1. Background
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.
2. Definitions
Unless expressly provided otherwise, in these Terms:
“Account Details” means a username, password and any other details provided by Memories to the Administrator for the purpose of accessing or administering a Memorial.
“Administrator” means a User that is granted the rights to administer a Memorial by Memories.
“Charity” means any body or corporation being a charity wheresoever situated 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.
“Child” means any person under the age of 18 years and “Children” has the corresponding meaning.
“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 Memorial 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 the 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 trademarks, 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.
“Live stream” means the digital broadcasting service provided by Memories, which involves real-time streaming of funeral services over the internet. This service includes the video stream, audio visual hardware and network setup, playback over the internet, technical support, the provision of necessary streaming equipment, and options for recording and downloading the streamed content.
“Memorial” means the digital “Memorial” product that allows Users to upload and store Content for a Subject hosted on the Website.
“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.
“Partner” means the various retail partners with whom Memories partners from time to time to provide the Retail Products.
“Payment Method” means the method by which you choose to pay for the Memorial or Retail Product.
“Platform” has the meaning given to that term in clause 7 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: https://memories.net/privacy-policy.
“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 Memorial to commemorate the life of a Subject.
“Retail Products” means the virtual and physical products that are available to purchase on a one-off 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 Memorial and other features associated with a Memorial from time to time.
“Subject” means a person or pet for whom a Memorial is created.
“Terms” means these terms and conditions.
“Trial Memorial” means a Memorial that is available to access for a limited time. Following expiry of the trial period, the Memorial will be inaccessible to the Administrator and other Users.
“User” means a user of the Service.
“Video Tribute” means the Memories video tribute editor tool, the ability for guest users to add Content to a video tribute, and the output video tribute Content generated by the editor tool.
“Website” means memories.net, memories.com.au, memories.co, memories.co.uk and includes any version of the Service (including any “app” or a 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 15 of these Terms.
“you” and “your” means the person reading these Terms or such other terms or policies adopted in accordance with these Terms.
3. Creating a Memorial
A User can create a Memorial using the Website.
In order to create a Memorial, you must provide your:
(a) full name;
(b) address; and
(c) email address.
Once you have created a Memorial, Memories will assign you as the Administrator for that Memorial and will give you the Account Details for that Memorial.
You may choose to cease use or cancel the Memorial at any time. Memories may permit two or more individuals to act as Administrator for each Memorial, with each having equivalent rights in respect of approval and removal of Content. You can apply to appoint other Administrators by following the prompts on the Website.
Administrator rights cannot be transferred to another person other than in accordance with these Terms.
An Administrator must:
(a) be at least 18 years of age; and
(b) not be a person that Memories has prohibited from using the Service.
4. Fees
If you choose to upgrade a Trial Memorial or purchase a Memorial, a Fee will be payable at that time. The Fee is listed on the Website and is subject to change. Unless otherwise specified, the Fee is in Australian Dollars and is exclusive of GST and other applicable Australian taxes.
You will not be entitled to a full or partial refund or credit of the Fee if you choose to deactivate or cease use of a Memorial.
5. Promotions
Memories may from time to time offer, withdraw, change or cancel promotional discounts, benefits or free trials (“Promotions”) in relation to new Memorials, Retail Products, Services or any other goods and services provided by us in our sole and absolute discretion. We reserve the right to offer, withdraw, change, cancel or determine your eligibility for any Promotion in our sole and absolute discretion. The Promotions do not apply retrospectively.
Some Promotion may be offered for a limited period of time that will be specified on the Website.
Promotions may be subject to additional terms and conditions published on the Website, which prevail to the extent of any inconsistency with, and in addition to, these Terms.
6. Orders of Retail Products
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, when your Order has been dispatched by being handed over to the designated carrier. We (or our authorised agents) will email you to confirm when this has occurred; or
(b) for virtual products, the products are sent to the gift recipient via email or the products are posted to the recipient's Memorial 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 determine, acting reasonably. If applicable, we may reject Orders for delivery outside 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.
7. Pricing of Retail Products
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 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 and GST (if applicable) 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 will 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.
8. Delivery of Retail Products
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.
Risk in the Retail Products passes to you at the time of their delivery to your nominated delivery address or your account, as applicable.
Title to the Retail Products passes to you when payment for them has been received in full by Memories.
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 all original shipping charges, duties, fees, taxes and customs charges incurred, and the cost of return shipping.
9. Credits, Refunds and Returns
In relation to our Services, if you are eligible for any refund, the refund will be made to the original payment method.
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 support@memories.net 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.
10. Rights under Australian Law
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.
11. 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 another 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.
12 Adding Content to a Memorial
Content can be added to a Memorial by Users and Administrators.
Guest Users that are not Administrators can only add Content to a Memorial by signing up to the Service. Guest Users can add Content to Guest books and Video Tributes and other Services from time to time.
Administrators are entitled to accept, reject or exclude Guest Users from posting content on a Memorial.
13. Rules for posting Content
When posting any Content onto a Memorial 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 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;
(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;
(g) not post any personal information or images identifying a minor without the prior written consent of that individual's parent or guardian;
(h) in relation to Content or interactions depicting Children:
Portray Children in a respectful, appropriate and consensual way;
Ensure that all Children are adequately clothed and not in poses that could be seen as sexually suggestive;
Attain and document informed consent for the use of the Child's story or image;
When asking for consent, give details as to how, where and for how long the story, information and/or image will be used;
Provide examples of how the story/information and/or image will be used;
Explain how Memories cannot control the use of images once they are loaded onto the internet and that they can be viewed by anyone with internet access at any time;
Ensure that there is no identifying information of the Child used in the publication of images including the Child's family name, community or school name;
Ensure that Children are not portrayed in isolation;
Ensure that local cultural traditions are assessed regarding restrictions for reproducing personal images;
Screen all photographers for their suitability, including police checks and working with children checks where appropriate;
Conduct a risk assessment (with the Child and their family) prior to the publishing of any information about an especially vulnerable Child; and
Store all images and information about Children safely;
(i) not impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(j) not submit Content that contains material that is untrue, inappropriate, tasteless, likely to cause distress, harmful, inappropriate for minors to view, culturally insensitive, unlawful, threatening, abusive, hateful, profane, defamatory, obscene, pornographic, racially vilifying, disrespectful, deliberately provocative or indecent;
(k) not submit Content that is of nuisance value or vexatious;
(l) not infringe the Intellectual Property Rights of others and obtain consent to use and upload material or information including but not limited to, photographs, music tracks, sound recordings, snippets of copyrighted programmes or videos made by other people;
(m) not employ automated tools, including but not limited to bots, crawlers, spiders, or scrapers, to retrieve, access, or collect data from the Website or any User, without the express consent of Memories, for any purpose;
(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 another 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 Memorial 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.
14. Intellectual Property Rights
We make no claim to ownership of the Intellectual Property Rights in the Content posted by Users in a Memorial, 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 appropriate from time to time;
(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
(c) 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.
15. Use of Website Material
The contents of the Website including all 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 when using 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 Website 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 Memorial or e-mailed to you by a User) without the express written consent of such User.
16. 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 expressly stipulated to the contrary.
17. Reviewing and removing content
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 your, or another person or entity's, Intellectual Property Rights have been infringed, please contact us at: support@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 the Website or any Memorial, any Memorial 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.
18. Disputes about Memorials or their Content
We will endeavour to take into account the wishes of immediate family of a deceased in relation to the establishment of and the Content appearing on a Memorial, however, we reserve the right to remove any Content or cancel any Memorial in its entirety and the right to merge the Content of any two or more Memorials relating to the same Subject, at our discretion, including in the event of a dispute over the administration of or Content appearing in a Memorial. You will not be entitled to any refund of the Fee.
19. 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 an 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 Administrator to another person without our prior written consent.
Memories will collect, store, use, disclose, 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 guarantee 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”. Subject to your rights and remedies under the Australian Consumer Law, we do not represent or 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.
20. 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:
(a) your breach of these Terms; or
(b) infringement by you of a third party's Intellectual Property Rights.
21. 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.
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.
22. 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 and which is not attributable to Memories.
23. 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.
You can cancel the Memorial at any time. You will not be entitled to any refund of the Fee paid in respect of that Memorial.
24. Additional terms and policies
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.
If you do not agree to the new terms, you may cancel the Memorial through your account.
25. Severability
Any provision of these Terms which is void or unenforceable may be severed from these Terms without affecting the enforceability of other provisions.
26. 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 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.
27. Amendment
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 the Memorial through your account.
28. 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.
29. Effective Date
These Terms are effective on and from 4 December 2023.