By using or accessing the Sites, you agree to these Terms, as may be updated from time to time in accordance with Section 9 below.
PLEASE READ THE FOLLOWING TERMS CAREFULLY:
ARBITRATION NOTICE. You agree that disputes arising under these Terms will be resolved by binding, individual arbitration as further described in Section 12, and BY ACCEPTING THESE TERMS, YOU AND TUKIOS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury.
If you do not agree to all the terms and conditions of this Agreement, you may not access or use the Sites.
1) Account Security. To use the Sites you must (i) be at least eighteen (18) years of age; (ii) have not previously been suspended or removed from the Sites; and (iii) register for and use the Sites in compliance with any and all applicable laws and regulations.
2)Account Registration. To access some features of the Sites, you may be required to register for an account. When you register for an account, we may ask you to give us certain identifying information about yourself, including but not limited to your email address and other contact information, and to create a user name and password ("Registration Information"). When registering for and maintaining an account, you agree to provide true, accurate, current, and complete information about yourself. You also agree not to impersonate anyone, misrepresent any affiliation with anyone else, use false information, or otherwise conceal your identity from Tukios for any purpose. You are solely responsible for maintaining the confidentiality and security of your password and other Registration Information. For your protection and the protection of other users, we ask you not to share your Registration Information with anyone else. If you do share this information with anyone, we will consider their activities to have been authorized by you. If you have reason to believe that your account is no longer secure, you must immediately notify us at firstname.lastname@example.org.
3)Prohibited. You agree not to:
a) Use the Sites for any illegal purpose, or in violation of any local, state, national, or international law;
b) Violate or encourage others to violate the rights of third parties, including intellectual property rights, privacy rights, and/or publicity rights;
c) Post, upload, or distribute any content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, hateful, or otherwise inappropriate;
d) Interfere in any way with security-related features of the Sites;
e) Interfere with the operation or any user's enjoyment of the Sites, including by uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code, making unsolicited offers or advertisements to other users, or attempting to collect personal information about users or third parties without their consent;
f) Access, monitor or copy any content or information of the Sites using any robot, spider, scraper, or other automated means or any manual process for any purpose without Tukios express written permission;
g) Use, reproduce, modify, distribute or store any part of the Sites (including obituaries, event information, or other content) for any purpose without the prior written permission of Tukios;
h) Perform any fraudulent activity, including impersonating any person or entity, claiming false affiliations, accessing the accounts of other users without permission, or falsifying your identity or any information about you, including age or date of birth; or
i) Sell or otherwise transfer the access granted herein.
4) Third-Party Content. The Sites may contain links to third-party websites and services. Tukios provides such links as a convenience and does not control or endorse these websites and services. You acknowledge and agree that Tukios has not reviewed the content, advertising, products, services, or other materials that appear on such third-party websites or services, and is not responsible for the legality, accuracy, or appropriateness of any such content, and shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of any such third-party websites or services.
5)Intellectual Property. You acknowledge and agree that when you submit an obituary, post comments, submit a tribute video, or post or submit other content (together, "content") to Tukios or any website of any Client operated by Tukios, such content will be shared with and stored by Tukios and its affiliates and partners. You further acknowledge and agree that you relinquish all ownership rights in any ideas or suggestions that you submit to Tukios through the Sites. The Sites are protected by applicable copyright and other intellectual property laws, and no materials from the Sites may be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way without our express permission. All trademarks and service marks on the Sites belong to Tukios, except third-party trademarks or service marks, which are the property of their respective owners.
6)User Content and DMCA Notice. You represent and warrant that you own or otherwise have the right to use any content you post to the Sites. If you believe that your content has been used in a way that constitutes copyright infringement, you may contact our Designated Agent:
ATTN: Content/DMCA Notices
2326 Washington Blvd. #303
Ogden, UT 84409
Phone: (801) 682-4391
You must provide the following information: a) an electronic or physical signature of the copyright owner or the person authorized to act on behalf of the copyright owner; b) a description of the copyrighted work that you claim has been infringed; c) a description of where the material that you claim is infringing is located; d) your address, telephone number, and email address; e) a written statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. Tukios has adopted and implements a policy that provides for termination in appropriate circumstances of accounts of users who repeatedly infringe copyright or other intellectual property rights of Tukios or others.
7) Indemnification. You agree that you will be personally responsible for your use of the Sites, and you agree to defend, indemnify, and hold harmless Tukios, Tukios’s subcontractors and Tukios’s and such subcontractors’ officers, directors, employees, shareholders, parents, subsidiaries, agents, successors, and assigns. from and against any and all claims, liabilities, damages, losses, and expenses (including attorneys' and accounting fees and costs), arising out of or in any way connected with (i) your access to, use of, or alleged use of the Sites; (ii) your violation of the Terms or any applicable law or regulation; (iii) your violation of any third party right, including without limitation any intellectual property right, publicity, confidentiality, property, or privacy right; or (iv) any disputes or issues between you and any third party. Tukios reserves the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim.
8)Termination. If you violate these Terms, your permission to use the Sites will automatically terminate. In addition, Tukios in its sole discretion may suspend or terminate your user account and/or suspend or terminate some or all of your access to the Sites at any time, with or without notice to you. You may terminate your account at any time by contacting Tukios at email@example.com. After your account is terminated, information and content previously provided by you will no longer be accessible through your account, but Tukios may continue to store such information and content, and it may also be stored by third parties to whom it has been transferred through your use of the Sites.
9)Modification of the Terms. Tukios reserves the right at any time to modify these Terms and to impose new or additional terms or conditions on your use of the Sites. Such modifications and additional terms and conditions will be effective immediately upon notice and incorporated into these Terms. We will make reasonable efforts to notify you of any material changes to the Terms, including, but not limited to, by posting a notice to our website or by sending an email to any address you may have provided to us. Your continued use of the Sites following notice will be deemed acceptance of any modifications to the Terms.
10) Disclaimers of Warranties. The Sites are provided "as is" and on an "as available" basis, without warranty or condition of any kind, either express or implied. Although Tukios seeks to maintain safe, secure, accurate, and well-functioning services, we cannot guarantee the continuous operation of or access to our Sites, and there may at times be inadvertent technical or factual errors or inaccuracies. Tukios specifically (but without limitation) disclaims (i) any implied warranties of merchantability, fitness for a particular purpose, quiet enjoyment, or non-infringement; and (ii) any warranties arising out of course-of-dealing, usage, or trade. You assume all risk for any/all damages that may result from your use of or access to the Sites. Tukios does not guarantee the accuracy of, and disclaims all liability for, any errors or other inaccuracies in the information, content, recommendations, and materials made available through the Sites.
a) Generally. In the interest of resolving disputes between you and Tukios in the most expedient and cost effective manner, and except as expressly described herein, you and Tukios agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND TUKIOS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
b) Exceptions. Despite the provisions of this Section, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
c) Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt-out of the provisions of this Section within 30 days after the date that you agree to these Terms by sending a letter to Tukios, Inc., Attention: Legal Department – Arbitration Opt-Out, 2326 Washington Blvd., #303, Ogden, UT 84409 that specifies: your full legal name, the email address associated with your account on the Services, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Tukios receives your Opt-Out Notice, this Section will be void and any action arising out of these Terms will be resolved as set forth in Section 13 (“Governing Law”) The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
d) Arbitrator. Any arbitration between you and Tukios will be settled by a single arbitrator under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at https://www.adr.org/, by calling the AAA at +1-800-778-7879, or by contacting Tukios. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
e) Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Tukios’s address for Notice of Arbitration is: Tukios, Inc., 2326 Washington Blvd., #303, Ogden, UT 84409. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Tukios may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing and will take place in Salt Lake City, Utah. During the arbitration, the amount of any settlement offer made by you or Tukios must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Tukios in settlement of the dispute prior to the award, Tukios will pay to you the higher of: (c) the amount awarded by the arbitrator and (d) US$10,000.
f)Fees. If you commence arbitration in accordance with these Terms, Tukios will reimburse you for your payment of the filing fee, unless your claim is for more than US$10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in the county and state of your residence or billing address, but if the claim is for US$10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your permanent residence. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Tukios for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
g)No Class Actions. YOU AND TUKIOS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Tukios agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
h) Modifications to this Arbitration Provision. If Tukios makes any future change to this arbitration provision, other than a change to Tukios’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Tukios’ address for Notice of Arbitration, in which case your account with Tukios will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
i) Enforceability. If Section 11(g) (“No Class Actions”) or the entirety of this Section is found to be unenforceable, or if Tukios receives an Opt-Out Notice from you, then the entirety of this Section will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 13 (“Governing Law”) will govern any action arising out of or related to these Terms.
12) Limitation of Liability. In no event will Tukios be liable to you for any incidental, special, consequential, direct, indirect, or punitive damages, whether based on warranty, contract, tort (including negligence), statute, or any other legal theory, whether or not Tukios has been informed of the possibility of such damage. Some jurisdictions do not allow the disclaimer of warranties or limitation of liability in certain circumstances. Accordingly, some of the above limitations may not apply to you
13) Governing Law. These Terms are governed by the laws of the State of Utah without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder, you and Tukios agree to submit to the exclusive personal jurisdiction of the state or federal courts located in Salt Lake City, for the purpose of litigating all such disputes.
14) Modification of the Sites. Tukios reserves the right to modify or discontinue, temporarily or permanently, some or all of the Sites at any time without any notice or further obligation to you. You agree that Tukios will not be liable to you or to any third party for any modification, suspension, or discontinuance of any of the Sites.
a) Entire Agreement. These Terms constitute the entire and exclusive understanding and agreement between you and Tukios regarding your use of and access to the Sites, and except as expressly permitted above may only be amended by a written agreement signed by authorized representatives of the parties.
b) No Waiver. The failure to require performance of any provision shall not affect our right to require performance at any time thereafter, nor shall a waiver of any breach or default of the Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
c) Paragraph Headers. Use of paragraph headers in the Terms is for convenience only and shall not have any impact on the interpretation of particular provisions.
d) Severability. In the event that any part of the Terms is held to be invalid or unenforceable, the unenforceable part shall be given effect to the greatest extent possible and the remaining parts will remain in full force and effect.
16) Notice to California Residents. Under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the service or to receive further information regarding use of the service.