSHARE.COM INC. ; (l) impersonate any other user of the Service; or (m) try to use, or use the Service in violation of these Terms.
- You are responsible for all information, data, text, messages or other materials that You or Your Users post or otherwise transmit via the Service. You are responsible for maintaining the confidentiality of Your login and account and are fully responsible for any and all activities that occur under or in connection with Your login or account. You agree and acknowledge that Your login may only be used by one (1) person, and that You will not share a single login among multiple people. You agree that You will not sell, trade or otherwise transfer Your login or account to another party and that you will not, unless otherwise specifically agreed to in writing by OBITUARYSHARE.COM INC. , charge anyone for access to any portion of the Site, or any information therein. You agree that you are responsible for anything that happens through your account, including the acts or omissions of your Users.
10. Data Privacy and Security
- In providing You the Service, We shall maintain appropriate administrative, physical and technical safeguards to protect the security, confidentiality and integrity of Your data and the personal data of Your end-users. These safeguards include encryption of Your data in transmission (using SSL or similar technologies), except for external third party integrations that do not support encryption, which You may link to the Service at Your choice. We agree to promptly notify You in the event that OBITUARYSHARE.COM INC. learns or has reason to believe that any person or entity has breached measures, or gained unauthorized access to Your data (“Information OBITUARYSHARE.COM INC. ’s Security Breach”). Upon any such discovery, We will: (a) investigate, and mitigate the effects of the Information Security Breach, (b) use Our best efforts to ensure that such Information Security Breach will not recur, and (c) assist You in remediation of the Information Security Breach. We shall use commercially reasonable efforts to promptly and properly deal with inquiries and requests from You in relation to the processing of Your data.
11. Cancellation and Termination
- You may cancel your account with OBITUARYSHARE.COM INC. at any time; however, unless OBITUARYSHARE.COM INC. is in breach of this Agreement and does not cure said breach within thirty (30) days of receiving written notice from You of an actual breach, identifying specifically the nature of the breach, You are not entitled to any refunds. We may suspend or cancel Your account without notice or refund to You if you violate this Agreement. If your account is cancelled, OBITUARYSHARE.COM INC. reserves the right to remove Your account information along with any account settings from our servers with NO liability or notice to You. Once Your account information and account settings are removed, You will not be able to recover this data and You will lose access to all of Your content (except that content stored/published to third-party websites, that data will remain on said third-party websites pursuant to those website’s terms and conditions). If You cancel the Service, Your cancellation will take effect immediately and Your data and content will be erased without any liability for OBITUARYSHARE.COM INC. .
- OBITUARYSHARE.COM INC. reserves the right to (i) modify or discontinue, temporarily or permanently, the Service (or any part thereof) and (ii) refuse any/all current and future use of the Service, suspend or terminate your account or any part thereof (or Your use of the Service), and remove and discard any of Your content within the Service if We believe that You have violated these Terms. OBITUARYSHARE.COM INC. will use reasonable efforts to contact You directly via email to warn You prior to suspension or termination of Your account. Any suspected fraudulent, abusive, or illegal activity may be grounds for immediate termination of Your use of Service, and may be referred to law enforcement authorities. OBITUARYSHARE.COM INC. shall not be liable to You or any third party for any modification, suspension or discontinuation of the Service.
12. Disclaimer of Warranties and Liability
- THE SERVICE, INCLUDING THE SITE AND CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND OBITUARYSHARE.COM INC. EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
- OBITUARYSHARE.COM INC. DOES NOT REPRESENT OR WARRANT THAT THE SERVICE, CONTENT OR MATERIALS FROM OR RELATED TO THE SERVICE ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE OR THAT THE SITE OR THE SERVICE, SERVERS, OR ANY PLATFORM APPLICATIONS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THEREFORE, YOU SHOULD EXERCISE CAUTION IN THE USE AND DOWNLOADING OF ANY SUCH SOFTWARE, CONTENT OR MATERIALS AND USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES. ALL RESPONSIBILITY OR LIABILITY FOR ANY DAMAGES CAUSED BY VIRUSES CONTAINED WITHIN THE ELECTRONIC FILE CONTAINING A FORM OR DOCUMENT IS DISCLAIMED. WITHOUT LIMITING THE FOREGOING, YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN CONTENT, MATERIAL, DATA OR SOFTWARE (INCLUDING ANY MOBILE CLIENT) FROM OR THROUGH THE SITE, THE SOFTWARE, OR ANY PLATFORM APPLICATIONS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR YOUR USE THEREOF AND ANY DAMAGES TO YOUR MOBILE DEVICE OR COMPUTER SYSTEM, LOSS OF DATA OR OTHER HARM OF ANY KIND THAT MAY RESULT.
- NO INFORMATION OR ADVICE OBTAINED FROM OBITUARYSHARE.COM INC. OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS. OBITUARYSHARE.COM INC. DISCLAIMS ALL LIABILITY FOR DAMAGES CAUSED BY ANY SUCH INTERRUPTION OR ERRORS IN THE FUNCTIONING OF THE WEBSITE, EXCEPT AS OTHERWISE EXPRESSLY SETFORTH HEREIN. FURTHERMORE, OBITUARYSHARE.COM INC. DISCLAIMS ALL LIABILITY FOR ANY MALFUNCTIONING, IMPOSSIBILITY OF ACCESS, OR POOR USE CONDITIONS OF THE SERVICE DUE TO INAPPROPRIATE EQUIPMENT, DISTURBANCES RELATED TO INTERNET SERVICE PROVIDERS, TO THE SATURATION OF THE INTERNET NETWORK, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, USER COMMUNICATIONS, PROBLEMS RELATED TO THE SERVICE OR ITS USE, LOSS OF PERSONAL CONTENT ON THE SITE, LOST OR UNDELIVERABLE EMAIL, AND FOR ANY OTHER REASON. UNDER NO CIRCUMSTANCES WILL OBITUARYSHARE.COM INC. BE RESPONSIBLE FOR ANY LOSS OR DAMAGE, INCLUDING, BUT NOT LIMITED TO PERSONAL INJURY OR DEATH, RESULTING FROM USE OF THE SITE OR THE SERVICE, OR ANY INTERACTIONS BETWEEN USERS OF THE SITE OR THE SERVICE, WHETHER ONLINE OR OFFLINE.
- OBITUARYSHARE.COM INC. provides the platform for the Service. OBITUARYSHARE.COM INC. does not control or vet user generated content for accuracy. Although We provide rules for user conduct and postings, We do not control and We are not responsible for what users post, transmit or share on or through the Site or any other website (even if such content is published on or through the Site). Furthermore, we are not responsible for any offensive, inappropriate, obscene, unlawful or otherwise objectionable content You may encounter on the Site. OBITUARYSHARE.COM INC. is not responsible for the conduct, whether online or offline, of any user of the Site or the Service. Further, OBITUARYSHARE.COM INC. is not responsible or liable in any manner for any 3rd party applications, software, viruses, etc. that are uploaded or posted on the Site, caused by users of the Site, or that are related to the use of the Service by third parties, or caused by any third parties’ use of the equipment or programming associated with or utilized in the Site or the Service.
- OBITUARYSHARE.COM INC. CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE SITE AND/OR THE SERVICE.
- We do not monitor content published through the Service and We are not responsible for content published through the Service. Notwithstanding the foregoing, OBITUARYSHARE.COM INC. reserves the right to delete, move, or edit messages or materials, including, but not limited to, advertisements, public postings, and messages, that we, in our sole discretion, deem necessary to be removed.
13. Limitation of Liability
- NO CONSEQUENTIAL DAMAGES. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL OBITUARYSHARE.COM INC. , ITS AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO THE YOU, YOUR USERS OR ANY OTHER THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY SUCH PARTY IN CONNECTION WITH THESE TERMS OR THE SERVICE, REGARDLESS OF WHETHER OBITUARYSHARE.COM INC. HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
- LIMITS ON MONETARY DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, OBITUARYSHARE.COM INC. ’S (INCLUDING ANY OF ITS AFFILIATES) AGGREGATE LIABILITY FOR DAMAGES (MONETARY OR OTHERWISE) UNDER THESE TERMS SHALL BE LIMITED TO THE PAYMENTS MADE BY YOU FOR THE SERVICE DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 13.2. IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF OBITUARYSHARE.COM INC. WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS.
- Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to You. IN THESE JURISDICTIONS, OBITUARYSHARE.COM INC. ’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
You agree to defend, indemnify, and hold harmless OBITUARYSHARE.COM INC. from and against any claims, actions or demands, including, without limitation, reasonable legal and professional services fees, arising or resulting from Your or Your Users’ breach of these Terms, or Your and Your Users’ access to, use, misuse or illegal use of the Service. OBITUARYSHARE.COM INC. will provide You notice of any such claim, suit, or proceeding. OBITUARYSHARE.COM INC. reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section, in which case You agree to cooperate with any reasonable requests to assist OBITUARYSHARE.COM INC. ’s defense of such matter.
Neither party may assign these Terms or any of its rights under these Terms, directly, by operation of law or otherwise, without the prior written consent of the other party, except that OBITUARYSHARE.COM INC. may assign these Terms, without Your consent to a parent, affiliate, or successor by way of a merger or reorganization. Subject to the foregoing restrictions on assignment, these Terms will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. Any assignment in violation of this Section will be void. These Terms shall be binding upon, and inure to the benefit of, the successors and permitted assigns of the parties hereto.
16. Entire Agreement; Amended Terms
This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, all previous understandings whether oral or written having been merged herein. No representations or warranties have been made other than those expressly set forth herein. Without limiting the foregoing, the parties have not relied on any oral statements that are not included in the Terms. Except as otherwise provided in these Terms, the Terms may not be changed, modified, renewed, extended, or discharged or any covenant or provision hereof waived except by an agreement in writing signed by both parties. These Terms supersede prior versions of these Terms.
We may amend these Terms from time to time, in which case the new Terms will supersede prior versions. We will notify You of such changes and direct You to the latest version. Upon notice of modification of these Terms, except such modifications required by law, You may notify us within two weeks of Our sending You notice of the amended Terms that You are exercising Your right to terminate Your use of the Service. Upon termination of your use under this Section, no prepaid fees will be prorated and returned to You. If you continue using the Service after we have provided notice of any changes to these Terms, you will be deemed to have accepted the revised Terms.
If any provision of these Terms, or the application thereof under certain circumstances, is held to be invalid or unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms, or the application of such provision under other circumstances, shall remain in full force and effect.
18. Export Control
Your use of Service, including our software, is subject to export and re-export control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the United States Department of Commerce and sanctions programs maintained by the Treasury Department’s Office of Foreign Assets Control. You shall not — directly or indirectly — sell, export, re-export, transfer, divert, or otherwise dispose of any Service or software to any end-user without obtaining the required authorizations from the appropriate government authorities. You also warrant that you are not prohibited from receiving US origin products, including services or software.
All Sections, (Acceptance of Terms), (Billing, Plan Modifications and Payments), (Intellectual Property Rights), (Cancellation and Termination), (Disclaimer of Warranties and Liability), (Limitation of Liability), (Indemnification), (Assignment), (Entire Agreement; Amended Terms), (Severability), (Export Compliance and Use Restrictions), (Relationship; Independent Contractor), (Governing Law), (Arbitration of Disputes), and (No Waiver) will survive any termination of these Terms.
20. Governing Law
The validity, interpretation and performance of these Terms shall be governed by the laws of the State of Kansas without giving effect to the conflicts of laws provisions or principals thereof.
21. Arbitration of Disputes
If we cannot amicably resolve any legal dispute or damage claim that should arise from your interactions with the Site, the Service, and/or OBITUARYSHARE.COM INC. , you agree to resolve any such dispute or damage claim by arbitration. The arbitration proceeding shall be conducted in Kansas, in accordance with the rules of the American Arbitration Association then in effect with one (1) arbitrator to be selected by mutual agreement of both you and OBITUARYSHARE.COM INC. . If we cannot agree on an arbitrator, then the American Arbitration Association shall select an arbitrator from the National Panel of Arbitrators. The laws of the State of Kansas shall apply to the arbitration proceedings. You agree that the arbitrator cannot award punitive damages to either of us and agree to be bound by the arbitrator’s findings. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction, which shall include, but not be limited to, the courts within Sedgwick, County, Kansas.
22. Federal Government End Use Provisions
If you are a U.S. federal government end user, this Service is a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, this Service is licensed to you with only those rights as provided under the terms and conditions of these Terms.
23. Digital Millennium Copyright Act
- The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under US copyright law. If you believe in good faith that content or material on this website infringes a copyright owned by you, you (or your agent) may send OBITUARYSHARE.COM INC. DMCA agent a notice requesting that the material be removed, or access to it blocked. This request should be sent to support or Contact Us on the website.
- The notice must include the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed; (c) identification of the material that is claimed to be infringing or the subject of infringing activity; (d) the name, address, telephone number, and email address of the complaining party; (e) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send us a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. Notices and counter-notices with respect to the website should be sent to the address above.
24. No Waiver
OBITUARYSHARE.COM INC.’s failure to enforce at any time any provision of these Terms does not constitute a waiver of that provision or of any other provision of these Terms.