IMPORTANT: READ THIS LICENSE AGREEMENT (HEREINAFTER “AGREEMENT”). IF YOU DO NOT
AGREE TO THIS AGREEMENT, DO NOT CLICK THE CHECK BOX INDICATING THAT YOU AGREE TO
THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY CLICKING ON THE CHECK BOX, YOU AGREE
TO BE BOUND BY THIS AGREEMENT (“ACCEPTANCE”). IF YOU DO NOT AGREE TO THIS AGREEMENT,
THEN YOU MAY NOT USE THE MeM PRODUCTS.
Effective upon the date of Acceptance (the “Effective Date”), this Agreement is
made between Making Everlasting Memories, LLC. (“MeM”), a Delaware limited liability
company, and you, the Customer. MeM and Customer agree as follows:
1. INTRODUCTION
1.1 Making everlasting Memories (“MeM”) is a progressive memory
recording and publishing company which, through its products and services, publishes
memories through stories and images to the Internet and/or other current technology.
1.2 Customer is interested obtaining the right to use certain
MeM Products to create and publish material as further set forth herein. Accordingly,
for good and valuable consideration, the adequacy of which is hereby acknowledged,
the parties agree as follows:
2. DEFINITIONS
2.1 “Customer Content” shall mean all data, text, photographs,
graphics, messages, music, or other materials including, without limitation, the
selection and arrangement of the same that Customer uploads, posts, transmits, or
otherwise makes available on the MeM website and/or incorporates into Customer Publications.
2.2 “Customer Publication” shall mean a work that is fixed in
tangible form created by a Customer using MeM Products based in whole or in part
on Customer Content.
2.3 “Intellectual Property” shall mean any and all patents,
trade secrets, copyrights, moral rights, know-how, inventions, processes, algorithms
that relate to the MeM Products.
2.4 “Trademarks” shall include the trademarks and service marks
of MeM, whether or not registered, including, without limitation, the following:
Making Everlasting Memories, MeM, Everlasting Memorial, Honneur et Mémoires, MeM
Announcement, the MeM logo, Lifelong Memories, Family Heritage Registry, Moving
Memories, Slap-N-Scan, Send My Best, Growing Memories, and all other MeM logos,
product names, and service names that are trademarks and/or service marks of Making
Everlasting Memories, L.L.C.
2.5 “MeM Products” refers to software and any other content
and materials made available to Customer (via the Internet or by download) by or
through MeM for use in creating Customer Publication(s) (including without limitation
applets, server applications, images, photographs, animations, video, audio, music
and text, and documentation, whether hardcopy or electronic).
3. OWNERSHIP; LICENSE GRANT; LIMITATIONS ON USE
3.3 Limitations on Use.
3.3.1 Customer may not remove, alter, cover or distort any
copyright, trademark or other proprietary rights notices on the MeM Products.
3.3.2 Customer may not reverse engineer, reverse assemble,
decompile, or disassemble the MeM Products or any part thereof. Except as otherwise
permitted in this Agreement, Customer may not copy, modify, distribute, translate,
publish, display, disclose, rent, lease, modify, loan, distribute, or create derivative
works based on MeM Products or any part thereof.
4. CUSTOMER RESPONSIBILITIES
4.3 Customer further agrees that Customer will not use MeM Products
to:
4.3.1 deliver content that is or may be deemed abusive, defamatory,
hateful, obscene, prejudiced, threatening, vulgar, harmful, harassing, or otherwise
objectionable;
4.3.2 deliver content that contains software viruses or any
other code, files or programs designed to damage or disrupt any software, hardware
or telecommunications equipment; or
4.3.3 violate any applicable law or regulations.
4.4 Customer shall not collect (by any means including, without
limitation, spider, robot, or manual collection) store data about other MeM customers.
4.5 Customer shall not use any device, software or routine that
interferes, or attempts to interfere, with the proper working of the MeM websites
or MeM Products. Customer shall not circumvent a technological measure that effectively
controls, or is intended to control, access an MeM website or its content or MeM
Products.
4.6 Customer acknowledges and understands that MeM does not
pre-screen Customer Content, but that MeM shall have the right, its sole discretion,
to reject, remove, and/or take-down Customer Publication, in whole or in part, including,
without limitation, any Customer Content.
4.7 Customer agrees to assume sole responsibility for the security
of password(s) issued to each Customer. Unless expressly approved in writing by
MeM in advance, a password is valid for use online in the country in which it is
issued. Passwords are subject to cancellation or suspension by MeM at any time,
including upon nonuse for such period as MeM may determine, and reissuance or reactivation
of such passwords may be subject to MeM standard charges. If Customer believes that
any password is being used by someone other than an authorized Customer, Customer
must notify MeM in writing immediately.
4.8 Although MeM shall periodically backup Customer Content
and Customer Publications, Customer acknowledges and agrees that MeM shall not be
responsible for lost or corrupted Customer Content and/or Customer Publications.
4.9 Customer acknowledges and agrees that MeM may establish
general practices and limits concerning use of MeM Products, including without limitation
the number of days that Customer Publications and/or Customer Content will be retained,
the size of any message that may be posted, the disk space that will be allotted
on MeM's servers on Customer’s behalf, and the duration of time which Customer may
access the MeM Products and/or Customer Publication. Customer shall not take any
action that imposes in MeM’s sole discretion an unreasonable or disproportionately
large load on MeM’s infrastructure.
4.10 Customer shall provide MeM with accurate, complete, and
updated information required by MeM, including Customer’s name, address, telephone
number, e-mail address and, as applicable, payment data.
5. MeM RESPONSIBILITIES
5.1 If duration is associated with the MeM Products licensed
hereunder, then MeM shall display the Customer Publication for the duration associated
with the MeM Products licensed by Customer unless this Agreement is sooner terminated
pursuant to Section 11.2. If a duration is not associated with the MeM Products
licensed hereunder, the MeM shall display the Customer Publication until this Agreement
is terminated pursuant to Section 11.2
5.2 If Customer notifies MeM of a material defect in the Customer
Publication pursuant to Section 4.2, then MeM will use reasonable efforts to correct
the material defect. MeM shall not be responsible for correcting (i.) non-material
defects in the Customer Publication; and (ii.) defects which MeM determines, in
its sole discretion, are not caused by MeM Products.
6. RIGHT TO USE CUSTOMER MATERIALS
6.2 Customer acknowledges and agrees that the license granted
in Section 6.1 above shall include the right to (i.) publish and sell Customer Publications
including any derivatives thereof in any and all formats now in existence or which
may come into existence in the future including, without limitation, in print format
and on DVD; and (ii.) use the Customer Publication in MeM’s marketing materials.
This paragraph shall not be construed to limit the license grant in Section 6.1
in any way.
7. FEES
7.1 Fees. In consideration for the license granted by
MeM hereunder, Customer shall pay MeM the fees, if applicable, set forth on the
MeM website.
7.2 Fee Changes. MeM reserves the right to increase fees,
or to institute new fees at any time, upon reasonable notice posted in advance on
the MeM website.
8.1 Customer represents and warrants to MeM as follows:
8.1.1 Customer has the full power and authority to enter into
this Agreement and to grant the rights granted under this Agreement;
8.1.2 Customer shall comply with all applicable laws and regulations
applicable to Customer’s activities in furtherance of this Agreement; and
8.1.3 Customer owns, or has received written permission, to
use all Customer Content submitted to MeM in accordance with this Agreement.
8.2 Customer shall indemnify and hold MeM harmless from and
against all costs and expenses (including reasonable attorney’s fees) related to
Customer Content and/or any breach of any representation or warranty, express or
implied, contained herein.
9.1.1 MeM has the full power and authority to enter into this
Agreement and to grant the rights granted under this Agreement; and
9.1.2 MeM shall comply with all applicable laws and regulations
applicable to MeM’s activities in furtherance of this Agreement.
9.2 EXCEPT FOR THE LIMITED WARRANTY IN SECTION 9.1 ABOVE, MeM
PRODUCTS AND THE MeM WEBSITE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS.
MeM EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR
PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, AND INFORMATIONAL CONTENT.
11. TERM; TERMINATION
11.1 Term. This term of this Agreement shall commence
upon the Effective Date and shall continue in effect until the Agreement is terminated
pursuant to Section 11.2.
11.2.1 If a duration is associated with the MeM Products
licensed hereunder, then this Agreement shall automatically terminate thirty (30)
days after expiration of the duration associated with the MeM Products unless subsequent
MeM Products are licensed prior to such time under terms mutually agreed to by the
parties.
11.2.2 Either party may terminate
this Agreement at any time by providing written notice to the other party.
11.3.1 Upon expiration or termination of this Agreement,
Customer shall cease use of the MeM Products and, within a reasonable time, MeM
shall remove the Customer Publication from the MeM websites. Sections 3.1, 4.1,
8, 9, 10, 11.3, 12 shall survive any expiration or termination of this Agreement.
11.3.2 No refund of fees will be made to Customer when (i.)
this Agreement is terminated by Customer pursuant to Section 11.2.2; or (ii.) this
Agreement is terminated by MeM pursuant to Section 11.2.2 and the MeM Products licensed
by Customer had an associated duration of less than one (1) year. Notwithstanding
the foregoing, if this Agreement is terminated by MeM pursuant to 11.2.2 above within
three (3) years of the Effective Date and the MeM Products licensed by Customer
had an associated duration of greater than one (1) year, then Customer shall be
entitled to receive a refund of any fees previously paid by Customer under the Agreement
pro-rated based upon a three (3) year period beginning on the Effective Date.
12.1 Assignment. This Agreement may not be assigned
by Customer without the prior written consent of MeM. MeM may assign this Agreement
at any time without Customer’s prior consent. This Agreement shall be binding upon
the successors, permitted assigns, heirs and executors of the parties hereto.
12.3 Unenforceability: It is intended that this Agreement
shall not violate any applicable law. If, at any time or for any reason, any provision
becomes unenforceable or invalid, such provisions shall be amended to bring them
into legal compliance and to preserve to the maximum extent possible the intent
of the parties, and the remaining provisions shall remain unaffected and continue
with the same effect as if such unenforceable or invalid provision had not have
been inserted herein.
12.4 No Waiver: Failure of either party to exercise
its rights under this Agreement shall not be construed as a waiver of that party's
rights, including without limitation the right to seek remedies arising from past,
present or future breach by the other party.
12.5 Headings: The headings and captions in this Agreement
are for convenience purposes only, and shall not be used to construe the terms of
this Agreement.
12.6 Entire Agreement: This Agreement contains the entire
understanding between the parties with respect to the matters contained herein.
This Agreement supercedes all prior agreements between the parties, whether oral
or written, express or implied, as to the matters contained herein. No waiver, consent,
modification, amendment or change of the terms of this Agreement shall be binding
unless in writing and signed by the parties.
12.7 Notices: All notices to MeM under this Agreement
must be in writing to 11385 Montgomery Road, Suite 240, Cincinnati, Ohio 45249 through
(i) personal service, or (ii) via certified mail, return receipt requested. All
notices to Customer under this Agreement must be in writing to the contact person
on Customer’s account through (i.) personal service, (ii.) via certified mail, return
receipt requested; or (iii.) via electronic mail to the email address on Customer’s
account and Customer consents to such electronic notification. Notice shall be effective
upon personal service or delivery of the certified mail, as the case may be. In
the case of electronic mail, notice shall be effective when sent.
