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Terms and Conditions

Loving Memorial

  • refers to the memorial website for your Loved One that is created by the User through the use of Provider Software

Loved One

  • the person or pet that User is creating a Loving Memorial for

User

  • the person using the Software.
  • User must be at least 18 years of age to create a Loving Memorial
  • if  the User is only posting Content as a visitor to a Loving Memorial, User must be at least 13 years of age.

Website Software

  • Refers to the Loving Memorials online proprietary software of Provider used for the entry and display of a Loving Memorial. Website Website Software includes the Provider Dashboard for the entry of the Loving Memorial and the system and method used to to display the Loving Memorial website

Provider

  • the Loving Memorial service is provided by and you’re contracting with:

Loving Memorials
care of Florist 1 LLP
712 S Ocean Shore Blvd
Flagler Beach, FL 32136
USA

Content

  • refers to any content that is entered by the User or Loving Memorials visitors into Website Software for the creation and display of the Loving Memorial such as deceased information, memories, life story, photos, videos, and condolences, Guestbook entries

Agreement

  • ‘This Agreement’ refers to this Terms and Conditions Agreement between Provider and User
  • By clicking the “Accept” button for this Agreement at the time of sign up and/or using Website Software, User confirms acceptance of, and agrees to be bound by this Agreement
  • Therefore, the parties agree as follows:

Ownership

  • Provider
    • Provider retains right, title, and interest in and to the Website Software including, but not limited to, ownership of all copyrights and other intellectual property rights therein.
    • User may provide Feedback which includes comments, suggestions, and ideas regarding the Website Software, whether presented orally, in writing, or otherwise. Regarding that Feedback, User grants Provider a fully-paid, royalty-free, worldwide, non-exclusive, sublicensable right and license to manufacture, sell, lease, use, copy, distribute, display, perform, transmit, and make derivative works of Feedback for use in or with any products or services. Provider shall not publicly identify User in connection with any feedback, unless otherwise agreed in writing.
  • Rights Not Explicitly Licensed
    • All rights not explicitly licensed in this Agreement are reserved by the respective owner.

USER RESPONSIBILITIES

User agrees to:

  • to grant Provider a royalty free, non-exclusive, transferable, sub-licensable, worldwide license to host, use, distribute, modify license, copy, display, translate Content
  • ensure that Content is true and accurate and does not contain inaccurate, false information
  • ensure that the Content is not obscene, discriminatory, racist, hateful, or exclusionary and to not create a Loving Memorial for an individual whose life embodied and espoused those behaviors. If there is a disagreement about this, the Provider’s determination shall prevail
  • ensure the Content in a Loving Memorial generally presents the deceased in a loving, respectful and positive way and does not present the deceased in a negative way. If there is a disagreement about this, the Provider’s determination shall prevail
  • provide true, current and complete information about User in the required fields of our registration forms and promptly update such information as necessary
  • ensure that User has all necessary rights and permissions to Content from third parties in connection with its use which includes the copyright, trademark or intellectual property to Content
  • to allow more than one Loving Memorial for your Loved One to be created by anyone other than User
  • to not post Content about a living person that would make them personally identifiable or violate their right to privacy

User agrees not to:

  • violate any applicable law, rule or regulation
  • engage in fraudulent activity of any kind
  • directly or indirectly use Website Software in any way that would breach this Agreement or would be abusive, harassing, racist, obscene, exclusionary to race or culture, tortious, or otherwise could result in civil or criminal liability. Provider has the right, but not the obligation, to remove any such material.
  • provide Content prohibited by intellectual property (e.g., patent, copyright, trademark, trade secret, or privacy and publicity))
  • use software in unethical or illegal methods
  • provide false or misleading information or impersonate any person or entity
  • misrepresent any product or business
  • interfere with or disrupt the Website Software or servers, networks or communications systems connected to Website Software and its functionality of Provider or any third party
  • disassemble, reverse engineer, modify, adapt, scrape or create derivative works of, rent (including on a time sharing, applications service provider or cloud service basis), lease, lend, sell, or redistribute the Website Software
  • use or introduce any spyware, adware, viruses, trojan horses, worms or similar invasive, destructive or self-replicating code in connection with the Website Software
  • use any automated system, such as “robots” or “spiders,” to access, scrape or monitor Website Software
  • not use the Loving Memorial to buy or sell products or solicit direct donations even on behalf of the deceased
  • conduct raffles, contests, lotteries or sweepstakes, except in compliance with all relevant federal and state legal requirements and with our prior written consent
  • refuse to reasonably cooperate in any investigation related to the Website Software.
  • Provider shall be the sole arbiter as to what activities violate the foregoing

Privacy and Security

  • User agrees to maintain the security of login and access credentials which Provider has provided to access Website Software
  • User agrees that Provider may monitor the Loving Memorial and use of Website Software and gather technical and related information, including but not limited to information about the User’s use of Website Software to verify compliance with terms of this Agreement or to facilitate improvements to the Website Software
  • User acknowledges and agrees that Provider will collect Content and other User information specified in connection with the use of Website Software and display of the Loving Memorial to perform this Agreement and comply with tax and recordkeeping requirements

Payments and Plans

  • Refunds on Payments
    • Any payment for any plan may be refunded in full at the request of the User with 30 days of purchase
    • For a payment that is requested during this 30 day period, the entire charge is refunded in full and the Loving Memorial is terminated and will no longer be accessible
  • Current and Future Features
    • User will receive all features they paid at signup for the duration of their plan regardless if Provider makes changes to plans and features in the future
    • Provider may add new features, including paid features, that were not in User’s plan at signup and User may elect to pay for those new features
  • Permanent Plans
    • A Permanent Plan means the Loving Memorial will be displayed permanently without the need for any future payments from User
    • The duration of for as long as the Loving Memorials service is running
  • Plans for a Duration of Time
    • User may purchase a Loving Memorial plan which has a set duration of time, for example 1 year or 10 years
    • Upon expiry of the duration of the Loving Memorial plan, User needs to purchase another plan to extend their use of Website Software and display of their Loving Memorial
    • The Loving Memorial may no longer be displayed unless the User has purchased another plan to extend the Loving Memorial
    • Upon expiry of the duration of the Loving Memorial plan, the User will have a minimum of 30 days to login and purchase a plan to keep the Loving Memorial active though that period may be longer
    • Provider may inform user that their plan is expiring but has no obligation to do so
    • Provider has no obligation to preserve Content and the Loving Memorial after 30 days beyond the expiration date of the plan
  • Exporting Content and Loving Memorial
    • User is entitled to one free export of Content associated with a Loving Memorial
    • User may request additional exports to the one free export and Provider may charge a fee for those additional exports of data
    • Exported Content will be provided in a .CSV (Comma Separated Value) file User has entered in Website Software

Termination

  • Either party may terminate this Agreement
    • User
      • User may terminate this agreement and discontinue usage at anytime without notice
    • Provider
      • Provider may terminate this Agreement and suspend or terminate access to all or any portion of the of the Website Software for any of the following:
        • material breach of this Agreement
        • illegal or fraudulent activity
        • a Loving Memorial that does not portray the deceased in a positive way or that is hateful, racist or exclusionary
        • non-payment of any monies owed to extend the Loving Memorial after a plan has expired (see Payment and Plans)
        • suspension, disruption or termination of services Provider relies on to provide Website Software
        • termination for the above reasons may result in immediate and permanent denial of access to the Website Software and display of the Loving Memorial
      • Termination or suspension may be immediate and/or without notice, though Provider shall use reasonable efforts to give prompt notice (including email) of the suspension or termination.
      • Provider may terminate this Agreement at any time for non-material breach of this Agreement, if providers terminates this Agreement for any reason not related to a material breach, Provider will give a 30 day notice where
    • Survival
      • The following provisions of this Agreement will survive any termination or expiration of this Agreement: Ownership, Privacy and Security, Termination, Confidentiality, Disclaimer of Warranties; Indemnity, Limitations of Liability, General
    • Effect of Termination
      • Upon the expiration or termination of this Agreement, User shall cease use of Website Software
      • When this Agreement is terminated, Provider will not be obligated to preserve, maintain, backup or make available Content and display of Loving Memorial beyond 30 days of termination
      • Provider will not be liable for compensation, indemnity, or damages of any sort as a result of such expiration or termination.

DISCLAIMER OF WARRANTIES; INDEMNITY

PROVIDER DOES NOT MAKE ANY WARRANTY IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY AND NON INFRINGEMENT. PROVIDER DOES NOT WARRANT THAT THE SOFTWARE WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE.

Indemnification.

  • User will defend, indemnify and hold harmless Provider, and its officers, directors, shareholders, employees, and agents, from any loss, damage, liability or cost (including reasonable attorneys’ fees) resulting from any third party claim (“Liabilities”) that results from:
    • (i) User’s breach of this Agreement;
    • (ii) any claim that any User website and/or use of Website Software infringe any third party’s copyright, patent, trade secret, trademark, or other intellectual property right;
    • (iii) erroneous transactions or other errors caused by the User Application; or
    • (iv) User’s use of the Website Software other than as specified by Provider. In the event of any Liabilities for which User is obligated to indemnify Provider hereunder, User shall have sole control of the defense and all related settlement negotiations and Provider shall reasonably cooperate with User with the defense and/or settlement thereof, at User’s expense; provided that Provider shall have the right to consent to any settlement, such consent not to be unreasonably withheld or delayed, and Provider may participate in such defense using its own counsel at its own expense.

LIMITATION OF LIABILITY.

EXCEPT FOR THE INDEMNIFICATION IN DISCLAIMER OF WARRANTIES; INDEMNITY AND FOR SECTIONS ‘USER RESPONSIBILITIES’ and ‘CONFIDENTIALITY, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR LOST REVENUE, PROFITS OR SAVINGS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WHETHER OR NOT THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. PROVIDER’S LIABILITY UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, IS LIMITED TO, AND WILL NOT EXCEED THE AMOUNT PAID BY THE USER.

General

Compliance With Law

  • Each party shall comply with all U.S. federal, state and local laws, rules and regulations applicable to its activities under this Agreement.

Law

  • This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, U.S.A., except for its conflicts of laws principles.
  • User consents and agrees that exclusive jurisdiction for any dispute, claim or controversy arising from this Agreement shall be in the federal and state courts located in Flagler County, Florida, U.S.A. The application of the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded.

References

  • Provider may refer to the Loving Memorial created by the User if the Loving Memorial privacy type is public
  • ‘Refer to’ includes listing it on the main pages of LovingMemorials.com, mentioning the Loving Memorial on social media, public relation campaigns (both online and offline), trade shows, linking to it, and displaying screenshots of on Provider website or any other website
  • If the privacy type of the Loving Memorial was changed after it was referenced by Provider, the Loving Memorial will no longer be accessible to others, but Provider is not obliged to remove references to the Loving Memorial that were already made

Assignment

  • User may not assign this Agreement, in whole or in part, without Provider’s prior consent. Any attempt by User to assign this Agreement without such consent shall be void. Subject to the foregoing, this Agreement binds and benefits both parties, and their successors and permitted assigns.

Notices

  • Notices from Provider to User will be given by general posting on Provider’s website or by email. Notices from User to Provider may be given through the Contact for Help form on the Provider website or mail to Loving Memorials, care of Florist 1 LLP, Attn: President, 712 S Ocean Shore Blvd, Flagler Beach, FL 32136, USA.

Force Majeure.

  • Any delay in or failure of performance by a party of its obligations under this Agreement will not be considered a breach of this Agreement and will be excused to the extent such delay or failure of performance is caused by any occurrence beyond the reasonable control of such party, which occurrences may include, but are not limited to, acts of God; failures of the Internet, telecommunications or payment processing facilities, pandemics, bank holidays, market closures, or other government interventions; war; riot or labor strikes; and similar events.

Severability

  • If any provision of this Agreement is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this Agreement will not be affected.

Entire Agreement

  • This Agreement is the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding any prior agreements and communications (both written and oral) regarding such subject matter.

Amendments

  • Provider may amend this Agreement at any time by (a) posting a revised version accessible via its websites, and/or (b) sending information regarding the amendment to User’s email address of record with User.
  • User shall be deemed to have accepted such amendments by continuing to use its Website Software after such amendments have been posted or sent to User. If User does not agree to any of such changes, User may terminate this Agreement and immediately cease utilizing the Website Software and agree that such termination will be User’s exclusive remedy in such event.

No Third Party Beneficiaries

  • This Agreement is intended for the sole and exclusive benefit of the parties and is not intended to benefit any third party. Only the parties to this Agreement may enforce it.

Remedies

  • The rights and remedies of Provider in this Agreement, at law or in equity, are cumulative and are not intended to be exclusive of one another.

Headings

  • The headings in this Agreement are for the convenience of reference only and have no legal effect.

Last updated Dec 17, 2021