3. ELIGIBILITY. To access or use the Site, you must be 18 years or older and have the requisite authority to enter into these Terms.
5. DESCRIPTION OF SERVICES (including but not limited to)
Caring provides tools including ShivaOrganizer and SympathyOrganizer, which enables a close friend or family member to create an Individual Profile for the mourning family with all the details about the mourning period to organize support. The link to the Individual Profile can be sent to friends and family who can sign up to send meals to the family.
Caring also includes a Local Directory of Vendors, such as restaurants, caterers, florists, gift baskets and other relevant businesses. Vendors create a Vendor Listing on the site that includes information about their service offerings, promoting their business and receiving testimonials that are posted to the site. Visitors to the site can search by location to see details of the Vendors services and then visitors to the site order directly from the Vendor.
The site also includes Helpful Tips in form of articles and checklists for organizing support and visiting a family in mourning.
6. LICENSE TO USE AND ACCESS THE SERVICES
- Caring hereby grants User and/or Vendor a limited, non-exclusive worldwide license (without the right to sublicense) to use Caring’s Website and/or Service Providers. Nothing in this Agreement shall be deemed to constitute or result in an assignment of the License to User and/or Vendor or to give User and/or Vendor any right, title or interest in or to the License other than the right to use the License in accordance with this Agreement. User and/or Vendor shall not register or apply to register the License, or any confusingly similar mark, or represent that it owns the License. User and/or Vendor will not attack or challenge in any court of law, or in any other manner, the title of Caring to the License or Caring’s ownership of any copyrights in or distinctive features of the License, or the validity or enforceability of the License.
- User and/or Vendor shall access the Website and use the Services and Service Providers subject to the restrictions contained herein and as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, User and/or Vendor will not, directly or indirectly: (i) copy, modify or create derivative works or improvements of the Website and/or Software; (ii) rent, lease, lend, sell, sublicense, assign, publish or otherwise make available any of the Website information or Software to any third party including on or in connection with any time-sharing, software as a service, cloud or other technology or service, (iii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Website and/or Software in whole or in part; (iv) access or use the Website and/or Software or Service Provider Materials in any manner or for any purpose that violates any applicable law or regulation; (v) access or use the Website and/or Software to communicate any message or material that is harassing, libelous, threatening, obscene or would violate the copyright, other intellectual property right or privacy right of any person or is otherwise unlawful or that would give rise to civil liability or that constitutes or encourages conduct that could constitute a criminal offense under any applicable law or regulation; (vi) otherwise access or use the Website and/or Software or Service Providers, for purposes beyond the scope of the authorization set forth in this Agreement or in any manner or for any purpose that is unlawful under applicable law; (vii) access or use the Website and/or Software for purposes of competitive analysis of the Software the development, provision or use of a competing product or any other purpose that is to Caring’s detriment or commercial disadvantage; or (viii) access or use the Website and/or Software to damage, upload, transmit or otherwise provide to or through the Website and/or Software any information or materials that User and/or Vendor knows to be unlawful or injurious.
- Reservations of Rights. Except for the license and access rights granted herein, nothing in this Agreement grants any title or ownership interest in or to any Intellectual Property Rights in or relating to, the Website and/or Software or Service Providers, whether expressly, by implication, estoppel or otherwise. All title and ownership interest in and to the Website and/or Software are and will remain with Caring.
7. REGISTRATION, MY ACCOUNT PAGE AND PROFILE
- You must be at least age 18 or older to register and create and maintain an Individual Profile.
- When you register, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form, and (b) maintain and promptly update your registration information to keep it true, accurate, current and complete.
- Password Security. As a registered user, you must choose a unique password. You may not use the password of any other person to access the Service and doing so may cause Caring to delete your account. You are responsible for maintaining the confidentiality of your password and may not let any other person use it to access the Service. You are solely responsible for the activities of anyone accessing the Service using your password, even if the activities were not authorized by you. You must notify us at firstname.lastname@example.org immediately of any unauthorized use of your password. In addition, if you believe or suspect your password has been compromised, you must promptly change your password using the functionality provided in the Service.
- Caring can resolve password/account issues with your consent.
8. REVIEWS POSTED BY CARING ORGANIZER USERS. All content and/or reviews will be reviewed by Caring prior to posting to the website. Caring reserves the right not to post and/or to remove reviews if, in Caring’s opinion, the language is inappropriate.
- LIMITATION OF LIABILITY
- Exclusion of Damages. In no event shall Caring or any of its Service Providers or suppliers be liable under or in connection with this agreement or its subject matter under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability and otherwise, for any: (i) loss of production, use, business, revenue or profit or diminution in value; (ii) impairment, inability to use or loss, interruption or delay of the services, (iii) consequential, incidental, indirect, exemplary, special, enhanced or punitive damages, regardless of whether such persons were advised of the possibility of such losses or damages or such losses or damages were otherwise foreseeable, and notwithstanding the failure of any agreed or other remedy of its essential purpose.
- Cap on Monetary Liability. In no event will the aggregate liability of Caring under or in connection with this agreement or its subject matter, under any legal or equitable theory including breach of contract, tort (including negligence), strict liability and otherwise, exceed three times (3x) the fees paid by User and/or Vendor to any Service Provider for the services under this agreement in the twelve months prior to the act that gave rise to the liability, whether or not provider has been advised of the possibility of such damages.
- LAW/JURISDICTION/VENUE. Caring is a Website that can accessed by its Users globally. However, this Agreement is governed by and construed in accordance with the internal laws of the state of New Jersey without giving effect to conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of New Jersey.
- DISPUTE RESOLUTION BY BINDING ARBITRATION. The parties shall endeavor to resolve any dispute with respect to this Agreement in good faith within thirty (30) days of a dispute being raised by one party with the other party. The Parties agree that any unresolved controversy or claim arising out of or relating to this Agreement shall be submitted to binding arbitration under the auspices of AAA in Morristown, New Jersey in accordance with its rules then in effect, and judgment upon any award rendered in such arbitration will be binding and may be entered in any court having jurisdiction thereof. In any such action or proceeding, the prevailing party will be entitled to recover costs and attorneys’ fees. The decision of the arbitrator shall be final, binding, and conclusive upon the parties. Such decision shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order awarded by the arbitrator. The award of any such proceeding shall be final, conclusive and binding upon the parties. Judgment upon such award may be entered in and executed upon by the prevailing party in any competent court in the United States of America or in any court having jurisdiction thereof, or application may be made by the prevailing party to any such court for judicial acceptance of such award and an order of enforcement. This dispute resolution provision shall be governed by the AAA.
10. LINKS TO THIRD PARTY SITES/VENDORS/CONTACT WITH ADVERTISERS/OTHER USERS. Caring will not be responsible under any circumstances for any defect in or damage caused by any third-party software (software or Intellectual Property that is either not owned by Caring and/or to which Caring has a link to on its own Website). For Vendors, the Rate Card language is incorporated herein.
11. TERMINATION. Either party may terminate this Agreement at any time with or without notice. All sections of this Agreement which by their nature should survive termination will survive termination. Caring reserves the right to restrict, suspend or terminate this Agreement and your access to all or any part of the site for any reason without prior notice or liability.
12. FORCE MAJEURE. In the event that either party shall be prevented from performing any of its obligations due under the terms of this Agreement by an act of God, acts of war, civil riot, an act of State, strikes, or occurrence of any other event beyond the control of the parties hereto (a “Force Majeure Event”), that party shall be excused from any further performance of the obligations and undertakings set forth under the terms of this agreement. The party suffering a Force Majeure Event shall give notice within 5 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue and shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized.
13. INDIVIDUAL PROFILES
14. CONFIDENTIALITY/INTELLECTUAL PROPERTY/COPYRIGHT
- Each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) has disclosed or may disclose business, technical, personal or financial information relating to the Disclosing Party’s business or person (hereinafter referred to as “Proprietary Information” of the Disclosing Party). A non-exhaustive list of Proprietary Information of Caring includes non-public information regarding features, functionality, pricing, products plans, customer lists, vendor lists, terms of contracts including this Agreement, and performance of the Services, past purchase and sale history, specifications, needs, orders and requirements, information disclosed to Caring by User and/or Vendor while providing services to User and/or Vendor concerning the business or affairs of User and/or Vendor, the prices that User and/or Vendor and its affiliates obtain or have obtained from the Service Provider of, Intellectual Property Rights(vi) goodwill, trademark, copyright and any other property of Caring and terms of contracts including this Agreement. To be clear, however information for both Parties listed is only considered Proprietary Information for so long as it has not been made known to the general public by the Disclosing Party or through the rightful action of a third party. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
- User and/or Vendor shall own all right, title and interest in and to the User and/or Vendor Data. Caring shall own and retain all right, title and interest in and to the Website and/or Software, all improvements, enhancements or modifications thereto.
- Commercially Reasonable Protections and Security Enhancements. All processing systems, software and hardware and policies or procedures used by Caring contain commercially reasonable protections and security enhancements, and provide commercially reasonable safeguards and system protections, consistent with industry standards, to prevent hacking, viruses, security breaches, identity theft, fraud and loss of data, and to prevent any breach of this Agreement.Physical and Data Security Controls. During the Term of this Agreement, Caring will maintain physical and data security controls, transaction procedures, business resumption, continuity planning and testing, contingency arrangements and insurance coverage.
- Physical and Data Security Controls. During the Term of this Agreement, Caring will maintain physical and data security controls, transaction procedures, business resumption, continuity planning and testing, contingency arrangements and insurance coverage.
- Notwithstanding anything to the contrary, Caring shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Website and/or Services, Software and related systems and technologies, and Caring will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Website and/or Services, Software and other Caring offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
- Rate Cards – Vendors must agree to the terms contained in the Local Directory Rate Card for a specific Plan and provide the necessary information required by Caring.
16. CODE OF CONDUCT. Caring’s Website was created to help those in mourning, and relatives and friends of those in mourning, to organize support and be able to locate and utilize local businesses for their specific needs. Caring expressly prohibits anything that incites, advocates or represents pornography, obscenity, vulgarity, profanity, hatred, bigotry, defamation, threats, fraud, intimidation, racism or violence, including but not limited to on the basis of an individual’s age, gender, ability, disability, ethnicity, sexual orientation or race. Caring reserves the right to amend/change/modify the Code of Conduct at any time without notice. You should periodically review this section to ensure compliance.
18. DISCLAIMER OF WARRANTIES. Except for any express warranties set forth in this agreement, if any, all services, the website and software are provided “as is” and Caring hereby disclaims all warranties, whether express, implied, statutory or otherwise and Caring specifically disclaims all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, and all warranties arising from course of dealing, trade usage or trade practice. Without limiting the foregoing, Caring makes no warranty of any kind that the Website, services and/or software or any results of the use thereof will meet or User and/or Vendor’s or any other person’s requirement, operate without interruption, achieve any intended result, be compatible or work with any software, system or be secure, accurate, complete, free of harmful code or error free.
- Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
- Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
- Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and be enforceable.
- Entire Agreement, Waiver and Modifications. This Agreement, together with other documents incorporated by reference, is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
CONTACT US. All notices, requests, demands, claims, and other communications hereunder shall be in writing. Any notice, request, demand, claim or other communication hereunder shall be delivered personally to the recipient, delivered by email to the intended recipient and addressed to the intended recipient as set forth below: