Terms of Service
Welcome to Memoria. Please read these Terms of Service (the "Terms") carefully because they govern your use of our website located at memoria.co ("Site") and the services we make available to you via our Site. To make these Terms easier to read, the Site and our services are collectively called the "Services."
Agreement to Terms. By using our Services, you agree to be bound by these Terms. If you don't agree to be bound by these Terms, do not use the Services. IMPORTANT NOTICE REGARDING ARBITRATION FOR U.S. USERS: WHEN YOU AGREE TO THESE TERMS AS A CONSUMER YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND MEMORIA THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION "DISPUTE RESOLUTION FOR U.S. CONSUMERS" BELOW FOR DETAILS REGARDING ARBITRATION (INCLUDING THE PROCEDURE TO OPT OUT OF ARBITRATION). WHEN YOU AGREE TO THESE TERMS AS A LEGAL ENTITY AND/OR NOT AS A CONSUMER USER, THE DISPUTE RESOLUTION TERMS IN SECTION 20 APPLY TO YOU.
Changes to Terms or Services. We may update the Terms at any time, at our sole discretion. If we do so, we'll let you know either by posting the updated Terms on the Site or through other communications. It's important that you review the Terms whenever we update them or you use the Services. If you continue to use the Services after we have posted updated Terms, you are agreeing to be bound by the updated Terms. If you don't agree to be bound by the updated Terms, then, except as otherwise provided in Section "Effect of Changes on Arbitration," you may not use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
Who May Use the Services?
Eligibility. You may use the Services as an individual only if you are 13 years or older and are not barred from using the Services under applicable law, or are otherwise capable of entering into a legal agreement with Memoria. "You" and "your" refer to either a consumer user or a non-consumer user, as applicable, in these Terms.
Registration and Your Information. If you want to use certain features of the Services you'll have to create an account ("Account"). If you choose the SNS Account option we'll create your Account by extracting from your SNS Account certain personal information such as your name and email address and other personal information that your privacy settings on the SNS Account permit us to access.
Accuracy of Account Information. It's important that you provide us with accurate, complete and up-to-date information for your Account and you agree to update such information to keep it accurate, complete and up-to-date. If you don't, we might have to suspend or terminate your Account. You agree that you won't disclose your Account password to anyone and you'll notify us immediately of any unauthorized use of your Account. You're responsible for all activities that occur under your Account, whether or not you know about them.
Content On Memoria.
Definitions. For purposes of these Terms: (i) "Content" means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services; and (ii) "User Content" means any Content that Account holders (including you) provide to be made available through the Services, including information related to the Products offered for sale via the Marketplace. Content includes without limitation User Content.
Ownership By Memoria. You acknowledge that the Services and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content.
Rights in User Content Granted by You. By making any User Content available through the Services you hereby grant to Memoria a non-exclusive, transferable, worldwide, royalty-free license, with the right to sublicense, to use, copy, modify (for formatting purposes only), distribute copies of, publicly display, and publicly perform your User Content in connection with operating and providing the Services to you and to other Account holders.
Responsibility for User Content. You are solely responsible for all your User Content. You represent and warrant that you own all your User Content or you have all rights that are necessary to grant us the license rights in your User Content under these Terms. You also represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by Memoria on or through the Services will infringe, misappropriate or violate a third party's intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
Removal of User Content. You can remove your User Content by using the functionality of the Services. However, in certain instances, some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the Services. If you post User Content to the Services on a webpage created by someone else (such as a post you make on a memorial page created by another user), that User Content may be deleted if that other user chooses to delete the webpage they have created. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
Third Party Services. Certain features of our Services may be provided directly to you by third party service providers in which case you may be required to enter into a separate agreement with the applicable third party service provider in order to use the applicable feature. You will, of course, be given an opportunity to review and agree to any additional agreement terms with third parties prior to using those features of the Services.
Payments. We, third parties, or Business Account holders selling Products via the Marketplace may offer for purchase certain goods or services via the Services. In connection with any purchase you make, or automatic payments charged to your Business Account (each, a "Transaction"), you expressly authorize us, (or our third-party service provider) to charge you for such Transaction. We may ask you to supply information relevant to your Transaction, including your credit card number, the expiration date of your credit card and your email and postal addresses for billing and notification (such information, "Payment Information"). You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. When you initiate a Transaction, you authorize us to provide your Payment Information to third parties so that your Transaction can be processed (plus any applicable taxes, fees and other costs imposed by the payment processor or any other third parties). All fees and applicable taxes, if any, are payable in United States dollars.
Delivery of Goods. If you initiate a Transaction involving goods for delivery (such as flowers shipped to a person or event) or purchasing Products via the Marketplace, shipping information and other terms necessary to complete the Transaction will be communicated to you before the Transaction is finalized. When you initiate any Transaction, you agree that you are solely responsible for any and all fees associated with purchases you make via the Services. If you purchase Products via the Marketplace, all Transactions initiated via the Marketplace are between you and the Business Account holder selling the Product, and Memoria is not a party to those Transactions.
Payment Processor. If you purchase a Product on the Marketplace, the total fees for the Product will be paid by you to a third-party payment processor. The third-party payment processor, and not us, is responsible for properly transacting such payments through its platform, and you agree to release and hold us harmless from any errors, negligence or misconduct of the third-party payment processor. You authorize the third-party payment processor to directly remit to the Marketplace Fees and any other applicable fees owed to us and then pay the remainder to the seller of the Product, minus any fees (such as currency conversion fees) the payment processor may impose.
Contributions to Causes or Memorial Pages. We may offer the ability for you to contribute to a particular cause or charity in memory of a particular person or directly to the creator of a particular memorial page. Our Services may also include features that allow you to donate directly to a third party, who may offer to use your donation to provide specific memorial or other services. If you donate to such a third-party service, said services will be performed subject to and in accordance with that third-party's terms and conditions, and accepts no liability for that third party's performance of its obligations to you. Lastly, in situations where the creator of a memorial page or fundraiser or recipient of the funds has not supplied their payment information, we may offer the ability to "pledge" contributions for future use. We do not guarantee that any contributions made via our Services are tax-deductible. Contributions to individuals who create memorial pages are made entirely at your own risk; it is your responsibility to ensure that the memorial page creator is who you intend to contribute to, and that you have reviewed the terms and conditions of any third party that you select via the Services as noted above. We are not responsible for ensuring the memorial page creator's identity or verifying how they use your contributions.
General Prohibitions. You agree not to do any of the following:
Post, upload, publish, submit or transmit any User Content that: (i) infringes, misappropriates or violates a third party's patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;
Use, display, mirror or frame the Services or any individual element within the Services, Memoria's name, any Memoria trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Memoria's express written consent;
Access, tamper with, or use non-public areas of the Services, Memorias computer systems, or the technical delivery systems of Memoria’s providers;
Attempt to probe, scan or test the vulnerability of any Memoria system or network or breach any security or authentication measures;
Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Memoria or any of Memoria's providers or any other third party (including another user) to protect the Services;
Attempt to access or search the Services or download Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Memoria or other generally available third-party web browsers;
Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
Use any meta tags or other hidden text or metadata utilizing an Memoria trademark, logo URL or product name without Memoria’s express written consent;
Use the Services or Content, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services to send altered, deceptive or false source-identifying information;
Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services;
Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
Impersonate or misrepresent your affiliation with any person or entity;
Violate any applicable law or regulation; or
Encourage or enable any other individual to do any of the foregoing.
Although we're not obligated to monitor access to or use of the Services or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content, including User Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any User Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
Links to Third Party Websites or Resources. The Services may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from your use of any third-party websites or resources.
Termination. We may terminate your access to and use of the Services, at our sole discretion, at any time and without notice to you. You may cancel your Account at any time by sending an email to us at email@example.com. Upon any termination, discontinuation or cancellation of the Services or your Account, all provisions of these Terms which by their nature should survive will survive, including, without limitation, ownership provisions, warranty disclaimers, limitations of liability, and dispute resolution provisions.
The Services. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES, INCLUDING THE MARKETPLACE, ARE PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any Content, including any Business Account listings.
The Products. If you purchase Products via the Marketplace, you understand that Products are listed, stored, and sold by Business Account holders, not Memoria. EXCEPT FOR ANY WARRANTIES FOR PRODUCTS OFFERED BY Memoria ITSELF ON THE MARKETPLACE, Memoria makes no warranties WITH RESPECT TO THE Products listed AND SOLD on the Marketplace. Any dispute or claim related to a Product must be brought directly to the Business Account holder that sells the Product. You hereby irrevocably and perpetually release Memoria from any and all claims related to the Products.
Indemnity. You will indemnify, defend and hold Memoria and its officers, directors, employee and agents harmless from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of the Services including the Marketplace and any Products purchased or sold via the Marketplace, (ii) your User Content, or (iii) your violation of these Terms.
Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER MEMORIA NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT MEMORIA OR ANY OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL MEMORIA'S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE AMOUNTS YOU HAVE PAID OR ARE PAYABLE BY YOU TO MEMORIA FOR USE OF THE SERVICES OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO MEMORIA, AS APPLICABLE.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN MEMORIA AND YOU.
Governing Law and Forum Choice. These Terms and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of Delaware, without regard to its conflict of laws provisions.
Dispute Resolution for U.S. Users. Except as otherwise expressly set forth in this Section, the exclusive jurisdiction for all Disputes (defined below) that you and Memoria are not required to arbitrate will be the state and federal courts located in Delaware, and you and Memoria each waive any objection to jurisdiction and venue in such courts. The following terms of this Section only apply if you are an individual who is using the Services for your own personal use as a consumer and are not representing a legal entity.
Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, "Disputes") will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. However, if for any reason a Dispute proceeds in court rather than in arbitration, you and we each waive any right to a jury trial.
Starting Arbitration. If you want to begin arbitrating a Dispute, you must notify us by sending us an email at firstname.lastname@example.org or via another communication method we make available to you requesting arbitration and describing the Dispute. If we want to begin arbitrating a Dispute, we'll send such a letter to you at the email address or street address that you provided.
Dispute Resolution for Non-Users. Except as otherwise expressly set forth in Section "Dispute Resolution for Consumers," the exclusive jurisdiction for all Disputes that you and Memoria will be the state and federal courts located in Delaware, and you and Memoria each waive any objection to jurisdiction and venue in such courts.
Entire Agreement. These Terms constitute the entire and exclusive understanding and agreement between Memoria and you regarding the Services and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Memoria and you regarding the Services and Content. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. You may not assign or transfer these Terms, by operation of law or otherwise, without Memoria’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Memoria may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Notices. Any notices or other communications provided by Memoria under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
Waiver of Right. Memoria's failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Memoria. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
Contact Information. If you have any questions about these Terms or the Services, please contact Memoria at email@example.com.