1 GENERAL AGREEMENT. This website is offered by Dignity Memorial Network, Inc. and its parents and affiliates (collectively the “Company”). Our website and all use of it are governed by the following TOS. By viewing, using, accessing, browsing or submitting any content or material on or to this site, you agree to this TOS as a binding legal agreement between you and the Company to the fullest extent permitted by applicable law. You further agree that the Company shall have the right to alter or amend the TOS or any other guidelines or policies at any time, with or without advance notice to you. You agree that each visit you make to this website and your continued use of our website shall confirm that you have read, accepted and agreed to be bound by such modifications of the TOS.
2 DESCRIPTION OF SERVICE. Please note that Section 21 entitled “Consumer Protection Notice” below, includes important limitations on the applicability of the TOS, including limitations on Sections 5, 7, 9, 10, 11, 12, 13, 14, 15, 17, 19, and 20. DESCRIPTION OF SERVICE. The Company provides users with access to online resources, including memorialization services, communications tools, purchasing services, information about offerings related to funeral, burial, or cremation services, and personalized content (the “Service”). Any new Service features shall be subject to the TOS. You understand and agree that the Service is provided “AS-IS” and that the Company assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any user communications or personalization settings. To use the Service, you must obtain access to the World Wide Web, pay any service fees for such access, and provide all equipment necessary to make such connection.
4 SECURITY. You will receive a password and account name when you register. Please keep your password confidential at all times, because you are responsible for all activities that occur under your password or account. Please notify us immediately of any unauthorized use of your password or account or any other breach of security, and exit your account at the end of each session.
5 USE. The Service is intended for personal use only as provided in your Service Agreement. You agree not to use the Service for commercial purposes. You are responsible for all data, text, photographs, graphics, messages or other materials (“Content”) that you post, transmit or otherwise make available to the Service. The Company does not control the Content delivered to the Service and does not guarantee or make any representations regarding the accuracy, integrity or quality of such Content. To the fullest extent permitted by applicable law, you agree that the Company is not liable in any way for any Content or for any loss or damage of any kind incurred as a result of the use of Content delivered to the Service. You further agree that you will not use the Service to:
You also agree that you will not use any robot, spider, scraper, data mining tools, data gathering and extraction tools, or other automatic device, or manual process to access, copy, or scrape our website or its Content for any purpose without express written permission of the Company. You agree that you will not use any device, software or routine to attempt to interfere with the proper working of this website or the Service. You agree not to circumvent a technological measure that effectively controls, or is intended to control, access to this website or its Content. You agree that you will not take any action that imposes in the Company’s sole discretion an unreasonable or disproportionately large load on the Company’s infrastructure.
The Company reserves the right, in its sole discretion and without limiting its other remedies, to limit your access and use of the Service, including the number of your connections and the content and data you may access. The Company reserves the right to restrict, suspend, or terminate your account and/or access or use if the Company believes that you may be in breach of this TOS or law or are misusing the Service.
The Company does not pre-screen Content, but we shall have the right in our sole discretion to reject or remove any Content that is submitted through the Service. You agree to evaluate and bear all risks associated with the use of any Content. You further agree to comply with all applicable laws of the country, state or province, and locality in which you reside regarding online conduct, acceptable Content and the transmission of technical data.
You acknowledge and agree that the Company may preserve Content. Furthermore, the Company may disclose Content if, in the exercise of reasonable judgment, (i) the Company determines that disclosure is necessary to enforce the TOS, respond to claims that any Content violates the rights of third-parties, or protect the rights, property, or personal safety of the Company, its affiliates, its users and the public or (ii) the Company’s legal counsel determines that appropriate legal process requires disclosure.
You grant the Company and related entities a royalty-free, perpetual, irrevocable, non-exclusive right and license to use, copy, modify, display, archive, store, publish, transmit, perform, distribute, reproduce and create derivative works from all Content you provide in any form, media, software or technology of any kind now existing or developed in the future. Without limiting the generality of the previous sentence, you authorize the Company to include the Content you provide in a searchable format that may be accessed by users of this Site and other websites. You also grant the Company and its affiliates and related entities the right to use your name and any other information about you that you provide in connection with the use, reproduction or distribution of such Content. You also grant the Company the right to use the Content and any facts, ideas, concepts, know-how or techniques (“Information”) contained in any Content or communication you send to us for any purpose whatsoever, including but not limited to, developing, manufacturing, promoting and/or marketing products and services. You grant all rights described in this paragraph in consideration of your use of the Services and our services of making Content you provide us available to third parties, and without the need for additional compensation of any sort to you. The Company does not claim ownership of Content you submit.
7 YOUR ACCOUNT, PASSWORD AND SECURITY. Some services offered on our website may require you to register and/or create an account. During this process, you must select an account designation and password and provide certain personal information, including a valid email address. In consideration of the use of the Company’s services, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the registration form, and (b) maintain and promptly update the personal information you provide to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or the Company has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, the Company has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).
You are responsible for maintaining the confidentiality and security of your account and password, and you are fully responsible for all activities that occur under your password or account, and for any other actions taken in connection with the account or password. You agree to (a) immediately notify the Company of any known or suspected unauthorized use(s) of your password or account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your password or credit card information; and (b) ensure that you exit from your account at the end of each session. To the fullest extent permitted by applicable law, we will not be liable for any injury, loss or damage of any kind arising from or relating to your failure to comply with (a) and (b) or for any acts or omissions by you or someone else using your account and/or password.
8 STORAGE. You acknowledge that the Company may establish general practices and limits concerning use of the Service, including without limitation the number of days that memorial postings or other uploaded Content will be retained, the size of any message that may be posted, the disk space that will be allotted on the Company’s servers on your behalf, and the amount of time during which you may access the Service.
9 MODIFICATIONS TO SERVICE. The Company reserves the right at any time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. In addition, The Company’s ability to provide the Service is contingent upon many factors that may be out of the Company’s control, including, but not limited to, the continued availability of the internet as it presently exists or other technologies that may be available in the future that would allow for the continuation of such Service in essentially the same manner as they are provided today. To the fullest extent permitted by applicable law, you agree that the Company shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service for any reason.
10 TERMINATION. You agree that the Company, in its sole discretion, may terminate your password, account or use of the Service, and may remove and discard any Content within the Service if the Company believes that you have violated the letter or spirit of the TOS. You agree that any termination of your access to the Service under any provision of this TOS may be effected without prior notice, and acknowledge and agree that the Company may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. You and your agents and assigns are not eligible or authorized to access or use the Service and you agree not to access or use the Service after your access and use have been terminated by the Company, without the Company’s express prior written consent. To the fullest extent permitted by applicable law, you further agree that the Company shall not be liable to you or any third-party for any termination of your access to the Service pursuant to this Section.
11 ADVERTISERS. Your communication and interaction with advertisers found on or through the Service are solely between you and such advertiser. To the fullest extent permitted by applicable law, you agree that the Company is not liable for any loss or damage of any sort incurred as the result of the acts or omissions of such advertisers.
13 DISCLAIMER. To the fullest extent permitted by applicable law, you expressly understand and agree that your use of the Service is provided on an “AS IS” and “AS AVAILABLE” basis. The Company expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of fitness for a particular purpose, merchantability and non-infringement. The Company makes no warrant that (i) the Service will meet your requirements, (ii) the Service will be uninterrupted, timely, secure or error free, (iii) the quality of any products, services, information or other material purchased or obtained by you through the Service will meet your expectations, or (iv) any errors in the Service will be corrected.
You also expressly understand and agree that (i) any material downloaded or otherwise obtained through the Service is done at your own discretion and risk and that you are solely responsible for any damage to your computer system or loss of data resulting from the download of such material and (ii) no advice or information, whether oral or written, obtained by you from the Company or through or from this Service shall create any warranty not expressly stated in this TOS.
14 LIMITATION OF LIABILITY. To the fullest extent permitted by applicable law, you understand and agree that the Company and its affiliates are not liable for any direct, indirect, incidental, special, consequential or exemplary damages (even if the Company has been advised of the possibility of such damages) resulting from: (i) your use or inability to use the Service; (ii) unauthorized access to or alteration of your transmissions or data; (iii) statements or conduct of any third party on the Service; or (iv) any other matter relating to the Service.
15 EXCLUSIONS AND LIMITATIONS. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, as set forth in Section 21 (“Consumer Protection Notice”) below, some of the above limitations of Sections 13 and 14 may not apply to you.
16 TRADEMARK INFORMATION. Dignity Memorial, the Dignity Memorial logo, Dignity Planning, Aftercare Planner, MeM, the MeM logo, Making Everlasting Memories, Everlasting Memorial, 24-Hour Compassion Helpline and other Company logos and product and service names are trademarks of the Company and its affiliates, or the Company has a license to use such trademark. You agree not to display or use in any manner any of these without our prior written permission.
17 INDEMNITY. To the fullest extent permitted by applicable law, you agree to indemnify, defend, and hold the Company, and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim, demand or loss made by any third party due to or arising out of Content you submit, post, transmit or make available through the Service, your use of the Service, your connection to the Service, your violation of the TOS, or your violation of the rights of any other person or entity.
18 Dispute Resolution; Informal Resolution and Formal Resolution by Arbitration/Class Action Waiver
In order to expedite and control the cost of disputes, you and the Company agree that any legal or equitable claim relating to use of this website or the use or purchase of any Service from this website (referred to as a “Claim”) will be resolved as follows:
If you and the Company cannot resolve a Claim informally, any Claim asserted by either party will be resolved only by binding Arbitration. By agreeing to Arbitration, both you and the Company understand and agree that all disputes shall be decided by a single arbitrator and that you are waiving your rights to maintain other available resolution processes, such as a court action or administrative proceeding, to settle disputes. Instead of suing in court, both you and the Company each agree to settle disputes (except certain small claims) only by Arbitration. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JURY TRIAL. The rules in Arbitration are different. There is no judge or jury, and review is limited, but an arbitrator can award the same damages and relief, and must honor the same limitations stated in these TOS as a court would.
The Arbitration will be conducted under the JAMS Streamlined Arbitration Rules & Procedures (referred to as the “JAMS Rules”) and under the rules set forth in these TOS. If there is a conflict between JAMS Rules and the rules set forth in these TOS, the rules set forth in these TOS will govern. You may, in Arbitration, seek any and all remedies otherwise available to you pursuant to the law of the governing state. If you decide to initiate Arbitration, the Company agrees to pay the Arbitration initiation fee and any additional required deposit required by JAMS to initiate your Arbitration. You and the Company agree to pay the costs of the Arbitration proceeding provided however that if you are a consumer you shall not be required to pay more than $250.00 of the fees or such amount as the JAMS Rules may later prescribe. All other fees, such as attorneys’ fees and expenses of travel to the Arbitration, will be paid in accordance with JAMS Rules. The Arbitration will be held at a location in your home town area if possible, unless you and the Company both agree to another location or telephonic Arbitration. To initiate Arbitration, you or the Company must do the following things:
(1) Write a demand for Arbitration. The demand must include a description of the Claim and the amount of damages sought to be recovered. You can find a copy of a Demand for Arbitration at www.jamsadr.com.
(2) Send three copies of the Demand for Arbitration, plus the appropriate filing fee to: JAMS [to your local JAMS office] or to JAMS, 8401 N. Central Expressway, Suite 610, Dallas, TX 75225.
(3) Send one copy of the Demand for Arbitration to the other party.
Special Rules in the Arbitration Proceeding. (i) The arbitrator has no authority to make errors of law and any award may be challenged if the arbitrator does so. Otherwise, the arbitrator’s decision is final and binding on all parties and may be enforced in any Federal or State court that has jurisdiction. (ii) Neither you nor the Company shall be entitled to join or consolidate claims in Arbitration by or against other individuals or entities, or arbitrate any claim as a representative member of a class or in a private attorney general capacity. THIS MEANS THAT YOU WAIVE YOUR RIGHT TO INITIATE OR PARTICIPATE IN ANY CLASS OR CONSOLIDATED ACTION WHATSOEVER. Accordingly, you and the Company agree that the JAMS Class Action Procedures do not apply to our Arbitration. A court may sever any portion of this dispute resolution provision if it finds such unenforceable. Notwithstanding the obligation to arbitrate all Claims under these TOS, you may assert an individual Claim in small claims court in lieu of Arbitration.
19 GOVERNING LAW AND JURISDICTION.
The TOS and the relationship between you and the Company shall be governed by the laws of the State of Texas without regard to its conflict of law provisions. Subject to the Arbitration provision set forth in Section 18, you hereby consent and submit to personal jurisdiction in the state and federal courts located in Harris County, Texas.
20 LIMITED TIME TO FILE CLAIMS.
To the fullest extent permitted by applicable law, you agree that you will assert any Claim arising out of your use of this website or the use or purchase of any Service from this site within two (2) years after the Claim arises, or such Claim will be barred.
21 CONSUMER PROTECTION NOTICE. Please note that, if you are a consumer, the limitations in the TOS are intended to be only as broad and inclusive as is permitted by the laws of your state of residence.
If you are a New Jersey consumer, the terms of Sections 5, 7, 9, 10, 11, 12, 13, 14, 15, 17, 19, and 20 do not limit or waive your rights under New Jersey law and the limitations in these TOS are intended to be only as broad and inclusive as is permitted by the laws of the State of New Jersey.
Subject to the foregoing, we reserve all rights, defenses and permissible limitations under the laws of the State of New Jersey and under the laws of your state of residence. Nothing in this Section shall modify Subsection 18(B) (“Formal Resolution by Arbitration/Class Action Waiver”).
22 GENERAL INFORMATION. The failure of the Company to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid, the parties agree that the court should try to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect.