Last revised: December 1, 2012
1. Basic Terms
Tributopia and its affiliates and sublicensees (“Producer”, “We”, or “Us”) offers virtual memorial services (the “Service”) through its website currently located at tributopia.com, which exact URL may change from time to time (the “Site”). If applicable, you may be required to set up an account to access portions of Site or Service. You are responsible for your use of the Site and Service, for any content you post to the Site or Service, and for any consequences thereof. Any content you submit, post, or display, including without limitation any photo or video content (the “Content”) will be able to be viewed by other users of the Site and Service and through third-party services and websites. You should only provide Content that you are comfortable sharing with others under the terms of this Agreement.
2. Your Rights
LICENSE: On the condition that you comply with all your obligations under this Agreement, Producer grants you a limited, non-exclusive, license to access and use the Site and Service for your own personal, non-commercial purposes. This includes the right to view content available on the Site. This license is personal to you and may not be assigned or sublicensed to anyone else. Any other use of the Site or Service contrary to our mission and purpose is strictly prohibited and a violation of this Agreement. You are solely responsible for the activity that occurs on your account and for the Content you upload and, if applicable, you must keep your account password secure. We reserve all rights not expressly granted in this Agreement, including, without limitation, title, ownership, intellectual property rights, and all other rights and interest in the Site and Service and all related items, including any and all copies made of the Site.
COMMERCIAL USE FORBIDDEN: You may not use the Site or Service for commercial purposes.
OTHER RESTRICTIONS: Except as expressly permitted by Producer in writing, you will not reproduce, retransmit, disseminate, publish, broadcast, circulate, redistribute, sell, commercially exploit, create derivative works from, decompile, reverse engineer, or disassemble the Site or Service or any works posted to it other than your own works, nor use any works posted on the Service for any unlawful purpose. Nor will you take any measures to interfere with or damage the Site or Service. All rights not expressly granted by Producer are reserved.
3. Age Requirements
MINORS RESTRICTED: You must be at least 13 years old to use the Site and Service. If you are at least 13, but are still a minor (this depends on where you live), you must have your parent or legal guardian’s permission to use the Site and Service. Please have him or her read this Agreement with you.
NOTICE TO PARENTS AND GUARDIANS: By granting your child permission to use the Site and Service, you agree to the terms of this Agreement on behalf of your child. You are responsible for monitoring and supervising your child’s use of the Site and Service. Parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. If your child is using the Site or Service and is either under 13 or does not have your permission, please contact Us immediately so that We can disable his or her access. If you have questions about whether the Site or Service is appropriate for your child, contact Us at email@example.com.
WARNING: Even if you are old enough to use the Site and Service and/or have your parent’s or guardian’s permission, some of the content available within the Site or Service may not be appropriate for you. Some content may contain “R-rated” material, nudity, profanity, and mature subject matter. If you are under 18, do not view such content.
4. Your Obligations
In using the Site or Service, you must behave in a civil and respectful manner at all times. Further, you agree you will not: (1) act in a deceptive manner by, among other things, impersonating any person; (2) harass or stalk any other person; (3) harm or exploit minors; (4) distribute “spam”; (5) collect information about others; or (6) advertise or solicit others to purchase any product or service within the Site. Producer has the right, but not the obligation, to monitor all conduct on and Content submitted to the Site or Service and to remove any Content for any reason, including because the Content is deemed to be inappropriate or because third-parties have complained regarding the Content.
You must not copy or transmit any content on the Site or Service (or any coding within the Site or Service) without the express, written permission of Producer. The Site and Service remain the exclusive property of the Producer.
You agree to notify Producer immediately at firstname.lastname@example.org if you believe that anything on the Site or Service violates any of your rights.
5. Licenses Granted by You
As between you and Producer, you own the Content that you submit to the Site/Service.
LICENSE TO Producer: By submitting Content to the Site or Service, you grant Producer and its sublicensees and affiliates a limited, worldwide, non-exclusive, royalty-free license and right to use, copy, transmit, publish, disseminate, distribute, publicly perform and display (through all media now known or hereafter created), and make derivative works from your Content. Without limiting the generality of the foregoing, Producer shall have the right to: (i) display the Content within the Site or Service; (ii) display the Content on third-party websites and applications through a content embed or Producer’s API; (iii) allow other users to play, download, and embed on third-party websites the Content; (iii) use the Content to promote Producer, Producer’s funders and partners, the Site, or Service; and (iv) archive or preserve the Content for disputes, legal proceedings, or investigations. Producer and its affiliates and sublicensees will have the right to use your suggestions without any compensation to you.
LICENSE TO OTHER USERS: You further grant all users of the Site or Service permission to view your Content for their personal, non-commercial purposes. This includes the right to use, copy, display, and make derivative works from the Content solely to the extent necessary to view the Content. The foregoing licenses are in addition to any license you may decide to grant (e.g., a creative commons license).
DURATION OF LICENSES: The above licenses will continue unless and until you remove your Content from the Service and Site, in which case the licenses will terminate within a commercially reasonable period of time. Notwithstanding the foregoing, the license for promotion will continue until you notify Producer in writing that you wish to terminate such license. Also notwithstanding the foregoing the license for legal archival/preservation purposes will continue indefinitely. Producer may retain the public server copies of your Content that has been removed or deleted. Please note that removed Content may be cached in search engine indices after removal and that Producer has no control over such caching.
C. NO OBLIGATION TO USE CONTENT
Producer is under no obligation to use any Content. Producer may remove Content from the Site or Service at any time and for any reason.
6. Content Restrictions
You agree not to upload, post, or otherwise submit any Content that is (or may reasonably be found or construed to be):
• Obscene, indecent, sexually explicit, or pornographic;
• Hate speech, harassment, threats, or other personal attacks against anyone or any group of persons;
• Libel or defamation;
• In violation of any law or any third-party rights, including trademark, copyright, and privacy rights;
• Exploitative of minors;
• Depictive of any unlawful acts or extreme violence;
• Depictive of animal cruelty or extreme violence towards animals;
• Commercial prompts or spam, off-topic posts, commercial solicitations, promotion or advertising, including any promotions of fraudulent schemes, multi-level marketing schemes, get-rich-quick schemes, online gaming or any other type of gambling, cash gifting, work-from-home businesses, or any other dubious money-making ventures;
• Indicating or implying that Producer supports a specific viewpoint. Information about ways Site or Service visitors might take action around a particular issue or topic must have appropriate context and labeling. All content must pass a perception test to ensure that visitors to the Site/Service do not perceive that the Website’s editorial integrity has been compromised by a particular agenda or by association with an outside party.
All Content you submit must also comply with our Uploading Guidelines, which are incorporated into this Agreement.
7. Your Representations and Warranties
You represent and warrant that you: (1) are not currently restricted from using the Site or Services, or not otherwise prohibited from having an account with us; (2) have full power and authority to enter into this Agreement and doing so will not violate any other agreement to which you are a party; (3) will not violate any of our rights or the rights of other Site/Service users, including intellectual property rights such as copyright or trademark rights; (4) agree to provide at your cost all equipment, software, and internet access necessary to use the Site or Service; (5) you have the right to submit the Content to Us and grant the licenses set forth above; (6) We do not and will not need to obtain licenses from any third party or pay royalties to any third party in connection with your video and non-video Content for any reason; (7) the Content does not infringe any third party’s rights, including intellectual property rights and privacy rights; and (8) the Content complies with all terms of this Agreement and all applicable laws. In addition, you affirm that you are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement. In any case, you affirm that you are over the age of 13, as the Service/Site is not intended for children under 13. If you are under 13 years of age, then please do not use the Site or Service.
You will indemnify, defend, and hold harmless Producer and its affiliates, directors, officers, employees, funders, contractors, sublicensees, and agents, for all damages, losses and costs (including, but not limited to, reasonable attorneys’ fees and costs) related to all third-party claims, charges, and investigations that: (1) arise from your activities on the Site or Service; (2) assert a violation by you of any term of this Agreement, including any representations and warranties herein; (3) arise from your failure to comply with this Agreement or any representations or warranties herein; or (4) assert that any Content you submitted violates any law or infringes any third-party right, including any intellectual property or privacy right. This defense and indemnification obligation will survive the termination of this Agreement and will exist in perpetuity, regardless of whether you later cease using the Site or Service or remove Content from the Site/Service.
You acknowledge, consent, and agree that We may access, preserve, and disclose your registration and any other information you provide if required to do so by law or in a good-faith belief that such access preservation or disclosure is reasonably necessary in our opinion to: (1) comply with legal process, including, but not limited to, civil and criminal subpoenas, court orders or other compulsory disclosures; (2) enforce this Agreement; (3) respond to claims of a violation of the rights of third parties, whether or not the third party is a Site user, individual, or government agency; (4) respond to customer service inquiries; or (5) protect our rights, property, or personal safety for either our Site users or the public.
Please note that ideas you post and information you share may be seen and used by other Site/Service users, and We cannot guarantee that other Site/Service users will not use the ideas and information that you share on the Site or Service. Therefore, if you have an idea or information that you would like to keep confidential and/or don’t want others to use, or that is subject to third-party rights that may be infringed by your sharing it, do not post it on the Site or Service. WE ARE NOT RESPONSIBLE FOR A USER’S MISUSE OR MISAPPROPRIATION OF ANY CONTENT OR INFORMATION YOU POST ON THE SITE OR SERVICE.
REGISTRATION: To fully use the Site or Service, you may be required to register as a member by providing a user name, password, and valid email address. You must provide complete and accurate registration information to Producer and notify Us if your information changes. If you are a business, government, or non-profit entity, the person whose email address is associated with the account must have the authority to bind the entity to this Agreement.
USER NAME: We encourage you to use your real name. If you are a business, government, or non-profit entity, you must use the actual name of your organization. When creating your account, you must provide accurate and complete information. You may not use someone else’s name, a name that violates any third party right, or a name that is obscene or otherwise objectionable.
ACCOUNT SECURITY: You are responsible for all activity that occurs under your account, including any activity by unauthorized users. You must not allow others to use your account. You must safeguard the confidentiality of your password. If you are using a computer that others have access to, you must log out of your account after using the Producer Service. If you become aware of an unauthorized access to your account, you must change your password and notify Us immediately at email@example.com.
11. Term and Termination; Account Deletion
TERM: This Agreement begins on the date you first use the Site or Service and continues as long as you use the Site or Service or have an account with Us, except as otherwise terminated as provided in this Agreement.
MUTUAL RIGHTS OF TERMINATION: You may terminate this Agreement, for any or no reason, at any time, with notice to Producer pursuant to Agreement section [**17]. This notice will be effective upon Producer processing your notice. Producer may terminate the Agreement and your account for any reason or no reason, at any time, with or without notice. Such termination will be effective immediately or as may be specified in the notice. Termination of your account may also include disabling your access to the Site or Service.
TERMINATION FOR BREACH: Producer may suspend, disable, terminate or delete your account (or any part thereof) or block or remove any Content you submitted for any reason, including if Producer determines that you have violated any provision of this Agreement or that your conduct or Content would tend to damage Producer’s reputation and goodwill or for any other behavior that we, in our sole discretion, deem contrary to the purpose of the Site or Services. If Producer deletes your account and/or terminates this Agreement, you may not use or re-register for the Site or Service. Producer may block your email address and Internet protocol address to prevent further use or registration.
EFFECT OF TERMINATION/ACCOUNT DELETION: Upon termination, all licenses granted by Producer will terminate. All sections of this Agreement that indicate that they are perpetual, indicate they survive termination, or that indicate that they are irrevocable, all representations and warranties, and all indemnification provisions herein will survive termination. In the event of account deletion or termination, Content that you submitted may no longer be available. Producer is not responsible for the loss of such Content.
12. Third-Party Copyrights and Other Rights
Producer respects the intellectual property rights of others. If you believe that your copyright has been infringed, please send Us a notice as set forth in our Copyright and DMCA Policy, which is incorporated into this Agreement. For other intellectual property claims, please send Us a notice at firstname.lastname@example.org.
Producer reserves the right to modify the Site and Service. You are responsible for providing your own access (e.g., computer, mobile device, Internet connection, etc.) to the Producer Service. Producer has no obligation to screen or monitor any content and does not guarantee that any content available on the Site or Service complies with this Agreement or is suitable for all users.
Producer provides the Site and Service on an “as is” and “as available” basis. You therefore use the Site and Service at your own risk. Producer expressly disclaims any and all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose, non-infringement, and any other warranty that might arise under any law. Without limiting the foregoing, Producer makes no representations or warranties: (1) that the Site or Service will be permitted in your jurisdiction; (2) that the Site or Service will be uninterrupted or error-free; (3) concerning any content submitted by any member; (4) concerning any third-party’s use of content that you submit; (5) that any Content you submit will be made available on the Site or Service or will be stored by Producer; (6) that the Site or Service will meet your business or professional needs; (7) that Site or Service will continue or that any Site/Service feature will continue ; or (8) concerning sites and resources outside of the Site or Service, even if linked to from the Site or Service. To the extent any disclaimer or limitation of liability does not apply, all applicable express, implied, and statutory warranties will be limited in duration to a period of thirty (30) days after the date on which you first used the Site or Service, and no warranties shall apply after such period.
SOME COUNTRIES AND JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU.
DO NOT RELY ON THE SITE OR SERVICE OR ANY INFORMATION THEREIN, OR ITS CONTINUATION. WE PROVIDE THE PLATFORM FOR THE SITE AND SERVICE AND ALL INFORMATION AND SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. Producer DOES NOT CONTROL OR VET USER-GENERATED CONTENT FOR ACCURACY. WE DO NOT PROVIDE ANY EXPRESS WARRANTIES OR REPRESENTATIONS.
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, WE DISCLAIM ANY AND ALL IMPLIED WARRANTIES AND REPRESENTATIONS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY OF DATA, AND NONINFRINGEMENT. IF YOU ARE DISSATISFIED OR HARMED BY THE SITE OR SERVICE OR ANYTHING RELATED TO THE SITE OR SERVICE. YOU MAY CLOSE YOUR ACCOUNT AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION  (“TERMINATION”) AND SUCH TERMINATION WILL BE YOUR SOLE AND EXCLUSIVE REMEDY.
PRODUCER IS NOT RESPONSIBLE, AND MAKES NO REPRESENTATIONS OR WARRANTIES FOR THE DELIVERY OF ANY MESSAGES SENT THROUGH THE PRODUCER SERVICE TO ANYONE. IN ADDITION, WE NEITHER WARRANT NOR REPRESENT THAT YOUR USE OF THE SITE/SERVICE WILL NOT INFRINGE THE RIGHTS OF THIRD PARTIES. ANY MATERIAL, SERVICE, OR TECHNOLOGY DESCRIBED OR USED ON THE SITE/SERVICE MAY BE SUBJECT TO INTELLECTUAL PROPERTY RIGHTS OWNED BY THIRD PARTIES WHO HAVE LICENSED SUCH MATERIAL, SERVICE, OR TECHNOLOGY TO US.
PRODUCER DOES NOT HAVE ANY OBLIGATION TO VERIFY THE IDENTITY OF THE PERSONS SUBSCRIBING TO ITS SITE OR SERVICE, NOR DOES IT HAVE ANY OBLIGATION TO MONITOR THE USE OF ITS SITE OR SERVICE BY OTHER USERS OF THE COMMUNITY; THEREFORE, PRODUCER DISCLAIMS ALL LIABILITY FOR IDENTITY THEFT OR ANY OTHER MISUSE OF YOUR IDENTITY OR INFORMATION.
PRODUCER DOES NOT GUARANTEE THAT THE SITE OR SERVICE IT PROVIDES WILL FUNCTION WITHOUT INTERRUPTION OR ERRORS IN FUNCTIONING. IN PARTICULAR, THE OPERATION OF THE SITE OR SERVICE MAY BE INTERRUPTED DUE TO MAINTENANCE, UPDATES, OR SYSTEM OR NETWORK FAILURES. PRODUCER DISCLAIMS ALL LIABILITY FOR DAMAGES CAUSED BY ANY SUCH INTERRUPTION OR ERRORS IN FUNCTIONING. FURTHERMORE, PRODUCER DISCLAIMS ALL LIABILITY FOR ANY MALFUNCTIONING, IMPOSSIBILITY OF ACCESS, OR POOR USE CONDITIONS OF THE SITE OR SERVICE DUE TO INAPPROPRIATE EQUIPMENT, DISTURBANCES RELATED TO INTERNET SERVICE PROVIDERS, TO THE SATURATION OF THE INTERNET NETWORK, AND FOR ANY OTHER REASON.
14. LIMITATION OF LIABILITY.
SOME COUNTRIES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU.
YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR DOWNLOADING AND/OR USE OF THE SITE OR SERVICE, ANY CONTENT THEREON, OR ANY OTHER MATERIAL (INCLUDING WITHOUT LIMITATION SOFTWARE) ACCESSED THROUGH OR OBTAINED BY MEANS OF THE SITE OR SERVICE. Neither Producer nor any of our subsidiaries, funders, affiliated companies, employees, officers, contractors, shareholders, or directors (the “Affiliates”) will be cumulatively (or otherwise) liable for any special, incidental, indirect, punitive or consequential damages or loss of use, profit, revenue or data to you or any third person arising from your use of the Site or Service, any platform applications or any of the content or other materials on, accessed through or downloaded from the Site or Service. The total liability of Producer and its Affiliates is limited to the amount, if any, actually paid by you for access and use of the Site or Service. This limitation of liability is part of the basis of the bargain between the parties and without it the terms would be different. This limitation of liability will:
1. Apply regardless of whether (1) you base your claim on contract, tort, statute or any other legal theory, (2) We knew or should have known about the possibility of such damages, or (3) the limited remedies provided in this section fail of their essential purpose; and
2. Not apply to any damage that the Site or Service may cause you intentionally or knowingly in violation of this Agreement or applicable law, or as otherwise mandated by applicable law that cannot be disclaimed from in this Agreement.
15. Compliance Notice Pursuant to 18 U.S.C. § 2257
All pictures, graphics, videos, and other visual media displayed by Producer on the Site or Service are exempt from 18 U.S.C. § 2257 and 28 C.F.R. 75 because they do not consist of depictions of conduct as specifically listed in 18 U.S.C. § 2256 (2) (A) – (D), but are merely, at most, depictions of non-sexually explicit nudity, or are depictions of simulated sexual conduct, or are otherwise exempt because the visual depictions were created prior to November 1, 1990. Producer is not the primary producer of any Content contained in the Site or Service.
16. Export Control
Your use of the Site and Service, including our software, is subject to export and re-export control laws and regulations, including the Export Administration Regulations maintained by the United States Department of Commerce and sanctions programs maintained by the Treasury Department’s Office of Foreign Assets Control. You shall not — directly or indirectly — sell, export, re-export, transfer, divert, or otherwise dispose of any software or service to any end-user without obtaining the required authorizations from the appropriate government authorities. You also warrant that you are not prohibited from receiving US origin products, including services or software.
17. General Provisions
GOVERNING LAW: This Agreement shall be governed by the laws of the State of California, United States of America, without regard to principles of conflicts of law. The Uniform Commercial Code, the Uniform Computer Information Transaction Act, and the United Nations Convention of Controls for International Sale of Goods will not apply.
DISPUTES: Any action arising out of or relating to this Agreement or your use of the Site or Service must be commenced in the state or federal courts located in San Francisco, CA, United States of America (and you consent to the jurisdiction of those courts). In any such action, Producer and you irrevocably waive any right to a trial by jury.
INTERPRETATION; SEVERABILITY; WAIVER; REMEDIES: Headings are for convenience only and may not be used to construe the terms of this Agreement. If any term of this Agreement is found invalid or unenforceable by any court of competent jurisdiction, that term will be severed from this Agreement. No failure or delays by Producer in exercising any right hereunder will waive any further exercise of that right. Producer’s rights and remedies hereunder are cumulative and not exclusive.
SUCCESSORS; ASSIGNMENT: This Agreement is binding upon and shall inure to the benefit of both parties and their respective successors, heirs, executors, administrators, personal representatives, and permitted assigns. We may freely assign or delegate all rights and obligations under the Agreement, fully or partially without notice to you. You may not assign this Agreement without Producer’s prior written consent.
NOTICES: You consent to receive all communications including notices, agreements, disclosures, or other information from Producer electronically. Producer may provide all such communications by email or by posting them on the Site or Service. For support-related inquiries, as well as notices of a legal nature, you may send an email to email@example.com or contact Us by mail.
Nothing herein shall limit Producer’s right to object to subpoenas, claims, or other demands.
MODIFICATION: This Agreement may not be modified except by a revised “Terms of Service” posted by Producer on the Site or Service or a written amendment signed by an authorized representative of Producer. A revised Terms of Service will be effective as of the date it is posted on the Site or Service.
SEVERABILITY: If any provision of this Agreement is found by a court of competent jurisdiction or arbitrator to be illegal, void, or unenforceable, the unenforceable provision will be modified so as to render it enforceable and effective to the maximum extent possible in order to effect the intention of the provision.; and if a court or arbitrator finds the modified provision invalid, illegal, void or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not be affected in any way.
ENTIRE AGREEMENT: This Agreement incorporates the following documents by reference:
This Agreement constitutes the entire understanding between Producer and you concerning the subject matter hereof and supersedes all prior agreements and understandings regarding the same.