TERMS AND CONDITIONS
We provide Authorised Users (as defined below) access to the Platform subject to our Master Subscription Agreement.
1. DESCRIPTION AND USE OF OUR PLATFORM
We provide access to the Platform as described below.
Subscribers. Subscribers are facilities, such as funeral homes, that organise and host events (“Events”) on behalf of their customers (“Customers”). Each Subscriber designates one (1) or more users (each, an “Authorised User”), who may access and use the Platform in accordance with our Master Subscription Agreement with the Subscriber.
End Users. End Users are individuals authorised by a Customer to view a specific Event through the Platform. End Users can: (i) view all publicly-available content on the Platform; (ii) view Events that Customers have authorised them to view; (iii) post comments, such as condolences, and other content on the Platform (collectively, “End User Content”); (iv) purchase One Room products and services, such as a DVD or a download of an Event for which you are authorised (each, an “Order”); (v) sign up for alerts and other notifications; and (vi) contact us via the Website.
Visitors. Visitors, as the term implies, are people who do not register or sign up to use the Platform. No login or other authentication is required for Visitors. Visitors can: (i) view all publicly-available content on the Platform; and (ii) contact us via the Website.
One Room is under no obligation to accept any individual as an End User and may accept or reject any End User in its sole and complete discretion. In addition, One Room may deactivate any account or suspend or terminate a Visitor’s or End User’s access to the Platform at any time, including, without limitation, if it determines that such Visitor or End User has violated this Agreement.
2. COMMUNITY GUIDELINES
One Room’s community, like any community, functions best when its users follow a few simple rules. By accessing and/or using the Platform, you agree to comply with these community guidelines (the “Community Guidelines”) and that:
- You will comply with all applicable laws in your use of the Platform and will not use the Platform for any unlawful purpose;
- You will not upload, post, e-mail, transmit, or otherwise make available to One Room or the Platform any content that:
- infringes any copyright, trademark, right of publicity, or other proprietary rights of any person or entity; or
- is defamatory, libelous, indecent, obscene, pornographic, sexually explicit, invasive of another’s privacy, promotes violence, or contains hate speech (i.e., speech that attacks or demeans a group based on race or ethnic origin, religion, disability, gender, age, veteran status, and/or sexual orientation/gender identity; or
- discloses any sensitive information about another person, including that person’s e-mail address, postal address, phone number, credit card information, or any similar information, unless you have that person’s express permission.
- You will not “stalk,” threaten, or otherwise harass another person;
- You will not spam or use the Platform to engage in any commercial activities;
- If you post any End User Content, you will stay on topic and be tasteful;
- You will not access or use the Platform to collect any market research for a competing business;
- You will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
- You will not interfere with or attempt to interrupt the proper operation of the Platform through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any data, files, or passwords related to the Platform through hacking, password or data mining, or any other means;
- You will not cover, obscure, block, or in any way interfere with any advertisements and/or safety features on the Platform;
- You will not use any robot, spider, scraper, or other automated means to access the Platform for any purpose without our express written permission; provided, however, we grant the operators of public search engines permission to use spiders to copy materials from the public portions of the Platform for the sole purpose of and solely to the extent necessary for creating publicly-available searchable indices of the materials, but not caches or archives of such materials;
- You will not take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure; and
- You will let us know about inappropriate content of which you become aware. If you find something that violates our Community Guidelines, please let us know, and we’ll review it.
We reserve the right, in our sole and absolute discretion, to deny you access to the Platform, or any portion of the Platform, without notice, and to remove any content that does not adhere to these Community Guidelines.
The Platform is only available for individuals aged 18 years or older. If you are 18 or older, but under the age of majority in your jurisdiction, you should review this Agreement with your parent or guardian to make sure that you and your parent or guardian understand it.
4. ACCESS CREDENTIALS
In order to view an Event, End Users will be given access credentials, such as an access code, login, and password (the “Access Credentials”). In connection with obtaining these Access Credentials, you must provide true, accurate, current, and complete information (either directly to One Room or indirectly to One Room through the applicable Customer or Subscriber). You may share these Access Credentials only with others who are authorised to the view the applicable Event. Any other sharing is a material breach of this Agreement. You will promptly inform us of any need to deactivate any Access Credentials. We reserve the right to delete or change the Access Credentials at any time and for any reason and shall have no liability to you for any loss or damage caused by such action.
5. FEES AND PAYMENT FOR ORDERS
As consideration for any Order you make on the Platform, you shall pay One Room all applicable fees and taxes. We (or our third-party payment processor) shall authorise your credit card, bank account, or other approved payment facility you provided during the checkout process for the full payment of the fees and any applicable taxes, and you hereby consent to the same. All payments will be charged and made in your local currency.
You must provide current, complete, and accurate Billing Information. You must promptly update all Billing Information to keep your account current, complete, and accurate, and you must promptly contact us if your credit card is lost or stolen, or if you become aware of a potential breach of account security (such as an unauthorised disclosure or use of your Access Credentials). You hereby authorise One Room to obtain or determine updated or replacement expiration dates for your credit card in the event that the credit card you provided us expires. We reserve the right to charge any renewal card issued to you to the same extent as the expired card. If payment is not received from your credit card issuer, you hereby agree to pay all amounts due upon demand. You agree to pay all costs of collection, including all legal fees and costs, on any outstanding balance. In certain instances, the issuer of your credit card may charge you a foreign transaction fee or related charges, which you will be responsible to pay. You are advised to check with your bank and credit card issuer for details.
6. INTELLECTUAL PROPERTY
The Platform contains material, such as videos, photographs, software, text, graphics, images, sound recordings, and other material provided by or on behalf of One Room (collectively referred to as the “Content”). The Content may be owned by us (as is the case with the recordings of the Events) or third parties. The Content is protected under both New Zealand, Australian and possibly other applicable laws. Unauthorised use of the Content may violate copyright, trademark, and other laws.
Visitors may view all publicly-available Content for their own personal, non-commercial use. End Users may: (i) view all Events for which they are authorised; and (ii) download onto their own machines and view any Content for which they are authorised that is contained in an Order for their own personal, non-commercial use. Other than as expressly set forth in the immediately two prior sentences, you have no other rights in or to the Content (other than your own End User Content that you post to the Platform), and you will not use the Content except as permitted under this Agreement. No other use is permitted without the prior written consent of One Room. One Room retains all right, title, and interest, including all intellectual property rights, in and to the Content. You must retain all copyright and other proprietary notices contained in the original Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose; provided, however, End Users authorised to download any Content contained in an Order, may make a copy (e.g., burn onto a DVD) for their personal, non-commercial use. The use or posting of the Content on any other website, social media page, or in a networked computer environment (including, without limitation, Facebook, YouTube, or Vimeo), for any purpose is expressly prohibited.
If you violate any part of this Agreement, your permission to access and/or use the Content and the Platform automatically terminates and you must immediately destroy any copies you have made of the Content.
The trademarks, service marks, and logos of One Room (the “One Room Trademarks”) used and displayed on the Platform are registered and unregistered trademarks or service marks of One Room. Other company, product, and service names located on the Platform may be trademarks or service marks owned by others (the “Third-Party Trademarks,” and, collectively with One Room Trademarks, the “Trademarks”). Nothing on the Platform should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of One Room Trademarks inures to our benefit.
Elements of the Platform are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including, but not limited to, the use of framing or mirrors. None of the Content may be retransmitted without our express, written consent for each and every instance.
7. END USER CONTENT; LICENSES
As noted above, the Platform provides End Users the ability to post and upload End User Content. You expressly acknowledge and agree that once you submit your End User Content for inclusion into the Platform, it will be accessible by others, and that there is no confidentiality or privacy with respect to such End User Content, including, without limitation, any personally identifying information that you may make available. YOU, AND NOT ONE ROOM, ARE ENTIRELY RESPONSIBLE FOR ALL YOUR END USER CONTENT THAT YOU UPLOAD, POST, E-MAIL, OR OTHERWISE TRANSMIT VIA THE PLATFORM.
You retain all copyrights and other intellectual property rights in and to your own End User Content. You do, however, hereby grant us and our sublicensees a non-exclusive, royalty-free, freely sublicensable, perpetual license to modify, compile, combine with other content, copy, record, synchronise, transmit, translate, format, distribute, publicly display, publicly perform, and otherwise use or exploit (including for profit) your End User Content and all intellectual property and moral rights therein throughout the universe, in each case, by or in any means, methods, media, or technology now known or hereafter devised. You also grant us and our sublicensees the right, but not the obligation, to use your End User Content, name, likeness, and photograph in connection with any use of the related End User Content permitted by the previous sentence and/or to advertise and promote the Platform, One Room, and our products and services. Without limiting the foregoing, you acknowledge and agree that uses of your End User Content, name, likeness, and photograph permitted by the foregoing rights and licenses may include the display of such End User Content, name, likeness, and photograph adjacent to advertising and other material or content, including for profit.
If you submit End User Content to us, each such submission constitutes a representation and warranty to One Room that such End User Content is your original creation (or that you otherwise have the right to provide the End User Content), that you have the rights necessary to grant the license to the End User Content under the prior paragraph, and that it and its use by One Room and its content partners as permitted by this Agreement does not and will not infringe or misappropriate the intellectual property or moral rights of any person or contain any libelous, defamatory, or obscene material or content that violates our Community Guidelines.
8. COMMUNICATIONS WITH US
Although we encourage you to e-mail us, we do not want you to, and you should not, e-mail us any content that contains confidential information. With respect to all e-mails and communications you send to us, including, but not limited to, feedback, questions, comments, suggestions, and the like, we shall be free to use any ideas, concepts, know-how, or techniques contained in your communications for any purpose whatsoever, including but not limited to, the development, production, and marketing of products and services that incorporate such information without compensation or attribution to you.
9. NO WARRANTIES; LIMITATION OF LIABILITY
THE PLATFORM AND THE CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING THAT THE PLATFORM WILL OPERATE ERROR-FREE OR THAT THE PLATFORM, THEIR SERVERS, OR THE CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS: (I) WE SHALL NOT BE SUBJECT TO LIABILITY FOR ANY DELAYS OR INTERRUPTIONS OF THE PLATFORM FROM WHATEVER CAUSE, AND YOU AGREE THAT YOU USE THE CONTENT AND THE PLATFORM AT YOUR OWN RISK; (II) WE DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE; (III) WE SHALL NOT BE LIABLE FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE PLATFORM OR THE CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (IV) OUR LIABILITY FOR DIRECT DAMAGES WILL NOT EXCEED THE FEES PAID BY YOU UNDER THE APPLICABLE ORDER.
IF YOUR USE OF THE PLATFORM OR THE CONTENT RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, WE SHALL NOT BE RESPONSIBLE FOR THOSE COSTS UNLESS REQUIRED BY APPLICABLE LAWS.
THE PLATFORM MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS OR OMISSIONS. UNLESS REQUIRED BY APPLICABLE LAWS, WE ARE NOT RESPONSIBLE FOR ANY SUCH TYPOGRAPHICAL, TECHNICAL, OR PRICING ERRORS LISTED ON THE PLATFORM. THE PLATFORM MAY CONTAIN INFORMATION ON CERTAIN PRODUCTS AND SERVICES, NOT ALL OF WHICH ARE AVAILABLE IN EVERY LOCATION OR TO EVERY PERSON. A REFERENCE TO A PRODUCT OR SERVICE ON THE PLATFORM DOES NOT IMPLY THAT SUCH PRODUCT OR SERVICE IS OR WILL BE AVAILABLE IN YOUR LOCATION OR FOR YOU. WE RESERVE THE RIGHT TO MAKE CHANGES, CORRECTIONS, AND/OR IMPROVEMENTS TO THE PLATFORM AT ANY TIME WITHOUT NOTICE.
IF AND TO THE EXTENT YOU ARE USING OUR WEBSITE OR OUR PRODUCTS OR SERVICES FOR BUSINESS PURPOSES THEN YOU AGREE THAT THE CONSUMER GUARANTEES ACT 1993 (NZ) IS FULLY EXCLUDED FROM OUR RELATIONSHIP WITH YOU, AND FOR THE PURPOSES OF SECTION 5D OF THE FAIR TRADING ACT 1986 (NZ), SECTIONS 9, 12A AND 13 OF THAT ACT DO NOT APPLY, AND YOU AGREE THAT THIS IS FAIR AND REASONABLE IN THE CONTEXT OF THESE TERMS.
IF ANY APPLICABLE LAW STATES THAT A PARTICULAR TERM OF THIS AGREEMENT IS NOT PERMITTED TO BE INCLUDED IN THIS AGREEMENT THEN THAT PROVISION IS NOT INTENDED TO HAVE LEGAL EFFECT BETWEEN US, BUT OTHERWISE, ALL TERMS ARE INTENDED TO APPLY.
10. EXTERNAL SITES
The Platform may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.
11. REPRESENTATIONS; WARRANTIES; AND INDEMNIFICATION
(a) If you are an End User, you hereby represent, warrant, and covenant that:
- You own or have the necessary licenses, rights, consents, and permissions to all trademark, trade secret, copyright, or other proprietary, privacy, and publicity rights in and to your End User Content and any other works that you incorporate into your End User Content, and all the rights necessary to grant the licenses and permissions you grant hereunder;
- Use of your End User in the manners contemplated in this Agreement shall not violate or misappropriate the intellectual property, privacy, publicity, contractual, or other rights of any third party; and
- You shall not submit to the Platform any End User Content that violates our Community Guidelines set forth above or any other term of this Agreement.
(b) You agree to defend, indemnify, and hold us and our officers, directors, employees, agents, successors, licensees, and assigns harmless from and against any damages, liabilities, losses, expenses, claims, actions, and/or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from: (i) your breach of this Agreement; (ii) your access to, use or misuse of the Content or the Platform; and/or (iii) your violation of any third-party rights, including without limitation any copyright, trademark, property, publicity, or privacy right. We shall provide notice to you of any such claim, suit, or proceeding and shall assist you, at your expense, in defending any such claim, suit, or proceeding. We reserve the right to assume the exclusive defense and control (at your expense) of any matter that is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
12. COMPLIANCE WITH APPLICABLE LAWS
The Platform is based in New Zealand and possibly elsewhere. We make no claims concerning whether the Content may be downloaded, viewed, or be appropriate for use outside of New Zealand. If you access the Platform or the Content from outside of New Zealand, you do so at your own risk. Whether inside or outside of New Zealand, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
13. TERMINATION OF THE AGREEMENT
We reserve the right, in our sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the Platform, at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of the Platform at any time without prior notice or liability.
14. INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS
One Room respects your intellectual property rights and those of others, and attempts to comply with all relevant laws. We will review all claims of copyright infringement received and remove any Content or End User Content deemed to have been posted or distributed in violation of any such laws.
If you believe that your work has been copied on the Platform in a way that constitutes copyright infringement, please provide us with written notice of that, including (i) a description of the copyrighted work that has been infringed and the specific location on the Platform where such work is located; (ii) a description of the location of the original or an authorised copy of the copyrighted work; (iii) your address, telephone number and e-mail address; (iv) a statement by you that you have a good faith belief that the disputed use is not authorised by the copyright owner, its agent or the law; (v) a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorised to act on the copyright owner’s behalf; and (vi) an electronic or physical signature of the owner of the copyright or the person authorised to act on behalf of the owner of the copyright interest.
15. CONTROLLING LAW
This Agreement and any action related thereto will be governed by the laws of New Zealand. Both parties agree to submit to the non-exclusive jurisdiction of the New Zealand Courts.
YOU AGREE THAT, UNLESS CONTRARY TO ANY APPLICABLE LAW, ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE PLATFORM, THE CONTENT, ANY ORDER, OR THIS AGREEMENT MUST BE COMMENCED BY YOU WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. If any provision of this Agreement is found to be invalid by any court having competent jurisdiction or terminated in accordance with the Termination provision above, the invalidity or termination of such provision shall not affect the validity of the following provisions of this Agreement, which shall remain in full force and effect: “Fees and Payment for Orders ” (until you pay all fees and taxes due hereunder), “Intellectual Property,” “End User Content; Licenses,” “Communications with Us,” “No Warranties; Limitation of Liability,” “Representations; Warranties; and Indemnification,” “Termination of the Agreement,” “Controlling Law,” “Class Action Waiver,” and “Miscellaneous.”
Our failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by us and you in writing, this Agreement constitutes the entire Agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.