Terms and Conditions

1. Background

Memories Terms and Conditions

These terms and conditions (“Terms”) govern your use of the Website. In 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 refrain from using the Website.

2. Definitions

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.

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.

Page” means a timeline or any part of the Platform that allow 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.

Platform” has the meaning given to that term in clause 5 of these Terms.Privacy Policy” means the privacy policy of Memories (as amended from time to time),

the current version of which can be accessed at the following link: www.memories.net

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.

Memories”, “us”, or “we” means Skymorials, its subsidiaries and Skymorials and its subsidiaries’ directors, officers, employees, agents and advisors.

Service” means the service provided by us allowing you to post Content on the Website about a Subject by creating a Page.

Skymorials” means Skymorials Pty Ltd (ACN 168 078 055).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 Period” means the relevant period of your Subscription Plan.

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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.

  1. Creating a Page

    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:

    1. (a) full name;

    2. (b) address;

    3. (c) bank account details for the purpose of paying the Fee; and

    4. (d) email address.

    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:

    1. (a) be at least 18 years of age; and

    2. (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 and use to the relevant Page as the Page Administrator.

  2. Subscription and Fees

    You can subscribe to our Service by purchasing a subscription plan for a specified period displayed at the time of purchase via the Website (“Subscription Plan”).

    You acknowledge that creating a Page will not incur the Subscription Fee initially, but that a Subscription Fee may be imposed for certain Subscription Plans.

    You can upgrade or downgrade your Subscription Plan at any time in the “Profile” section of the Website,

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The price for each Subscription Plan will be displayed at the time of purchase including, where applicable, any introductory pricing for a specified period (“Subscription Fee”). You must pay the Subscription Fee in advance of each Subscription Period.

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 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.

Your Subscription Plan will automatically renew at the end of each Subscription Period for a further Subscription Period, unless you cancel your Subscription Plan prior to the end of your current Subscription Period. You may cancel your Subscription Plan through your account at any time prior to your renewal date, or as otherwise specified by us or one of our third party billing partners.

Cancellation of your auto-renewal will only be effective at the end of the current Subscription Period and you will continue to have access to the Services until the end of the current Subscription Period. No pro rata refunds will be provided to customers that cancel during a Subscription Period.

If you upgrade your Subscription Plan, you will be able to access your new Subscription Plan immediately. If you upgrade during your current Subscription Plan, the new Subscription Fee will be applied pro rata for the remainder of the Subscription Period (unless you are in a free trial) and you will be charged immediately upon upgrade. The full Subscription Fee for your new Subscription Plan will be charged in advance at the start of your next Subscription Period.

If you wish to downgrade your Subscription Plan, the downgrade will take effect immediately and pro rata refund will be provided. You will be charged your new Subscription Fee at the start of your next Subscription Period.

You may also be able to purchase certain Services for a one-off Fee from time to time.

5. Promotions

Memories may, from time to time, run promotions for the Services (“Promotions”). The Promotions will run for a certain specified period of time (“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.

You acknowledge that at the conclusion of the Promotion, your Subscription Plan will automatically renew, and you will be automatically charged the relevant Subscription Fee. You will not be charged the relevant Subscription Fee at the conclusion of the Promotion Period if you:

  1. (a) cancel your Subscription Plan at least 24 hours prior to the end of the Promotional Period; or

  2. (b) downgrade your Subscription Plan to a free Subscription Plan at least 24 hours 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 which shall apply in addition to, and prevail to the extent of any inconsistency with, these Terms.

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  1. Credits and Refunds

    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.

  2. Application of third-party Standard End User License Agreements

    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.

  3. Adding Content to a Page

    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 Platform.

    Page Administrators are entitled to accept, reject or exclude Guest Users from posting content on a Page.

  4. Rules for posting Content

    When posting any content onto a Page or otherwise posting any content or interacting with the Website and other Users, you must:

    1. (a) be over 13 years of age to be a User;

    2. (b) only use the Website for the Purpose and for no other purpose;

    3. (c) not use the Website for any unlawful purpose and not to violate any applicable local, state, national or international law;

    4. (d) not defame, abuse, harass, stalk, threaten or otherwise violate the legal rights of others;

    5. (e) be respectful of each Subject and their friends and family;

    6. (f) not post any Content about any living person by which they may be personally identified without their prior written consent (which you must provide to us within 5 days of a request for same by us) or which in any way compromises another living person’s privacy or breaches confidentiality. When obtaining such consent you must also obtain their consent for us to collect their information in accordance with our Privacy Policy;

    7. (g) not post any personal information or images identifying a minor without the prior written consent of that individual’s parent or guardian;

    8. (h) not impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;

    9. (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;

    10. (j) not submit Content that is of nuisance value or vexatious;

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  1. (k) not infringe the Intellectual Property Rights of others. Without limiting any other provision of these Terms, you must not post any Content that is the work of a third party without their prior written permission (which you must provide to us within 5 days of a request for same by us);

  2. (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 otherdevice;

  3. (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 strictlyprohibited;

  4. (n) not solicit anyone to buy or sell products or services, or to make donations of any kind on the Website, without our express writtenapproval; and

  5. (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.

  1. Intellectual Property Rights

    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:

    1. (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 as Memories determines from time to time in its sole discretion (subject to the Privacy Policy) and you agree that we may do so without attribution of authorship;

    2. (b) grant us the right to use your name and other information that you provide in connection with that Content (subject to our Privacy Policy); and

    3. (c) you warrant that you have all necessary rights and consents in the Content that you contribute, the Content does not in any way breach theseTerms.

  2. Use of Website Material

    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 is 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:

    1. (a) adapt, reproduce, store, distribute, print, display, perform, publish, reverse engineer or create derivative works from any Website Material;

    2. (b) commercialise or on-sell any information, content, products or services obtained from any part of the Website;

    3. (c) mirror or frame the Website or any part or page of the Website; or

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(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 recognized 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 suchUser.

12. Links

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 stipulated to the contrary.

  1. Reviewing and removing content

    Memories does not pre-screen postings and to the maximum extent permitted at 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 postings for any reason.

    If you believe yours or another person or entity’s Intellectual Property Rights have been infringed by our activity, or the activity of a User on the Website, please contacts us at: help@memories.net

    You may “flag” Content for inappropriateness. We will endeavour to remove as soon as possible, any Content that has been flagged by two or more Users.

    We do not guarantee that we will display or continue to display all Content that you or any other users post on a Page. We also reserve the right to edit or abridge Content for any reason 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 sole discretion.

    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 operates the Website.

  2. Disputes about Pages or their Content

    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.

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15. Privacy, Security of Information and data and system integrity

Memories will take all reasonable steps to ensure the security of the Website. Our policy on the collection, use and disclosure of your personal information is set out in our Privacy Policy which forms part of these Terms.

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.

Memories will collect, store, use, disclosure, protect and otherwise handle your personal information (and the personal information of others) in accordance with our Privacy Policy. Nevertheless, no data transmission over the internet can be guaranteed as totally secure. While we strive to protect such information, we do not warrant and cannot ensure the security of any information which you transmit to us. Accordingly, any information which you transmit is at your own risk. Nevertheless, once we receive your transmission we will take reasonable steps to preserve the security of such information.

Our products are provided “as is”, and 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.

16. Indemnity

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 your use of the Website, including (without limitation) as a result of:

  1. (a) your breach of these Terms;

  2. (b) loss or damage caused by you or any person using a Page or Account Details (whether with or without your permission); or

  3. (c) infringement by you of a third party’s Intellectual Property Rights.

17. Limitation of liability

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.

Nothing in these Terms purports to limit Memories’ liability under the Australian Consumer Law or otherwise required at law.

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:

  1. (a) the replacement of the goods or the supply of equivalent goods orservices;

  2. (b) payment of the cost of replacing the goods or acquiring equivalent goods or services;

  3. (c) reimbursement of any charges deducted in error; or

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(d) refund of charges paid for the Website, 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).

  1. Warnings

    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.

  2. Termination and prohibition of access

    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.

  3. Additional terms and policies

    Memories reserves the right to put in place and adopt any further additional terms and policies that it considers necessary. Any such new terms and policies will be displayed on the Website, and you will be bound by the terms of these terms and policies.

  4. Severability

    Any provision of these Terms which is void or unenforceable may be severed from these Terms without affecting the enforceability of other provisions.

  5. Waiver

    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 of 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.

  6. Amendment

    We reserve the right at our sole discretion to revise these Terms at any time. You should visit the Website periodically to review these Terms. Amendments will be effective immediately upon notification on the Website. Your continued use of the Website

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following such notification will represent an agreement by you to be bound by these Terms as amended.

  1. Governing Law

    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.

  2. Effective Date

    These Terms are effective on and from 3 Aug 2020