Please read these InMemory Terms and Conditions (the “Terms”) carefully. These Terms govern your use of the In Memory website located at www.inmemory.ca (the “Website”) and operated by In Memory Services Ltd. (“In Memory“, “we“, “us” or “our“).
YOU ACKNOWLEDGE AND AGREE THAT BY REGISTERING FOR, ACCESSING OR USING THE WEBSITE, YOU ARE INDICATING THAT YOU HAVE READ AND UNDERSTAND THESE TERMS, AND THAT YOU ARE ENTERING INTO A LEGALLY BINDING AGREEMENT (THE “AGREEMENT”) WITH IN MEMORY SUBJECT TO THESE TERMS. IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT REGISTER FOR, ACCESS OR USE THE WEBSITE.
Wherever used in these Terms, “you”, “your” or similar terms means the person or legal entity accessing or using the Website. If you are accessing or using the Website on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms.
MODIFICATION OF WEBSITE OR TERMS
In Memory reserves the right, in its sole discretion, to modify the Website (including the addition, modification or removal of functionality, features or content) or these Terms, at any time and without prior notice. If In Memory modifies these Terms, In Memory will post the changes on the Website or otherwise provide you with notice. Your continued use of the Website following our posting of the changes or otherwise providing you with notice will mean that you accept and agree to such changes. You are responsible for regularly consulting the current version of the Terms prior to your use of the Website. If the modified Terms are not acceptable to you, you must stop using the Website.
THE WEBSITE IS A VENUE ONLY 2.1 In Memory offers the Website as a venue to assist individuals in need of funeral products or services (“Customers”) to find funeral businesses in Canada offering such products and services (“Vendors”). In Memory is not a Vendor, and is not offering or selling funeral products or services. A Customer’s communications, transactions and disputes with a Vendor are solely between such Customer and Vendor, and not us, and we will have no liability in connection therewith. You acknowledge that In Memory has no control over the quality, standards or legality of the products or services offered by Vendors, or the contents, truth or accuracy of any other information provided by Vendors, and their inclusion does not imply any warranties, representations, endorsements, approvals, verifications or investigations by us. ANY LEGAL REMEDY OR LIABILITY THAT YOU SEEK TO OBTAIN FOR ACTIONS OR OMISSIONS OF CUSTOMERS OR VENDORS WILL BE LIMITED TO A CLAIM AGAINST SUCH CUSTOMERS OR VENDORS, AND YOU AGREE NOT TO IMPOSE LIABILITY ON OR SEEK ANY LEGAL REMEDY FROM IN MEMORY WITH RESPECT TO SUCH ACTS OR OMISSIONS.
VENDOR ACCOUNTS 3.1 Vendors may access certain additional features and services through the Website by registering with In Memory to create a Vendor account. Vendor accounts are subject to additional terms and conditions, including subscription and other fees, as set out at the time of registration. 3.2 By registering for a Vendor account, you represent and warrant that you have all applicable licenses or permits, if any, required by the governmental or regulatory body in the province in which you operate to offer funeral products and services. In Memory reserves the right to request proof of the foregoing at any time. Only Vendors that are able to provide the foregoing representation and warranty may register for a Vendor account. 3.3 You are limited to one (1) Vendor account. You agree to provide accurate, up-to-date and complete information during the registration process and to update such information in the event it changes. In Memory reserves the right to suspend or terminate your account or your access to the Website if you create more than one (1) Vendor account, or if you provide any information that is false, inaccurate, misleading, not up-to-date, incomplete or otherwise in violation of these Terms. 3.4 Vendor accounts may be accessed only through the use of a unique login name and password. For security reasons, you must keep your login name and password confidential, and not disclose them to any person or permit any other person to use them. You acknowledge that the security and privacy provided by passwords is not absolute. Passwords should be non-obvious, hard-to-guess and confidential, and should be changed on a regular basis. It is recommended that you log-out at the end of each session if you wish to preserve the confidentiality of your account. 3.5 You are solely responsible for all use of your Vendor account – even if you have not authorized it. You must contact us immediately if you suspect any unauthorized use of the Website or your Vendor account. In Memory is under no obligation to verify the actual identity or authority of the user of any login name or password. 3.6 Vendors may post certain information and content about their business on the Website for access by other users (a “Profile”). You acknowledge and agree that: (i) you are solely responsible for information and content that you post to your Profile, and In Memory reserves the right, at any time and without prior notice, to remove or disable access to all or part of a Profile for any reason in the sole discretion of In Memory, including but not limited to, a Profile that is in violation of these Terms or that In Memory considers objectionable, fraudulent, misleading or otherwise harmful to the Website or its users; (ii) pricing information relating to funeral products and services (“Pricing Information”) that you post to your Profile may be subject to the review and approval of In Memory, and In Memory reserves the right to modify Pricing Information in its sole discretion, including without limitation, by adjusting such information for consistency with In Memory Pricing Information standards and formatting, and (iii) the placement or ranking of Profiles available through the Website, including through search results, may depend on a variety of factors determined by In Memory in its sole discretion, and that In Memory does not guarantee any specific placement or ranking. 3.7 Customers may post ratings and reviews of Vendors and their products or services on the Website. You agree that you will not: (i) attempt to restrict by contract or otherwise a Customer’s right to post a rating or review on the Website; (ii) post, either directly or indirectly through a third party, any rating or review on the Website relating to your business or another Vendor; (iii) offer a bribe or other form of inducement to a third party to post a rating or review relating to your business or another Vendor; or (iv) reproduce or otherwise use a rating or review from the Website in your own or any third party website or marketing or advertising material.
VENDOR PAYMENT TERMS 4.1 In Memory may charge you fees to register for a Vendor account or purchase certain features or services through the Website. Fees are charged at In Memory’s then-current rates and all payments made to In Memory are non-refundable. 4.2 In Memory may, from time to time, modify or amend fees, billing methods or terms, and post the changes on the Website or otherwise provide you with notice. Your continued use of the Website following our posting of the changes or otherwise providing you with notice will mean that you accept and agree to such changes. You are responsible for regularly consulting In Memory’s current fees, billing methods and terms, whether set out in these Terms or the Website, prior to your making any payments to In Memory or purchases through the Website. If any changes to the foregoing are not acceptable to you, you must stop using the Website. 4.3 If you are making any payments to In Memory, you must provide In Memory with a valid credit card or other form of payment instrument approved by In Memory. You agree that In Memory has permission to retain and/or share with financial institutions and payment processing firms your submitted payment information in order to process your purchase. With respect to the purchase of any features or services provided on an ongoing basis, you agree that In Memory may bill your credit card or other form of payment instrument approved by In Memory in advance and on a periodic basis in accordance with the terms presented to you at the time of such purchase or otherwise as set out in this Agreement. 4.4 All fees payable to In Memory are exclusive of all taxes, duties and levies of any kind, including any sales, use, excise, value-added and other applicable taxes, withholdings, and governmental charges (collectively, “Taxes”). You will be solely responsible for the payment of all applicable Taxes, other than taxes on In Memory’s income. If In Memory pays any such amounts on your behalf, you shall reimburse In Memory upon presentation of proof of payment.
USER CONDUCT 5.1 You are responsible for your own conduct when using the Website. You agree that you will only use the Website for lawful purposes and in a manner consistent with these Terms and any applicable rules, policies and guidelines established by In Memory in respect of the Website from time to time. Misuse or unauthorized use of the Website and its related systems or networks, or of any information or material available through the Website is strictly prohibited. In Memory reserves the right, at its sole discretion and without liability or prejudice to any other remedies that it may have, to immediately suspend, limit or terminate access by any user who is using, or who In Memory reasonably believes is using, the Website in violation of these Terms or any applicable laws, regulations or third party rights, or in a manner which is harmful to the Website, other users or any third parties. 5.2 Without limiting Section 5.1, you agree not to use the Website to: (i) engage in conduct that would constitute a criminal or quasi-criminal offence, that would give rise to civil liability, or that would otherwise violate any applicable local, provincial, state, federal or international law or accepted Internet protocol; (ii) communicate, transmit, upload or post information that is inaccurate, incomplete, misleading, false or libellous; (iii) communicate, transmit, upload or post information or material that infringes intellectual property rights, privacy rights, rights of publicity or any other rights of any person; (iv) communicate, transmit, upload or post material that is obscene, vulgar, pornographic, abusive, defamatory, threatening, racist, sexist or otherwise objectionable; (v) attempt to interfere with or gain unauthorized access to the Website or its related systems or networks; (vi) use or copy the Website, or any information or content accessible via the Website, including without limitation, any Profiles or Pricing Information, except for personal, non-commercial purposes or as otherwise expressly permitted by these Terms; (vii) recruit or otherwise solicit any user to join or otherwise participate in any third-party website that is competitive to In Memory; (viii) use or attempt to use the Website to gain unauthorized access to any person’s data or network; (ix) use any robot, spider, crawler, scraper or other automated means or processes to access, collect data or other content from or otherwise interact with the Website for any purpose; or (x) otherwise use the Website in a manner that could, in the opinion of In Memory, adversely affect the ability of other users to use the Website or the Internet, including post or transmit information or data containing worms, viruses, Trojan horses or other disruptive components.
INTELLECTUAL PROPERTY 6.1 The Website and all information and content (including text, images, video, audio and other material) that In Memory makes available in association with or through the Website, are the sole and exclusive property of In Memory and its licensors, and are protected by Canadian, United Stations, European and international laws, including without limitation, copyright, patent, trademark and other intellectual property laws. All rights, title, and interest in and to the Website not expressly granted under these Terms are reserved by In Memory. Without limiting the generality of the forgoing, In Memory owns the trademarks and design marks, trade dress, domain names, service names, logos and associated designs (“Trademarks”) used in connection with the Website and any unauthorized use of the Trademarks is strictly prohibited. 6.2 If you submit any suggestions, comments or other feedback (“Feedback“) to In Memory regarding the Website, you agree that In Memory shall have a worldwide, perpetual, irrevocable, unrestricted, unlimited and fully paid-up right and license to use, copy, modify, publish, disclose, distribute, license, sublicense, incorporate into its products or Website, and create derivative works of, any Feedback or any ideas or materials contained in or resulting from any Feedback, for any and all commercial and non-commercial purposes. For greater certainty, you agree that In Memory may use and exploit any Feedback in any way at our discretion, without attribution, compensation or obligation to you or to any other party. 6.3 As between you and In Memory, you retain ownership of all content (including text, images, video, audio and other material) that you upload, publish, transmit, link to or otherwise make available through the Website (“User Content”). You agree that you grant to In Memory a non-exclusive, royalty-free, perpetual, irrevocable, transferable, world-wide license, with the right to sublicense, to access, use, reproduce, modify, publish, translate, create derivative works from, distribute, disseminate, perform, transmit, display, store, index and archive your User Content or to incorporate it in other works in any form, media, or technology, for the full term of any rights that may exist in such User Content, in any manner, and without compensation or obligation to you or any other party, to provide and/or promote the Website, in any media or platform. You are solely responsible for all your User Content. Accordingly, you represent and warrant that: (i) you are the owner of all your User Content or you have all rights and licenses that are necessary to grant to In Memory the rights and licenses in and to such User Content as contemplated under these Terms; and (ii) neither your User Content nor In Memory’s use of the User Content (or any portion thereof) will infringe the intellectual property rights, privacy rights, rights of publicity or any other rights of any person, or result in the violation of any applicable law or regulation.
TERM AND TERMINATION 8.1 This Agreement shall continue until terminated in accordance with this Section. 8.2 You may terminate this Agreement at anytime by sending us a notice of termination in accordance with Section 13.6. 8.3 If you are a Vendor, In Memory may terminate this Agreement for convenience by providing you with thirty (30) days’ notice sent to the email address listed in your account information. In Memory may immediately, without notice, terminate this Agreement if: (i) you have violated these Terms; (ii) you have violated applicable laws, regulations or third party rights; or (iii) In Memory determines, in its sole discretion, you have used the Website in a manner which is harmful to the Website, other users or any third parties; or (iv) In Memory decides, in its sole discretion, to cease operating the Website. 8.4 Upon termination of this Agreement for any reason: (i) you shall immediately discontinue your use of the Website; (ii) any rights or licenses granted to you under these Terms will terminate; and (iii) any amounts paid to In Memory will be non-refundable. You are not entitled to a restoration of your account or any of your User Content following termination, or a refund of any amounts paid. If your access to or use of the Website has been limited or your account has been suspended, or this Agreement has been terminated by us, you may not register a new account or access and use the Website through another user’s account. 8.5 Any provision of these Terms in favour of In Memory or which expressly, or by their nature, are intended to survive termination shall survive the expiration or termination of this Agreement.
DISCLAIMER OF WARRANTIES 9.1 YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE WEBSITE IS AT YOUR SOLE RISK, AND THAT THE WEBSITE IS PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN MEMORY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IN MEMORY EXPRESSLY DISCLAIMS THAT: (I) THE WEBSITE WILL MEET YOUR EXPECTATIONS OR SATISFY YOUR REQUIREMENTS; (II) THE WEBSITE AND ANY INFORMATION OR CONTENT MADE AVAILABLE THROUGH THE WEBSITE, INCLUDING BUT NOT LIMITED TO, ANY USER CONTENT, PROFILES AND PRICING INFORMATION, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SAFE, SECURE, ACCURATE, COMPLETE, OR ERROR-FREE; (III) THE RESULTS OBTAINED FROM YOUR USE OF THE WEBSITE WILL BE COMPLETE, ACCURATE, RELIABLE OR USEFUL; AND (IV) THAT ANY ERRORS OR DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE WEBSITE WILL BE CORRECTED. IN ADDITION, IN MEMORY EXPRESSLY DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY IN RELATION TO: (I) ANY INFORMATION OR CONTENT MADE AVAILABLE THROUGH THE WEBSITE, INCLUDING BUT NOT LIMITED TO, ANY USER CONTENT, PROFILES AND PRICING INFORMATION; (II) ANY PRODUCTS, SERVICES OR WEBSITES OFFERED OR PROVIDED BY VENDORS OR OTHER THIRD PARTIES IN ASSOCIATION OR CONNECTION WITH THE WEBSITE; (III) ANY HACKING OR OTHER UNAUTHORIZED ACCESS TO OR USE OF THE WEBSITE; AND (IV) ANY DAMAGE TO YOUR SOFTWARE, COMPUTER SYSTEM OR OTHER PROPERTY CAUSED BY VIRUSES OR OTHER MALICIOUS CODE AS A RESULT OF YOUR ACCESS OR USE OF THE WEBSITE. YOU ACKNOWLEDGE AND AGREE THAT IF YOU ARE DISSATISFIED WITH OR HARMED BY THE WEBSITE, OR WITH ANYTHING RELATED TO THE WEBSITE, YOUR SOLE AND EXCLUSIVE REMEDY WILL BE TO DISCONTINUE USE OF THE WEBSITE AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 8.
LIMITATION OF LIABILITY 10.1 YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL IN MEMORY’S AGGREGATE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT OF ANY PAYMENTS MADE BY YOU TO IN MEMORY IN CONNECTION WITH THE WEBSITE IN THE PRECEDING SIX (6) MONTHS OR $100, WHICH IS GREATER. 10.2 YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN MEMORY WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF IN MEMORY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM OR RELATED TO: (I) THE PURCHASE OF ANY PRODUCTS OR SERVICES OFFERED OR ADVERTISED THROUGH OR OTHERWISE CONNECTED WITH THE WEBSITE; (II) THE USE OR THE INABILITY TO USE OR ACCESS THE WEBSITE, INCLUDING ANY CONTENT, PRODUCTS, WEBSITE, OFFERINGS, INFORMATION OR OTHER MATERIAL AVAILABLE THROUGH THE WEBSITE; (III) ANY ERRORS OR OMISSIONS IN THE WEBSITE OR ANY CONTENT; (IV) THE SUSPENSION OR TERMINATION OF YOUR ABILITY TO ACCESS THE WEBSITE; (V) ANY INTERRUPTION TO OR CESSATION OF THE DELIVERY OF THE WEBSITE OR FAILURE OF OUR SYSTEMS; (VI) THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (VII) UNAUTHORIZED ACCESS TO OR ALTERATION OF OUR SYSTEMS OR YOUR TRANSMISSIONS, DATA AND/OR PERSONAL INFORMATION; (VIII) STATEMENTS OR CONDUCT OF ANY USER OR OTHER THIRD PARTY USING THE WEBSITE; (IX) ANY BUGS, VIRUSES OR THE LIKE THAT ARE TRANSMITTED TO OR THROUGH THE WEBSITE BY ANY THIRD PARTY; OR (X) ANY OTHER MATTER OR EVENT RELATING TO YOUR OR ANY OTHER PARTY’S USE OF THE WEBSITE. YOU ACKNOWLEDGE AND AGREE THAT IF YOU ARE DISSATISFIED WITH OR HARMED BY THE WEBSITE, OR WITH ANYTHING RELATED TO THE WEBSITE, YOUR SOLE AND EXCLUSIVE REMEDY WILL BE TO DISCONTINUE USE OF THE WEBSITE AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 8. 10.3 YOU ACKNOWLEDGE AND AGREE THAT NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR RELATED TO THIS AGREEMENT MAY BE BROUGHT BY YOU MORE THAN TWELVE (12) MONTHS AFTER THE FACTS GIVING RISE TO THE CAUSE OF ACTION HAVE OCCURRED, REGARDLESS OF WHETHER THOSE FACTS BY THAT TIME ARE KNOWN TO, OR OUGHT REASONABLY TO HAVE BEEN DISCOVERED BY, YOU. 10.4 YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES, OR LACK THEREOF, CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY GREATER IF IN MEMORY WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN.
You agree to defend, indemnify and hold us, our affiliates and licensors, and each of our and their respective officers, partners, directors, employees and agents, harmless from and against any and all claims, actions or demands, including without limitation reasonable legal and accounting fees, resulting from or related to: (i) your access to or use of the Website or any User Content; (ii) your creation of a Profile or any transaction in connection with a Profile; (iii) your violation of these Terms; or (iv) your violation of any third party right, including without limitation, any intellectual property, privacy or proprietary right, or obligation of confidentiality. You will use your best efforts to cooperate with In Memory in the defense of any claim. In Memory reserves the right, at our own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.
THIRD PARTY WEBSITE
The Website may enable you to access third party websites, applications or materials linked to or accessible through the Website (“Third Party Website”). In Memory provides access to Third Party Website as a convenience only, and such access does not imply any warranties, representations, endorsements, approvals or verification by In Memory of such Third Party Website. You acknowledge that the use of Third Party Website may be subject to the terms and conditions of such Third Party Website, and that any contract entered into or transaction completed through Third Party Website is between only you and the relevant third party.
GENERAL 13.1 Governing Law. You agree that these Terms, and your use of the Website, are governed exclusively by the laws of the Province of British Columbia and the federal laws of Canada applicable therein (excluding conflicts and choice of laws principles). Any contract formed through the use of the Website will be deemed to have been formed and executed within the Province of British Columbia, Canada. The application of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly excluded. 13.2 Dispute Resolution
(a) Means of Resolution. You and In Memory agree that any disputes arising under these terms or otherwise in connection with your use of the Website will be resolved through arbitration under the Commercial Arbitration Act, R.S.B.C. 1996, c. 55, as amended from time to time. Arbitration will be held in Vancouver, BC, Canada, and conducted in the English language. Notwithstanding the foregoing, you agree that: (i) the courts in any relevant venue will have jurisdiction for the purposes of obtaining and enforcing injunctive or other equitable relief, and for the purposes of enforcing the decision of any arbitrator appointed in accordance with this provision, and (ii) In Memory may bypass arbitration in cases of fraud or other crimes against it, and in the case of interference with its technical operations or violations of its rights or property.