Terms and Conditions
These terms and conditions (“Terms”) govern your use of the Website.
By using the Website, you agree to be legally bound by these Terms.
If you do not accept these Terms, you are not permitted to and must not use the Website.
Unless expressly provided otherwise, in these Terms:
“Account Details” means a username, password and any other details provided by Memories to a Page Administrator for the purpose of accessing or administering a Page.
“Charity” means any body or corporation being a charity wheresoever situate and any corporation or unincorporated association established in any part of the world wholly for charitable purposes and the trustees (in their capacity as such) of any trust or settlement established in any part of the world for charitable purposes.
“Content” means any content or materials including (but not limited to) still or moving images, videos, sound recordings or other audiovisual materials, artistic works, written works and personal information posted to a Page by a User.
“Fee” means any one-off fee that may be charged by Memories from time to time.
“Guest User” means a User other than Page Administrators.
“Guestbook” means the online registration system provided on the Website for Guest Users.
“Intellectual Property Rights” means copyright, all rights conferred under statute, common law or equity in relation to inventions (including patents), registered and unregistered trade marks, registered and unregistered designs, look and feel, trade secrets, circuit layouts and all other rights resulting from intellectual activity in, but not limited to, the industrial, scientific, literary or artistic fields and includes moral rights.
“Memories”, “us”, or “we” means Memories Group Limited (ACN 168 078 055) , its subsidiaries and its subsidiaries’ directors, officers, employees, agents and advisors.
“Order” means an order of a Retail Product made on the Website from time to time.
“Page” means a timeline or any part of the Website that allows you to upload or store media in a collaborative environment.
“Page Administrator” means a User that is granted the rights to administer a Page by Memories.
“Partner” means the various retail partners with whom Memories partners with from time to time to provide the Retail Products.
“Payment Method” means the method by which you choose to pay the relevant Subscription Fee.
“Platform” has the meaning given to that term in clause 7 of these Terms.
“Promotions” has the meaning given to that term in clause 5.
“Promotional Period” has the meaning given to that term in clause 5.
“Purpose” means the creation of a Page to commemorate the life of a Subject.
“Retail Products” means the virtual and physical products that are available to purchase on a one-of basis on the Website from time to time.
“Service” means the service provided by us allowing you to post Content on the Website about a Subject by creating a Page.
“Subject” means a person for whom a Page is created.
“Subscription Fee” has the meaning given to that term in clause 4 of these Terms.
“Subscription Fee Period” has the meaning given to that term in clause 4.
“Subscription Plan” has the meaning given to that term in clause 4 of these Terms.
“Terms” means these terms and conditions.
“User” means a user of the Service.
“Website” means memories.net, memories.com.au, memories.co, memories.co.uk and includes any version of the Service (including any “app” or similar version) that is able to be viewed or accessed on any type of device, including but not limited to tablet devices, and unless the context requires otherwise, includes all related services.
“Website Material” has the meaning given to that term in clause 11 of these Terms.
“you” and “your” and means the person reading these Terms or such other terms or policies adopted in accordance with these Terms.
A User can create a Page using the Website.
Unless the Page relates to you, you must only establish a Page in respect of a Subject that is deceased.
In order to create a Page, you must provide your:
(a) full name;
(c) email address; and
(d) if purchasing a paid Subscription Plan, bank account details for the purpose of paying the Fee.
Once you have created a Page, Memories will assign you as Page Administrator for that Page and will give you the Account Details for that Page.
You may choose to remove the Page at any time. Memories may permit two or more individuals to act as Page Administrator on each Page, with each having equivalent rights in respect of approval and removal of Content. You can apply to appoint other Page Administrators by following the prompts on the Website.
A Page Administrator cannot be transferred to another person other than in accordance with these Terms.
A Page Administrator must:
(a) be at least 18 years of age; and
(b) not be a person that Memories has prohibited from using the Service.
If you are the Subject of a Page, you must nominate another Page Administrator. Once you have nominated another Page Administrator, we will notify them of the nomination and request their consent to become a Page Administrator. Upon obtaining their consent, they will be given the Account Details for the relevant Page and will have all of the rights of access to and use of the relevant Page as the Page Administrator.
You can subscribe via the Website to our Service by signing up to a subscription plan displayed on the Website (“Subscription Plan”).
You acknowledge that, in respect of a paid Subscription Plan, a Subscription Fee may be imposed upon signing up to the Subscription Plan, and, if applicable, using the Service. No Subscription Fee will be imposed for creating a Page under a free Subscription Plan. A different monthly subscription fee (“Subscription Fee”) applies to each Subscription Plan. The full monthly Subscription Fee for each Subscription Plan will be displayed at the time of purchase including, where applicable, any introductory pricing for a specified period. The applicable Subscription Fee will become payable on the date that you sign up to the Subscription Plan, and will be payable monthly until termination of your Subscription Plan (“Subscription Fee Period”).
By signing up to a paid Subscription Plan and providing us with your Payment Method, you authorise us to charge your Payment Method the Subscription Fee for your chosen Subscription Plan for each Subscription Fee Period in accordance with these Terms.
If you choose to pay via a third party biller, your Subscription Fee will be charged by that third party and may be subject to additional third party billing terms which will be notified to you by the third party biller.
We may increase your Subscription Fee at any time by giving at least 21 days’ notice to you. We will provide this notice to you by email to the email address linked to your account. Any increase in the Subscription Fee will be effective on your next Subscription Fee Period payment date. If you do not agree to any increase in your Subscription Fee, you may cancel your Subscription Plan through your account.
We may also increase your Subscription Fee without notice if required by law, or if any regulatory authority requests or requires a change to any part of our pricing which directly affects your Subscription Fee or our pricing structure. If this happens, we will use best endeavours to give you reasonable notice. If you do not agree to that increase in your Subscription Fee, you may cancel your Subscription Plan through your account.
You may cancel your Subscription Plan through your account at any time. Your cancellation of your Subscription Plan will be effective at the end of that Subscription Fee Period, and your Subscription Plan will be discontinued from this date.
You will only receive a pro rata refund of any fees or other amounts already paid to us if:
(b) you cancel as a result of an increased Subscription Fee pursuant to these Terms, in which case, you will be entitled to a pro rata refund of any amounts paid by you of the higher Subscription Fee, and your cancellation will be effective immediately.
You can choose your Subscription Plan when you create a Page. If you already have a Page, you can upgrade or downgrade your Subscription Plan at any time in the “profile” on the Website.
If you upgrade your Subscription Plan, you will be able to access your new Subscription Plan immediately. The new Subscription Fee will be applied pro rata for the remainder of your Subscription Fee Period (unless you are in a free trial) and you will be charged immediately upon upgrade. The full new Subscription Fee will be applied at start of the next Subscription Fee Period.
If you wish to downgrade your Subscription Plan, the downgrade will take effect at the end of that Subscription Fee Period (or free trial if applicable). If applicable, the full new Subscription Fee will be applied at the start of the next Subscription Fee Period.
You may also be able to purchase certain Services for a one-off Fee from time to time.
Your access to a Page including your Subscription Plan may include a free trial period, or other promotional discount or benefit (“Promotions”). We reserve the right to offer, withdraw, change, cancel or determine your eligibility for any Promotion in our absolute discretion.
Some Promotions may run for a certain specified period of time that will be displayed on the Website (“Promotion Period”).
Your credit card may be charged a small nominal amount to verify your credit card, but this verification charge will be refunded without you needing to take any further action.
It is your responsibility to know when your Promotion, and the applicable Subscription Fee for your Subscription Plan once the Promotion has ended.
You acknowledge that at the conclusion of the Promotion, we will commence billing you the monthly Subscription Fee if applicable for your then current Subscription Plan in accordance with these Terms, unless you:
(a) cancel your Subscription Plan prior to the end of the Promotional Period; or
(b) downgrade your Subscription Plan to a free Subscription Plan prior to the end of the Promotional Period.
We reserve the right to offer, withdraw, change, cancel or determine your eligibility for any Promotion or free trial in our discretion for the purposes of preventing abuse of the Promotion or free trial. Promotions and free trials may be subject to terms and conditions published on the Website, which shall apply in addition to and prevail to the extent of any inconsistency with these Terms.
Retail Products will be available to purchase on the Website from time to time.
To purchase Retail Products on the Website, you must place an Order.
For some Retail Products, you may need to place your Order directly through a Partner website and may be required to use any applicable discount code that will be displayed on the Website.
If you make an Order, you:
(a) agree to pay the price of the Retail Products and the applicable delivery fee;
(b) warrant to us that all information provided by you in relation to that Order is accurate, complete and current; and
(c) warrant to us that the Retail Products the subject of your Order are intended for personal, domestic or household use and are not intended for commercial use.
Once you make an Order, Memories will email you an acknowledgement confirming receipt of your Order. This acknowledgement does not constitute our acceptance of the Order. We reserve the right to ask you to provide additional details or to verify your identity before Memories processes your Order. Unless you cancel your Order, acceptance of your Order and the contract between you and Memories will be completed when:
(a) for physical products, we (or our authorised agents) email you to confirm that your Order has been dispatched and has been handed over to the designated carrier; or
(b) for virtual products, the products are sent to the gift recipient via email or the products are posted to the recipient’s Page after purchase.
Completion of Orders is subject to the availability of the Retail Products.
In certain circumstances, the Retail Products will be supplied by a Partner.
We reserve the right not to accept your Order in the event that we are unable to obtain authorisation for payment, the item is out of stock or for any other reason that we reasonably determine. If applicable, we may reject Orders for delivery outside of Australia or to rural or remote locations or to post office boxes or postal lockers within Australia.
If you place an Order for someone else to receive the Retail Products, you must obtain their consent before providing Memories with their personal information and, by placing an Order, you confirm to Memories that you have done this.
Memories reserves the right to cancel, at any time before delivery for whatever reason, an Order that it has previously accepted. Memories may be able to do this, for example but without limitation, where:
(a) Memories’ suppliers are unable to supply the Retail Products that they have previously promised to supply;
(b) an event beyond the control of Memories, such as a storm, fire, flood, earthquake, terrorism, power failure, war, strike or failure of computer systems means that Memories is unable to supply the Retail Products within a reasonable time;
(c) Retail Products ordered were subject to an error on the Website, for example, in relation to a description, price or image, which was not discovered prior to the Order being accepted; or
(d) you ask Memories to cancel your Order in accordance with these Terms.
If we cancel your Order under these Terms, we will refund to you all monies you have paid pursuant to the cancelled Order.
Retail Products are listed on the Website and are subject to change.
Prices for Retail Products and delivery fees for Orders are listed on the Website and, unless otherwise specified, are in Australian Dollars and are inclusive of any applicable Australian taxes, including GST.
Prices for Retail Products in an Order and the delivery fee for that Order are fixed once an Order has been confirmed by us, but prices for Retail Products and delivery fees for Orders are otherwise subject to change.
Discounts may be given at our sole discretion on terms and conditions notified to you by us at the time of the relevant offer.
From time to time, Memories may determine that, in relation to the sale of certain Retail Products, a donation be made by Memories to a Charity. Memories retains the right to decide, in its discretion, the Retail Products to which this may apply, and the associated donation that Memories will make.
If we have received payment in full for your Order, if applicable, we will use our reasonable endeavours to ship your Order to you in a timely manner.
Following shipping of your Order, we will send a confirmation email and invoice for your Order to your nominated e-mail address.
You acknowledge and agree that the shipping or delivery of your Retail Products may be delayed. To the maximum extent permitted by law, we will not be liable for and you forever release and discharge us from any claims you may have against us for any direct, indirect, special, consequential or other damages that result from, are connected with, arise out of, or are incidental to that delay, unless the delay is caused by our negligence.
If you have provided us with an incorrect or incomplete delivery address for your Order or your Order is otherwise returned to us, we may charge you a delivery fee for each subsequent delivery attempt.
Title to and risk in the Retail Products passes to you at the time of delivery of the Retail Products to your nominated delivery address or your account, as applicable.
If you purchase Retail Products from outside Australia, your purchase may be subject to import duties, fees and taxes, which are determined once your shipment reaches your country and is payable by you. You may also be required to pay additional customs clearance charges. Memories is not liable for such import duties, fees, taxes or charges. In addition, orders shipped internationally may be subject to customs clearance procedures that can cause delays beyond our control. If you choose to refuse a shipment from Memories due to a change of mind, you are still responsible for the original shipping charges, duties, fees, taxes and or customs charges incurred, and the cost of return shipping.
In relation to our Services, if you are eligible for any credit or refund, the credit will apply to your account. If you subscribe to multiple Services, it will be applied to the next Service for which you are billed.
In relation to Retail Products, if you believe you are entitled to a repair, replacement or refund of a Retail product, please notify us via email at email@example.com as soon as possible. In your email, please specify the following information:
(a) your name;
(b) your address;
(c) your phone number;
(d) your email address;
(e) a description of the Retail Product that you believe you are entitled to have repaired, replaced or refunded and the reason for this; and
(f) details of the relevant Order, including your receipt number and an invoice for that Order.
Once we receive your email, we will assess the circumstances outlined in your email. Depending on the Retail Product and the relevant circumstances, we may require you to return the physical Retail Product to an address that we will provide to you in our response. We will provide to you a repair, replacement or refund (as applicable) of the Retail Product according to our obligations under the Australian Consumer Law.
We will not provide a repair, replacement or refund of a Retail Product for change of mind returns.
Australian law, including the Australian Consumer Law, provides you with certain rights in respect of our Services and your Order that cannot be excluded by these Terms, including that:
(a) your Retail Products will be of acceptable quality, will be reasonably fit for any disclosed purpose and will correspond with any relevant description; and
(b) the Services will be rendered with due care and skill.
Nothing in these Terms shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy imposed or implied by law, including the Australian Consumer Law, which cannot by law be excluded, restricted or modified.
In addition to these Terms, where you have obtained a version of the Website through the Apple AppStore or other similar application platform (“Platform”), you acknowledge that your use of the Website is governed by these Terms and the Platform’s standard end user licence agreement if and to the extent applicable. In the event of any inconsistency between these Terms and such standard end user licence agreement of the Platform, these Terms shall take precedence over any standard end user licence agreement.
Content can be added to a Page by Users and Page Administrators.
Guest Users that are not Page Administrators can only add Content to a Page by signing up to the Service.
Page Administrators are entitled to accept, reject or exclude Guest Users from posting content on a Page.
When posting any Content onto a Page or otherwise posting any content or interacting with the Website and other Users, you must:
(a) be over 13 years of age;
(b) only use the Website for the Purpose and for no other purpose;
(c) not use the Website for any unlawful purpose and not to violate any applicable local, state, national or international law;
(d) not defame, abuse, harass, stalk, threaten or otherwise violate the legal rights of others;
(e) be respectful of each Subject and their friends and family;
(g) not post any personal information or images identifying a minor without the prior written consent of that individual’s parent or guardian;
(h) not impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(i) not submit Content that contains material that is untrue, inappropriate, tasteless, likely to cause distress, harmful or inappropriate for minors to view, culturally insensitive, unlawful, threatening, abusive, hateful, profane, defamatory, obscene, pornographic, racially vilifying, deliberately provocative or indecent;
(j) not submit Content that is of nuisance value or vexatious;
(k) not infringe the Intellectual Property Rights of others.;
(l) not upload files, or cause users to upload files, that contain viruses, worms, "Trojan horses", corrupted files, or any similar software or programs that may adversely affect, overburden or disable the operation of the Website or the operation of another's computer or other device;
(m) not advertise any goods or services (except where paid advertising is permitted). Sending "junk mail", "spam", "chain letters", "pyramid schemes" and similar activities are strictly prohibited;
(n) not solicit anyone to buy or sell products or services, or to make donations of any kind on the Website, without our express written approval; and
(o) not use a Page for the primary purpose of promoting a cause or movement, whether political, religious or otherwise, nor for the purpose of commemorating or glorifying an individual that is generally considered to be of ill repute or unscrupulous.
You acknowledge that, without limiting any other remedy we may have, we reserve the right to remove any Content that breaches these Terms.
We make no claim to ownership of the Intellectual Property Rights in the Content posted by Users in a Page, but if you post any Content, you:
(a) grant us a non-exclusive, payment free, perpetual, irrevocable licence to reproduce, modify, delete, adapt and publish any Content you post or upload and to sub-licence the same for such purposes in connection with the provision of the Services as Memories considers necessary from time to time;
(c) you warrant that you have all necessary rights and consents in the Content that you contribute and that the Content does not in any way breach these Terms.
The contents of the Website (other than Content), including all other text, graphics, images, logos, icons, photographs, audiovisual material and other content (“Website Material”) are or may be protected by Intellectual Property Rights. Intellectual Property Rights in that material are either owned by or licensed to us.
You may access and view the Website Material for the purpose of your personal use of the Website. Other than for the purpose of your personal use of the Website and except if and as expressly authorised by these Terms, you may not, without our prior written permission, in any form or by any means:
(a) adapt, reproduce, store, distribute, print, display, perform, publish, reverse engineer or create derivative works from any Website Material;
(b) commercialise or on-sell any information, content, products or services obtained from any part of the Website;
(c) mirror or frame the Website or any part or page of the Website; or
(d) use any automated process of any sort to query, access, retrieve, scrape, data-mine or copy any Website Material or generate or compile any document, index or database based on the Website Material.
If you are a recognised media outlet or a commercial online publication, you may use the Website Material subject to you acknowledging Memories as the source of the relevant material re-published by you.
You agree not to disclose to any person or entity, personally identifiable information about other Users that you learn using the Website (whether posted in a Page or e-mailed to you by a User) without the express written consent of such User.
The Website may contain links to other websites. Those links are provided for convenience only and may not remain current or be maintained. We are not responsible for the content or privacy practices associated with linked websites.
Our inclusion of linked websites should not be construed as an endorsement, approval or recommendation by us of the owners or operators of those linked websites, or of any materials, products or services referred to or contained on those linked websites, unless and to the extent expressly stipulated to the contrary.
Memories does not pre-screen postings and to the maximum extent permitted by law we are not responsible or liable in respect of any Content.
We reserve the right (but disclaim the obligation or responsibility) to monitor Content.
We encourage you to notify us of inappropriate or illegal Content and we reserve the right to remove Content posted in breach of these Terms.
If you believe yours or another person or entity’s Intellectual Property Rights have been infringed, please contact us at: Help@memories.net
You may “flag” Content for inappropriateness. We will endeavour to review and, if we consider necessary and appropriate, remove as soon as possible, any Content that has been flagged by two or more Users.
We reserve the right to edit or abridge Content and to disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in our reasonable discretion in order to ensure the orderly, lawful and efficient operation of the Website.
Subject to our right to modify, suspend or discontinue any Page or the Website, any Page created on the Website, and its associated Content, will remain available online so long as Memories continues to conduct its business and operate the Website.
We will endeavour to take into account the wishes of immediate family of a deceased in relation to the establishment of or the Content appearing on a Page, however we reserve the right to remove any Content or Page in its entirety and the right to merge the Content of any two or more Pages relating to the same Subject, at our discretion, including in the event of a dispute over the administration of or Content appearing in a Page.
If you are a Page Administrator, you must keep your Account Details secure and confidential and not provide those details to any third party under any circumstance unless required by law. You may not transfer your rights as Page Administrator to another person without our prior written consent.
Our products are provided “as is”. Subject to your rights and remedies under the Australian Consumer Law, we do not represent, warrant and make no guarantees that they will always be safe and secure, and that the Website or any Content will be available uninterrupted or error free or that any defects in the Website will be corrected in a timely manner or otherwise.
To the maximum extent permitted at law, you agree to indemnify, and keep indemnified, Memories against any and all liabilities, costs (including legal charges), claims, loss, demands or damages directly or indirectly related to or connected with:
(a) your breach of these Terms; or
(b) infringement by you of a third party’s Intellectual Property Rights.
To the maximum extent permitted at law, you acknowledge and agree that Memories will not be liable to any person for, and you forever release and discharge us from any claims that you have now or may have against us, whether under contract, tort, strict liability, negligence or otherwise at law for any special, indirect, incidental, punitive, or consequential damages of any kind whatsoever, or for any loss of profit, use, content, data, opportunity, revenue or business, whether caused by any User or Memories.
In the event of a breach by Memories of a condition, warranty or obligation under these Terms, to the maximum extent permitted by law, Memories’ liability for such breach is limited to:
(a) the replacement of the goods or the re-supply of equivalent goods or services;
(b) payment of the cost of replacing the goods or acquiring equivalent goods or services;
(c) reimbursement of any charges deducted in error; or
(d) refund of charges paid for the Service,
as determined by Memories in its discretion.
To the maximum extent permitted at law, we also disclaim all warranties and representations, whether express or implied. We do not control or direct what people and others do and say, and we are not responsible for their actions or conduct (whether online or offline), or any content that is shared (including offensive, inappropriate, obscene, unlawful or other objectionable content).
Nothing in these Terms is intended to or has the effect of restricting, limiting or modifying your rights and remedies under the Australian Consumer Law.
You must ensure that your access to the Website is not illegal or prohibited by laws or policies (such as employers’ usage policies) that apply to you.
You must take your own precautions to ensure that the process that you employ for accessing the Website does not expose you to the risk of viruses, malicious computer code or other forms of interference which may damage your computer system. We accept no responsibility or liability for any interference or damage to your own computer which arises in connection with your use of the Website or any linked website or service and which is not attributable to Memories.
If we form the view there is a breach or threatened breach of these Terms by you, we reserve the right to suspend or terminate your access to the Website without notice. To the maximum extent permitted at law, these Terms survive such suspension or termination.
Memories reserves the right to ban any person from using the Service on the basis of past or threatened breaches of these Terms.
You can cancel your Subscription Plan at any time.
If you cancel your Subscription Plan due to change of mind, no pro rata refunds will be provided.
If you cancel your Subscription Plan in accordance with clause 4 of the Terms due to an increase in the Subscription Fee which you do not accept, a pro rata refund will be provided calculated in respect of the unexpired portion of that Subscription Fee Period.
If you cancel your Subscription Plan in accordance with clauses 24 or 27 because you do not agree to new terms or revised terms respectively, a pro rata refund will be provided calculated in respect of the unexpired portion of that Subscription Fee Period.
Memories reserves the right to put in place and adopt any further additional terms and policies that it considers reasonable and necessary.
You should visit the Website periodically to review these Terms. However, Memories will notify you by email to the email address linked to your Page when any such new terms and policies are displayed on the Website.
If you do not agree to the new terms, you may cancel your Subscription Plan through your account.
Any provision of these Terms which is void or unenforceable may be severed from these Terms without affecting the enforceability of other provisions.
Any failure or delay by us to enforce or exercise a power or right or provisions of these Terms will not constitute a waiver of those rights or provisions, and the exercise of a power or right by us does not preclude our ability to exercise that or any other power or right in the future. All rights not expressly granted are reserved.
We reserve the right at our reasonable discretion to revise these Terms at any time. You should visit the Website periodically to review these Terms. However, we will notify you by email to the email address linked to your account when amendments are displayed on the Website. Amendments will be effective immediately upon notification on the Website. If you do not agree to the revised terms, you may cancel your Subscription Plan through your account.
These Terms are governed by, and must be construed according to, the law in force in the State of Victoria, Australia. The Courts in that State will have the exclusive jurisdiction to determine disputes in relation to these Terms or any other matter concerning the operation of the Website.