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Terms of Use Agreement

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READ THIS TERMS OF USE AGREEMENT BEFORE ACCESSING WEB SITE. WARNING; THIS TERMS OF USE AGREEMENT CONTAINS A MEDIATION AND AN ARBITRATION PROVISION.

 

Effective Date:  This Terms of Use Agreement was last updated on September 14, 2008

 

This Terms of Use Agreement ("this Agreement") sets forth the standards of use of the OpenAfterMyDeath.com (sometimes hereinafter "this web site") online service for registered members. By using the OpenAfterMyDeath.com web site you (the "Member") agree to these terms and conditions. If you do not agree to the terms and conditions of this Agreement, you should immediately cease all usage of this web site.

 

OpenAfterMyDeath.com reserves the right, at any time, to amend, modify, alter or update (collectively  "amendment") the terms and conditions of this Agreement without prior notice. Any amendment shall become effective immediately upon being posted at the OpenAfterMyDeath.com web site. (This Agreement as amended by any amendment is also hereinafter referred to as "this Agreement".) The Member's continued use of the web site after this Agreement is changed by any amendment and then posted on this web site in its changed form constitutes an acknowledgment and acceptance of this Agreement as changed by any amendment. Except as provided in this paragraph, this Agreement may not be amended.

 

1.     Description of Service

 

OpenAfterMyDeath.com is providing the Member with document storage and distribution services. Member must provide (1) all equipment necessary for their own Internet connection, including computer and modem, (2) provide for Member's access to the Internet and (3) pay any fees which relate to such connection. 

 

2.     Disclaimer of Warranties.

 

The web site is provided by OpenAfterMyDeath.com on an "as is" and on an "as available" basis. To the fullest extent permitted by applicable law, OpenAfterMyDeath.com makes no representations or warranties of any kind, express or implied, regarding the use or the results of this web site in terms of its correctness, accuracy, reliability, or otherwise. OpenAfterMyDeath.com shall have no liability for any interruptions in the use of this web site. OpenAfterMyDeath.com disclaims all warranties of any type or nature with regard to the information provided, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose, and non-infringement. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES; THEREFORE THE ABOVE EXCLUSION CONCERNING IMPLIED WARRANTIES IS INAPPLICABLE TO SUCH JURISDICTIONS.

 

3.     Limitation of Liability

 

OpenAfterMyDeath.com SHALL NOT be liable to anyone, and does not assume any responsibility or liability to anyone, for any injury to any individual, organization or property for any damages whatsoever, and in particular OpenAfterMyDeath.com shall not be liable for any special, indirect, consequential or incidental damages, nor for damages for lost profits, loss of revenue, loss of use or any other financial loss sustained as a result of, arising out of or related to the use or application of the information, methods or materials that are available or described in this web site or in any links to other web sites, whether such damages arise in contract, negligence, tort, under statute, in equity, at law, or otherwise, even if OpenAfterMyDeath.com has been advised of the possibility of such damages. SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, THEREFORE SOME OF THE ABOVE LIMITATIONS ARE INAPPLICABLE IN SUCH JURISDICTIONS.

 

4.      Indemnification

 

The Member agrees to indemnify and hold OpenAfterMyDeath.com, its owners, parents, subsidiaries, affiliates, officers and employees, harmless from any claim or demand, including attorneys' fees and costs, made by any third party due to or arising out of the Member's use of the web site, the violation of this Agreement, or infringement by the Member or any other user of the web site using Member's computer, of any intellectual property or any other right of any person or entity. OpenAfterMyDeath.com reserves the right to designate its own attorneys to represent OpenAfterMyDeath.com in any litigation which is subject to such indemnification. The fees of such attorneys as to which such indemnifications applies shall be based upon the then usual hourly rate of such attorneys for such legal services, and such fees shall not be limited to any lesser amount any court may deem to be reasonable.

 

5.     Members Account

 

All Members of the web site shall receive a password and an account. Members are entirely responsible for any and all activities which occur under their account, whether authorized or not authorized. The Member agrees to notify OpenAfterMyDeath.com of any unauthorized use of the Member's account or any other breach of security known or which should be known to the Member. The Member's right to use the web site is personal to the Member. The Member agrees not to resell or make any commercial use of the web site without the express written consent of OpenAfterMyDeath.com.

 

6.     Modifications and Interruption to Service

 

OpenAfterMyDeath.com reserves the right to modify or discontinue the web site with or without notice to the Member. OpenAfterMyDeath.com shall not be liable to the member or to any third party should OpenAfterMyDeath.com exercise its right to modify or discontinue the website. The Member acknowledges and accepts that OpenAfterMyDeath.com does not guarantee continuous, uninterrupted or secure access to the web site and operation of the web site may be interferred with or adversely affected by numerous factors or circumstances outside of our control.

 

7. Message Delivery

OpenAfterMyDeath.com will, after receipt of the returned certificate of entitlement and such supporting documentation which may be reasonably requested, make commercially reasonable efforts to deliver to the nominated message recipients, by email to the specified email address, notice of the availability of a message left by the Member. Where the specified email address is invalid or otherwise inaccessible, OpenAfterMyDeath.com cannot guarantee the delivery of the message.

8.     Third-Party Sites

 

The web site of OpenAfterMyDeath.com may include links to other sites on the Internet that are owned and operated by online merchants and other third parties. The Member acknowledges that OpenAfterMyDeath.com is not responsible for the availability of, or the content located on or through, any third-party site. The Member should contact the site administrator or webmaster for those third-party sites if the Member has any concerns regarding such links or the content located on such sites. The Member's use of those third-party sites is subject to the terms of use and privacy policies of each site, and OpenAfterMyDeath.com is not responsible therefor. OpenAfterMyDeath.com encourages all Members to review the privacy policies of third-parties' sites. OpenAfterMyDeath.com has no control over the resources that can be accessed from this web site, and some of those resources may not be accessible or available from time to time.

 

9.     Disclaimer Regarding Accuracy and Vendor Information

 

OpenAfterMyDeath.com disclaims any and all responsibility for the information which is accessible through this web site and OpenAfterMyDeath.com assumes no liability associated therewith. Product specifications and other information from Vendors have either been provided by the Vendors or collected from publicly available sources. While OpenAfterMyDeath.com makes every effort to ensure that the information on this web site is accurate, OpenAfterMyDeath.com make no representation, guarantee or warranty whatsoever, express or implied, as to the accuracy, effectiveness, usefulness or reliability of any information, methods or materials provided on this web site or with regard to any product provided or offered by any Vendor, and the Member acknowledges that any reliance on any representations or warranties provided by any Vendor shall be at the Member's own risk.

 

10.     Governing Jurisdiction of the Courts of California

 

This web site is operated and provided in the State of California. As such, this web site is subject to the laws of the State of California, and such laws will govern this Agreement without giving effect to any choice of law rules. OpenAfterMyDeath.com makes no representation that this web site or other services of OpenAfterMyDeath.com are appropriate, legal or available for use in other locations. Accordingly, if you choose to access this web site you agree to do so subject to the laws of the State California. 

 

11.  Compliance with Laws.

 

The Member assumes all knowledge of applicable law and is responsible for compliance with all such laws. The Member may not use this web site in any way that violates applicable local, state, federal or international laws, regulations or other government requirements. The Member further agrees not to transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, federal, or international law, regulation or other governmental requirement.

 

12.  Copyright and Trademark Information

 

All content included or available on this web site, including, but not limited to, site design, text, graphics, interface and the selection and arrangements thereof is  2008 with all rights reserved and is the property of OpenAfterMyDeath.com and/or third parties protected by intellectual property rights. Any use of materials on this web site (including reproduction for purposes other than those noted above), modification, distribution or replication, in any form, or data extraction, data mining, or other commercial exploitation of any kind of such materials, without prior written permission of an authorized manager of OpenAfterMyDeath.com is strictly prohibited. The Member agrees that the Member will not use any robot, spider or other automatic device, or any manual process to monitor or copy any part of this web site or any content contained therein without prior written permission of an authorized manager of OpenAfterMyDeath.com .

 

OpenAfterMyDeath.com and OpenAfterMyDeath.com are proprietary marks of OpenAfterMyDeath.com. OpenAfterMyDeath.com's trademarks may not be used in connection with any product or service that is not provided by OpenAfterMyDeath.com nor in any manner that is likely to cause confusion among customers or that disparages or discredits OpenAfterMyDeath.com.

 

All other trademarks displayed on OpenAfterMyDeath.com's web site are the trademarks of their respective owners, and constitute neither an endorsement nor a recommendation of those Vendors. In addition, such use of trademarks or links to the web sites of Vendors is not intended to imply, directly or indirectly, that those Vendors endorse or have any affiliation with OpenAfterMyDeath.com

 

13.  Notification of Claimed Copyright Infringement

 

Pursuant to Section 512(c) of the Copyright Revision Act, as enacted through the Digital Millennium Copyright Act, OpenAfterMyDeath.com designates Ira Newman as its agent for receipt of notifications of claimed copyright infringement by telephone at 877-644-1672 or by email at info@openaftermydeath.com

14.  Mediation.

Any dispute arising under this Agreement shall be referred to mediation before a mutually accepted neutral arbitrator in the city in which the Member resides. The cost of the mediation shall be borne equally by the parties to the mediation. Failing the agreement of the parties to agree to arrangements for the mediation process within 30 days after any request for mediation, or failing the parties agreeing during the mediation to a mutually acceptable disposition of all of the issues which constitute the dispute, the parties agree to arbitrate the dispute, or the unresolved issues of the dispute, pursuant to the arbitration provision set forth in paragraph 15 below.

15.  Arbitration.

In the event any controversy or claim arises concerning this Agreement which is not fully settled by mediation, such controversy or claim shall be settled by arbitration by a single arbitrator located in the city in which the Member lives.

Such arbitration shall be conducted pursuant to the then Commercial Arbitration Rules and Mediation Procedures of the American Arbitration Association. The arbitrator shall have the authority to award to the prevailing party such amount of costs, expenses and attorneys', accountants' and witness fees in connection with the arbitration, all other than travel costs, as the arbitrator deems appropriate. The award of the arbitrator may be entered in any court having jurisdiction. If there was no mediation of such controversy or claim, upon the filing of a Demand for Arbitration pursuant to the then Commercial Arbitration Rules and Mediation Procedure of the American Arbitration Association, all parties to the proceeding will have the right of discovery and the arbitrator shall have the authority to issue all orders required in connection therewith.

The parties agree that all discovery shall be completed at least 30 days prior to the date of commencement of the hearing on the arbitration, unless extended by the arbitrator for good cause shown or by mutual agreement of the parties. If there was such a mediation, the parties shall not have the right of discovery unless the arbitrator otherwise rules pursuant to a motion filed by either party. If the controversy or claim was mediated, but was not fully settled, the arbitrator shall be the same person who acted as the mediator in the mediation. In connection with the mediation, unless the arbitrator otherwise rules pursuant to a motion filed by either party, all of the matters discussed during the mediation may be considered by the arbitrator in making a decision during the arbitration.

16.  Other Terms

If any provision of this Agreement is determined to be illegal, indefinite, invalid, unlawful, void or otherwise unenforceable, in whole or in part, the remaining provisions of this Agreement, and any partially enforceable provisions to the extent enforceable in any jurisdiction, shall continue in full force effect and shall be binding and enforceable.

The Member agrees that this Agreement and any other agreements or rights referred to herein may be assigned by OpenAfterMyDeath.com, in its sole discretion, to any third party in the event of a merger, acquisition, sale, transfer or any other event.

This Agreement shall apply in addition to, and shall not be superseded by, any other written agreement between OpenAfterMyDeath.com in relation to anyone's participation as a Member.

The Member agrees that by accepting this Agreement, the Member is consenting to the use and disclosure of their personally identifiable information and other practices described in our Privacy Policy Statement.