The following Terms and Conditions (“T’s and C’s,” “Terms” or “Agreement”) apply to all services provided by Digital Memorials (“Digital Memorials,” “we,” “us,” or “our”) to you. By using or purchasing services from us, you agree to these T’s and C’s.
1. APPLICATION OF TERMS
1.1. These T’s and C’s apply to all Services provided by Digital Memorials to you during the term.
1.2. The current T’s and C’s is always available on Digital Memorial’s website. We may alter this T’s and C’s at any time with notification to you by email and by posting a notice on our website. If you do not agree to any changes, you must terminate your Services within ten business days of the date of the change. Only a Digital Memorials owner may alter this T’s and C’s. No agent of, or person employed by, or under contract with, Digital Memorials has authority to alter or vary this T’s and C’s. No oral explanation or oral information given by any party shall alter the interpretation of this T’s and C’s.
2. GENERAL TERMS AND CONDITIONS
2.1. You are responsible for obtaining any licenses or permissions from any third party which are required to upload content to the Services (i.e. using your own editing software for images and video clips prior to posting).
2.2. You will receive passwords to be used when you log into your User Area and/or certain Services. You are solely responsible for all passwords. You must keep all passwords confidential and take security measures to prevent any person from gaining access to them.
2.3. Certain aspects of the Services will only be licensed to you. These aspects may only be used by you while using the Services, and may not be transferred. Upon Termination of this T’s and C’s, or a particular Service, this license will end – i.e. personal self content managed memorial page(s).
2.4. The Services are provided to you as configured for our standard customer. We may update or upgrade the Services and/or any software installed on your account at any time without prior notification to you. Your own personal hardware, personal software and any other items you deem necessary to use the Services must be compatible with the Services. We are not obligated to modify the Services to accommodate your use.
2.5. To the maximum extent applicable under national law and without affecting your rights as a consumer, the Services are provided on an “as-is” basis. The hardware configurations may vary. Digital Memorials may replace your host server hardware, transfer it from one datacenter to another, transfer your account to another server or modify certain software configurations when deemed necessary by Digital Memorials. These differing configurations may result in slightly different performance from the Services.
2.6. The proprietary and third-party software we offer as part of the Service is provided as-is and is subject to all warranty disclaimers and limitations of liability set out herein. This software may have terms and conditions that are in addition to those set out in this T’s and C’s. You must agree to those terms to use the software. If you fail to do so, your ability to use the Service may be affected. Terms and conditions incorporated by reference are listed in the respective sections of this T’s and C’s.
2.7. We will use good faith efforts to backup data stored on the shared Services once a day (Shared Backups). Shared Backups are intended for internal use only and we cannot guarantee that a Shared Backup will be available for restore upon your request. It is your responsibility to backup data of all your content PRIOR uploading for final use, in order to prevent further potential data loss.
To the maximum extent applicable under national law and without affecting your rights as a consumer, Backup Services are provided “as-is”. Even if you purchase Backup Services, you agree that you will maintain your own set of backups independent of those we maintain.
We may determine that certain file extensions are not suitable for backup and exclude them from the backup. Examples include, but are not limited to, music, movies and/or archives. It is your obligation to verify whether particular files will be, or have been, backed up.
2.8. We provide certain Services designed to filter unwanted email. Depending on the Services set out in your Order, email filtering may be activated by default; in other cases, it is an additional paid Service. Email filtering will likely result in the capture of some legitimate email and the failure to capture some unwanted email that may contain spam, phishing scams and viruses.
If you terminate the Services, your domain may be pointed to a suspension page (Suspension Page).
3.1. You may purchase Services from us in many different ways. For ease of reference, in this T’s and C’s the method you use to choose which Services to purchase is referred to as an “Order.” Each Order for Services by you shall be deemed to be an offer by you to buy the Services from us subject to this T’s and C’s. No Order shall be deemed to be accepted by us until we provision your account. The date on which we provide notice to you that the account is provisioned is the Effective Date of this Agreement.
3.2. You must be over the age of eighteen at the time you place your Order.
3.3. We will review all Orders to determine if they meet our security and other reasonable criteria. We might ask you for additional information before we can process your Order.
3.4. We are under no obligation to deliver any Services other than those identified in the Order.
3.5. Any instructions supplied by you to Digital Memorials must be complete, accurate and clearly legible. We reserve the right to charge for any costs and any additional work incurred by Digital Memorials due to any failure by you to comply with this paragraph and shall not be liable for any errors caused by such failure.
4. OWNERSHIP OF YOUR ACCOUNT – SELF MANAGED MEMORIALS
4.1. Your contact information is set out in the ‘My Details’ section in the User Area.
4.2. If you, on behalf of another person or entity, create an account, you warrant that you will administer the account in good faith, and will indemnify us against all losses and liabilities sustained by us should you administer the account in ways that are adverse to the End User and result in any claim against us.
4.3. For avoidance of doubt, the individual or entity set out in the Account Owner Information ‘My Details’ section of the User Area is considered by us to be the owner of the account and all associated services (Account Owner). If you are the Account Owner and are administering the account on behalf of a third party, you agree to administer this account in their best interests and indemnify us, should an individual or entity claim that they own the account, or its content, or that your administration has not, or is not, in their interest.
4.4. You are responsible for providing valid contact information and keeping your contact details up to date. If you fail to do so, Digital Memorials accepts no liability in the event that it grants access to the account or gives ownership of the account to another person.
5.1. You are responsible for the charges set out on the Order, in the currency specified on the Order (Fees).
5.2. All Fees may attract applicable taxes and GST, unless explicitly stated otherwise. You are responsible for all taxes and fees levied on the Services.
5.3. If you believe there is an error on your bill, you must contact us in writing. We each agree to work together in good faith to resolve any billing disputes. If you contact your credit card company, prior to notifying us of a dispute, and initiate a “chargeback” based on this dispute, we will charge you for investigation and processing. This compensates us for the investigation your card issuer requires us to conduct in order to demonstrate our right to payment. All of your Services may be suspended during bill disputes. To reactivate your Services, you must first pay all outstanding Fees.
5.4. We will apply any refund using the same means of payment as you used for the initial transaction, unless we have expressly agreed otherwise. Digital Memorials is not responsible for delays to refunds caused by processing institutions or expiration of the original payment method.
5.5. We may return part of a pre-paid Fee as credit added to your account (Digital Memorials Wallet), unless a refund is required by law. Digital Memorials Wallet amounts may only be used for future purchases and/or renewals of Digital Memorials services. Unless we specify otherwise, Digital Memorials Wallet amounts will expire if unused for more than twelve months. Digital Memorials Wallet amounts cannot be refunded.
6. TERMINATION & CANCELLATION
Either party may terminate this T’s and C’s upon written notice to the other if one party materially breaches any terms of this T’s and C’s and the breaching party fails to correct the breach within ten days following the other party’s written notice, or immediately, if the breach is incapable of cure.
6.1. Termination by Digital Memorials
Digital Memorials may terminate this T’s and C’s if
(i) you fail to pay any sums due (including Fees) to Digital Memorials as they are due;
(ii) in Digital Memorials’s reasonable opinion, you do not have sufficient technical expertise to use the Services without excessive ongoing technical support;
(iii) Digital Memorials determines in good faith that continued provision of the Service has become impractical or unfeasible for technical, legal, regulatory or any other material reason; or
(iv) you violate this T’s and C’s or any agreement incorporated by reference.
We may terminate a particular Order, or aspect of the Services, if a Third Party ceases to make components of the Service available to us, or if providing them to you becomes cost prohibitive.
6.2. Termination by you
You may terminate the Services at any time. We will send you an email confirmation to acknowledge your completion of the Cancellation Request.
7. TECHNICAL SUPPORT
Our technical support is available for all current customers and is provided on an as-is, as available basis. If your request for technical support exceeds that of similarly situated customers or is within the scope of our paid support and development services, we may charge you additional support fees. We will inform you, and receive your consent, prior to charging you for technical support.
If you request technical support, you agree that we may have full access to all aspects of the Services accessible to us based on your request. You are solely responsible for any changes you make to your account after we complete your request.
To the maximum extent applicable under national law and without affecting your rights as a consumer, all support is provided as-is and is subject to the disclaimers of warranties and limitation of liability set out in this T’s and C’s. While we will use reasonable efforts to provide technical support to you and to perform any work you request in a timely and professional manner, we cannot guarantee the result you expect or that an issue might not occur again. We retain the right to refuse to provide technical support to you if your use of technical support exceeds that of similarly situated customers, or if you are verbally abusive to our employees or contractors. We may refuse to perform any request that requires changes not compatible with the Services or is not related to them or might create a security risk or endanger their performance.
It is your obligation to perform and store a backup of your data and files prior to requesting technical support. In the event that you are not satisfied with the outcome of any technical support, it is your obligation to restore your files and data from your own backup.
8. INTELLECTUAL PROPERTY RIGHTS AND OTHER CONSENTS
8.1. Digital Memorials retains ownership of all intellectual property rights in the Services. Digital Memorials grants to you a limited license to access and use the Services. All trademarks, product names and company names or logos used by Digital Memorials are Digital Memorials’s property or the property of their respective owners. No permission is given by Digital Memorials to you or an affiliate to use any such trademarks, product names, company names, logos or titles, and you acknowledge that such use is an infringement of the owner’s rights.
8.2. You are solely responsible for obtaining all intellectual property rights in the intellectual property of others, including, but not limited to, clearances and/or other consents and authorizations necessary to use the names, marks or other materials which are used by you in, or transmitted via, the Services (Objects). On becoming aware of any dispute between you and any other individual or organization regarding the Objects, Digital Memorials reserves the right, at its sole discretion and without notice or liability to you, to cease any further use of such Objects including, without limitation, deleting or suspending them from its computer systems and/or to make appropriate representations or provide information to any relevant authority or interested party.
9. REPRESENTATIONS AND WARRANTIES
9.1. You promise that (i) you have the experience and knowledge necessary to use the Services; (ii) you and your End Users understand and appreciate the risks inherent to you and your business that come from accessing the Internet; (iii) you have sufficient knowledge about administering, designing and operating the functions facilitated by the Services necessary to take advantage of them; (iv) you will not violate any applicable laws and/or regulations in your use of the Services; (v) you own all intellectual property rights in, or have a license to use, any information you provide to us necessary for us to perform the Services, or to any information transmitted by us through the Services; (vi) you will make backup copies of all information in a location independent of ours, and will not use Backup Services as your sole backup; and (vi) you will pass through the terms of this T’s and C’s, and any agreements incorporated by reference, to your End Users.
9.2. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW AND WITHOUT AFFECTING YOUR RIGHTS AS A CONSUMER, WE MAKE NO WARRANTIES, AND ANY IMPLIED WARRANTIES ARE EXPRESSLY DISCLAIMED. THE SERVICE(S) IS PROVIDED AS-IS. YOUR USE OF THE SERVICE(S) IS AT YOUR OWN RISK. WE DO NOT MAKE, AND HEREBY DISCLAIM, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE DO NOT WARRANT THAT THE SERVICE(S) WILL MEET ANY OR ALL OF YOUR EXPECTATIONS; WILL OPERATE IN ALL OF THE COMBINATIONS WHICH MAY BE SELECTED FOR USE BY YOU; OR THAT THE OPERATION OF THE SERVICE(S) WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE. NO EMPLOYEE OR AGENT IS AUTHORIZED TO MAKE ANY WARRANTY ON OUR BEHALF.
10. LIMITATION OF LIABILITY
YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU WILL NOT UNDER ANY CIRCUMSTANCES INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, HOLD US OR OUR LICENSORS, AGENTS, EMPLOYEES, OFFICERS AND/OR THIRD PARTY VENDORS LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, COST SAVINGS, REVENUE, BUSINESS, DATA OR USE, OR ANY OTHER PECUNIARY LOSS BY YOU OR ANY OTHER THIRD PARTY. YOU AGREE THAT THE FOREGOING LIMITATIONS APPLY WHETHER IN AN ACTION IN CONTRACT OR TORT OR ANY OTHER LEGAL THEORY AND APPLY EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL WE BE LIABLE TO YOU IN THE AGGREGATE WITH RESPECT TO ANY AND ALL BREACHES, DEFAULTS, OR CLAIMS OF LIABILITY UNDER THIS T’s and C’s OR UNDER ANY OTHER AGREEMENT OR DOCUMENT FOR AN AMOUNT GREATER THAN THE FEES ACTUALLY PAID BY YOU TO US DURING THE THREE MONTH PERIOD PRECEDING A CLAIM GIVING RISE TO SUCH LIABILITY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. YOU AGREE THAT IN THOSE JURISDICTIONS, OUR LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW AND YOUR RIGHTS AS A CONSUMER..
11.1. We shall compensate you fully and not counter-claim against you, and at our own expense agree to defend, or at our option to settle, any claim, suit or proceeding brought or threatened against you so far as it is based on a claim that the Services infringe any issued patent or registered copyright. This provision is expressly limited to aspects of the Services which are fully owned by us. It does not extend to products or services provided by third parties even if incorporated into the Services.
11.2. You agree to defend, compensate fully and not counter-claim against us, our parent, subsidiary and affiliated companies, third party service providers and each of their respective officers, directors, employees, shareholders and agents (each an “indemnified party” and, collectively, “indemnified parties”) from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorneys’ fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to: (i) your use of the Services; (ii) any violation by you of any of our policies; (iii) any breach of any of your representations, warranties or covenants contained in this T’s and C’s; and/or (iv) any acts or omissions by you. The terms of this section shall survive any termination of this T’s and C’s. For the purpose of this paragraph only, the term “you” as set out in subparagraphs (i) through (iv) includes you, End Users, visitors to your website, and users of your products or services, the use of which is facilitated by us.
12. CERTAIN INFORMATION
12.1. Both you and Digital Memorials undertake not to disclose to a third party any confidential information which you or Digital Memorials receive relating to the contents or performance of this T’s and C’s, unless necessary for a party to perform their obligations under this T’s and C’s, the Services or the other party’s business in general, and shall procure that each of its directors and employees shall not do so, except with the prior consent in writing of the other party, as required by law, or to the extent to which that information is publicly available or already known to the receiving party at the date of receipt, other than through any unauthorized disclosure by any person.
12.2. Without prejudice to Paragraph 12.1., Digital Memorials shall be entitled to mention your name as a client of Digital Memorials and the name(s) of the Services which Digital Memorials provides to you with your prior consent.
12.3. If a law or regulation compels disclosure of information held by us, we are required to respond. Unless notifying you is prohibited by the law, or a reasonable interpretation of that law, we will use reasonable efforts to contact the Account Owner. We are not required to respond to demands by you that we provide information about your account as part of litigation. However, if we agree to do so, we will charge you administrative hourly fee for each hour we spend responding to your request. You will also be charged the fees we are charged by our attorneys in responding to your request.
13.1. Any notice to be given by either party to the other may be sent by email, support ticket, fax or recorded delivery if (i) to you, the Account Owner; or (ii) to us, as set out in paragraph 13.4. In addition, we may communicate with you using the Support ticketing system facilitated by our User Area. Notices of support tickets opened on your behalf are sent to you by email and shall be deemed received upon sending.
13.2. You are required to provide notices to us about the Services through the User Area. We will provide notices to you using the information you provide to us in the “My Details” section of the User Area. We have no responsibility for misdirected notices based on your failure to provide correct information.
13.3. Termination notices must be provided to us as set out in paragraph 6.
13.4. Legal Notices to us, which are effective only upon acknowledged receipt, shall be provided to us as follows:
Digital Memorials Ltd.
42B Bel Air Drive, Hillsborough, Auckland 1061, New Zealand
14. RESOLUTION OF DISPUTES AND CHOICE OF LAW
14.1. Any dispute, controversy or claim arising under this T’s and C’s shall be resolved in accordance with the procedures set forth in this Section.
14.2. In the event of a dispute between the parties relating to this T’s and C’s, each of the parties shall appoint a designated representative who has authority to settle the dispute. The designated representatives shall meet as often as they reasonably deem necessary in order to discuss the dispute and negotiate in good faith in an effort to resolve the dispute. The specific format for such discussions will be left to the discretion of the designated representatives; however, all reasonable requests for relevant information made by one party to the other shall be honored.
14.3. The parties agree that the courts of England shall have non-exclusive jurisdiction over all disputes and other matters relating to the interpretation and enforcement of this T’s and C’s or any other document entered into by the parties. All disputes and other matters relating to the interpretation and enforcement of this T’s and C’s or any other document entered into by the parties shall be governed by the laws of England and Wales.
Section A – Service Level Agreement (SLA)
Digital Memorials reliable hosting service is backed up by an industry-leading Service Level Agreement (SLA). We guarantee network uptime 99.9% of the time during a twelve month period, starting on the date you order your account. If we fall below that, we will notify you by email and we will automatically compensate your account as follows:
Compensation is limited to the length of your current Term, but cannot exceed twelve months.
The following events do not count towards our calculation of uptime:
– Scheduled maintenance;
– Emergency maintenance, hardware and software failure;
– Distributed denial of service (DDOS) attacks, hacker attacks, and other similar events;
– Downtime caused by you, your own configuration, or third-party applications you use;
– Downtime caused when you reach the maximum resources allocation for your plan;
– Downtime caused because you have violated this T’s and C’s;
– Downtime during work on your technical support request(s); or
– Force majeure.
Section B – Money Back Guarantee
Our 30 day Money Back Guarantee gives you peace of mind that our Services will meet the expectations set out in the T’s and C’s. To the maximum extent applicable under national law and without affecting your rights as a consumer, the Money Back Guarantee is your sole and exclusive remedy should our Services fail to meet the expectations set out in this T’s and C’s.
The following conditions apply to our Money Back Guarantee:
– Service Termination requests must be posted through your User Area;
– Initial orders are covered within thirty days from the day we activate the Service(s);
Section C – Upgrade/Downgrade Policy
You can choose to upgrade or downgrade the Hosting Services at any time. All available upgrade options will be listed in your User Area and are subject to the fees set out on the respective Product Pages (Upgrade Fees).
The Upgrade Fee covers any account data transfer from one Server to another that might be required as part of the upgrade process. Any additional Services you have on the account will also be transferred, as long as they are compatible with the features of the new plan.
Section D – Backup Services
We are pleased to provide you with Daily Backup and Backup Restore Services. As part of our Daily Backup services we keep a limited number of backup copies of your account as set out on the respective Product Page. If you change the Services, we may delete the old backup copies created on your previous plan and start new backups of your account.
If you order Daily Backup services for your Dedicated Server account, you subscribe for a certain backup space size. In the event that your backup space exceeds that size, we will continue to make full backup of your account and will charge you overage fees with your next renewal invoice.
Backup Restore services are part of our paid support services and can be ordered from your User Area. Depending on the hosting Services you have chosen, we may provide backup restore tools or services to you.
We may suspend the Daily Backup Service for your account or refuse to restore your data, if in our reasonable opinion such backup will result in a security risk or will alter the performance of our Server to the detriment of other customers.
To the maximum extent applicable under national law and without affecting your rights as a consumer, our Backup Services are provided as-is and are subject to all limitations of liability set out in this T’s and C’s. You agree to notify us through your User Area in case the Backup Service malfunctions and allow us reasonable time to resolve any issues. You agree that you will maintain your own set of backups independent of those we maintain. In the event that you are not satisfied with the outcome of any Backup Restore, it shall be your obligation to restore your files and data from your own backup.