Tributes, Inc. Funeral Home Agreement


PLEASE CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS. BY CLICKING ON THE ACCEPTANCE BOXES, THE AUTHORIZED REPRESENTATIVE OF THE FUNERAL HOME HEREBY AGREES, ON BEHALF OF SUCH FUNERAL HOME, TO THE TERMS OF THIS FUNERAL HOME AGREEMENT (THIS “AGREEMENT”) AS OF THE DATE SUCH AUTHORIZED REPRESENTATIVE CLICKS ON THE ACCEPTANCE BOXES (THE “EFFECTIVE DATE”). THIS AGREEMENT SHALL BE BINDING ON FUNERAL HOME. IF THE FUNERAL HOME DOES NOT AGREE TO ALL OF THESE TERMS, THEN ITS AUTHORIZED REPRESENTATIVE SHOULD NOT CLICK ON THE ACCEPTANCE BOXES.

This Tributes, Inc. Funeral Home Agreement (this “Agreement”) is made by and between Tributes, Inc., a Delaware corporation (“Tributes”), the owner and operator of the website located at www.tributes.com (the “Tributes Website”) and the funeral home represented by the authorized representative accepting this Agreement (the “Funeral Home”).

  1. Tributes Policies. Funeral Home hereby agrees to abide by the Tributes Terms of Use (TOU), and acknowledges and agrees that, by acceptance of this Agreement, Funeral Home shall be deemed a “Registered User” within the meaning of the TOU.  Any content Funeral Home provides, or which is uploaded to the Tributes Website by users of the Funeral Home’s website hosted by Tributes, by posting directly to the Funeral Home Website, by posting to the Tributes Website or by sending to Tributes.com, is considered to be “User Content” under the TOU.  Notwithstanding the foregoing, Tributes reserves the right to change the TOU from time to time, and without notice, in order to accommodate the needs of its customers, business strategy, changing laws, and advancing technology. Notwithstanding the foregoing, in the event that the terms and conditions of this Agreement conflict with the terms of the TOU, this Agreement shall control.

  2. Tributes Products Tributes shall make available to Funeral Home products and services for the purpose of Funeral Home reselling such Products to customers of Funeral Home (the “Customers”).

  3. Hosting Services.

    1. Hosting Services. From time to time, Funeral Home may elect to utilize Tributes’ hosting services for hosting of obituary content on the Funeral Home website (the “Services”).
    2. License. Solely in connection with the provision of Services hereunder and subject to the terms and conditions of this Agreement, Tributes grants Customer a limited, revocable, non-exclusive, non-transferable right to access and use the Technology. “Technology” means all software, designs, formulas, processes, and programs of Tributes or its licensors used to provide the Services.
    3. Restriction. Funeral Home i) shall not directly or indirectly reverse engineer, disassemble or decompile any of the Services or Technology or any component thereof; ii) shall not reproduce or sub-license, re-sell or distribute all or any portion of the Services or Technology; iii) shall not copy, transfer, create derivative works of, or otherwise reproduce the Services or Technology for any purpose whatsoever, except as provided for herein; and iv) shall not use the Services or Technology in violation of the CAN-SPAM Act of 2003 or other applicable laws. Funeral Home acknowledges that Tributes may issue additional obligations and restrictions with respect to the Services and Technology i) as necessary to comply with applicable law and ii) as Tributes deems reasonable.
    4. Funeral Home Website Privacy Policy. In the event that Funeral Home elects to access the Services pursuant to this Agreement, Funeral Home shall adopt and implement a privacy policy that provides each of its users with Funeral Home’s data collection and use practices, and which shall provide that User-Generated Content uploaded to that portion of the Funeral Home website hosted by Tributes will be shared with Tributes. In particular, Funeral Home’s privacy policy shall include the following language: “User-Generated Content, including ideas, suggestions, opinions, comments, observations, text, data, photographs, video, music, sound, chat, messages, obituary-related content, tributes, files or other material provided to, or uploaded to, our website by you may be shared with Tributes, Inc., for use on its website located at Tributes.com, and in other affiliated or related Tributes ventures.” Upon notice and demand, Customer shall provide Tributes with a copy of Customer’s privacy policy.
    5. Funeral Home Terms of Use. In the event that Funeral Home elects to access the Services pursuant to this Agreement, Funeral Home shall adopt and implement Terms of Use governing the use by its users of the Funeral Home website (the “Funeral Home TOU”). The Funeral Home TOU shall provide that each Funeral Home website user uploading User-Generated Content to that portion of the Funeral Home Website hosted by Tributes grants Funeral Home a perpetual, fully-paid, transferable, sublicenseable, worldwide license to use such User-Generated Content for the purposes contemplated by this Agreement. In particular, the Funeral Home TOU shall include the following language: “You grant [Funeral Home] a perpetual, fully-paid, transferable, sublicenseable, worldwide license to use User-Generated Content, including ideas, suggestions, opinions, comments, observations, text, data, photographs, video, music, sound, chat, messages, obituary-related content, tributes, files or other material provided to, or uploaded to, the Funeral Home website by you, in connection with the [Funeral Home Website], and related ventures. Without limiting the foregoing, you agree and acknowledge that the aforementioned User-Generated Content may be shared with Tributes, Inc., for use on its website located at Tributes.com, and in other affiliated or related Tributes ventures.” In addition, the Funeral Home TOU shall provide language that prohibits Users from uploading any User-Generated Content that is obscene, pornographic, harmful to minors, defamatory, infringing upon the intellectual property rights of others, or which would impair or harm the Funeral Home website or the Tributes Website in any way. Upon notice and demand, Customer shall provide Tributes with a copy of the Funeral Home TOU.

  4. Payment. Funeral Home agrees to pay Tributes the applicable amount specified by Tributes at the point of purchase for each Product purchased pursuant to this Agreement. Depending upon setup selection in Funeral Home Central by Funeral Home, Billing will be processed immediately or at month-end upon purchasing any such Product via credit card. All sales are final and no refund will be provided. The Funeral Home is responsible for all billing, collection, and legal issues related to their Customers.

  5. Term. The initial term of this Agreement shall be for one year (the “Initial Term”), unless otherwise agreed by both parties in writing, and shall automatically renew for additional one-year terms (each an “Additional Term,” and together with the Initial Term, the “Term”) unless notice of intent not to renew is given 30 days prior to the expiration of the Initial Term or any applicable Additional Term.

  6. Termination for Cause. Tributes shall have the right to terminate this Agreement immediately in the event of any material breach of this Agreement, or the TOU, by Funeral Home. Sections 1, 3.c., 6, 8, 9, 10 and 11 shall survive termination.

  7. Ownership and License of Tributes Trademarks.

    1. Ownership. Tributes is the owner of certain trademarks, service marks and logos, including “Tributes.com” (the “Tributes Marks”). Subject to paragraph 7b. hereof, all right, title and interest in the Tributes Marks shall remain with Tributes and all good will associated with the Tributes Marks shall remain with and inure solely to the benefit of Tributes.

    2. License. During the Term, Tributes grants to Funeral Home the worldwide, non-exclusive, non-transferable, non-sublicensable and limited license to use and reproduce the Tributes Marks solely for the purposes of identifying the Products in connection with marketing and reselling such Products to Customers.  Funeral Home agrees to provide notice in appropriate places on all materials using the Tributes Marks that such Marks are the trademarks of Tributes, and to include the symbol ™ or ® as appropriate.  Funeral Home agrees not to take any action inconsistent with Tributes’ ownership of the Tributes Marks and further agrees not to adopt, use or attempt to register any trademarks or trade names that are confusingly similar to the Tributes Marks or in such a way as to create combination marks with the Tributes Marks. At Tributes’ request, Funeral Home will modify or discontinue, in whole or in part, any use of the Tributes Marks if, in Tributes’ sole discretion, Funeral Home’s use of the Tributes Marks does not comply with Tributes’ then-current trademark usage policy and guidelines.

  8. Disclaimer of Warranty. THE PRODUCTS AND SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, ALL EXPRESS AND IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT ARE DISCLAIMED, EXCEPT TO THE EXTENT THESE DISCLAIMERS ARE HELD TO BE LEGALLY INVALID.

  9. Indemnification; Procedure.

    1. Indemnification. In addition to any indemnification obligations Funeral Home has under the TOU, Funeral Home agrees to indemnify, defend and hold harmless Tributes from and against any third party claim, action, suit, or proceeding arising from (i) any breach of its obligations under this Agreement or the TOU, and (ii) its use of Tributes Marks that is inconsistent with this Agreement. Such indemnity shall apply to all losses, damages, liabilities, and reasonable attorney’s fees and costs incurred by the party receiving the benefit of this paragraph

    2. Procedure. Funeral Home shall not have liability under this Section 9 unless Tributes (a) promptly notifies Funeral Home in writing of the relevant claim, (b) gives Funeral Home full and complete authority, information and assistance to defend such claim and (c) gives Funeral Home sole control of the defense of such claim and all negotiations for the compromise or settlement thereof (provided such settlement or compromise does not require Tributes to pay any money, take any action, or admit any wrongdoing by Tributes).

  10. Limitations on Liability. Except for Funeral Home’s indemnity obligations in the above section, in no event shall either party be liable for any special, incidental or consequential damages, or for interrupted communications, lost data or lost profits, arising out of or in connection with this Agreement.

  11. Miscellaneous Provisions.

    1. This Agreement will be governed by the laws of The Commonwealth of Massachusetts without regard to its principles of conflicts of law which might require the application of the laws of any other jurisdiction. Jurisdiction and venue of any actions or proceedings to construe, interpret, enforce or to recover a remedy for the breach of this Agreement shall be in the State and Federal Courts located in The Commonwealth of Massachusetts. The prevailing party in any action will be entitled to reasonable attorney’s fees and costs.

    2. Unless otherwise stated in this Agreement, the parties may not assign this Agreement or any rights or obligations under this Agreement without the prior written consent of the other parties hereto, provided that Tributes may assign this Agreement in whole or in part without consent of Funeral Home to any entity controlling, controlled by or under common control with Tributes, or to any entity that acquires Tributes by purchase of stock or by merger or otherwise, or by obtaining substantially all of Tributes’ assets.

    3. If any provision of this Agreement is held to be unenforceable for any reason, the remaining provisions shall remain in full force and effect.

    4. The waiver of any breach of this Agreement will not operate as a waiver of any other or subsequent breach.

    5. This Agreement, including the TOU, constitutes the entire understanding and agreement between Tributes and Funeral Home. This Agreement may only be amended in writing acknowledged by both parties

    6. The parties to this Agreement are independent contractors, and no agency, partnership, joint venture, or employer-employee relationship is intended or created. Neither party shall have the power to obligate or bind the other.

    7. Any notices required or permitted hereunder may be given by electronic mail or fax if receipt is confirmed by the recipient, or if the notice is also sent by first class mail. Notice will be deemed given on the date the electronic mail is sent.

    8. Funeral Home agrees that Tributes may include the name, logo, and success stories of Funeral Home on Tributes’ website, press releases, promotional and sales literature, and advertising materials. In addition, Tributes may prominently display “For National Obituaries, go to Tributes.com” or a similar hyperlink to Tributes’ web site home page on the Funeral Home website hosted by Tributes hereunder.

    9. This Agreement shall inure to the benefit of and shall be binding upon the parties hereto and their respective successors and permitted assigns.