TERMS AND CONDITIONS PURCHASE
1. Terms and Conditions
Clarity Memories, LLC, an Indiana limited liability company (“Company”) is engaged in the business of providing physical QR Codes to be placed on the headstones of decedents (“Headstone Code”) which allow cell phone users to access information about the decedents provided by the decedents’ relatives (“Published Information”) through an electronic cell phone application (“App”). The following terms and conditions are presented as the controlling provisions regarding Buyer’s ordering of the Headstone Code Company. By ordering the Headstone Code from Company, Buyer agrees to be bound by these Terms and Conditions and all applicable laws and regulations, and that Buyer is responsible for compliance with all such conditions. ORDERING A HEADSTONE CODE FROM COMPANY IS BUYER’S EXPRESS AGREEMENT TO BE BOUND BY THESE TERMS AND CONDITIONS.
No additional or conflicting terms, conditions, description, price, quantity, or delivery schedule shall be charged, and no agreement or understanding in addition to or different from the terms and conditions stated herein shall be binding upon, Company without express written agreement from Company’s authorized representative.
If Buyer is an individual, by agreeing to these Terms and Conditions, Buyer represents that he or she is at least the age of majority in Buyer’s state or province of residence.
Buyer may neither use Company’s Headstone Code or App for any illegal or unauthorized purpose nor violate any laws in his, her or its jurisdiction (including, but not limited to, copyright laws).
2. Consent to Disclosure
Buyer hereby agrees that by purchasing the Headstone Code from Company, Buyer expressly permits Company to disclose the Published Information on the App. Buyer expressly acknowledges that publication of the Published Information on the App potentially discloses the Published Information to any cell phone user. In the event Buyer should no longer wish for the Published Information to be available on the App, Buyer may provide Notice to Company to disable the Headstone Code. Company shall thereafter disable the Headstone Code within a reasonable timeframe after receipt of Notice provided by Buyer. Upon disabling the Headstone Code, the Published Information will no longer be available to cell phone users on the App. Notwithstanding the foregoing, Company shall not be held liable for any information, whether or not identical to the Published Information, that remains accessible to the general public provided that Company disables the Headstone Code and the Published Information is no longer available via the App.
Buyer shall immediately and irrevocably accept the Headstone Code when tendered and shall, in case of damaged or nonconforming Headstone Code, follow only the procedures and remedies outlined in the Return and Exchange Policy herein. Acceptance shall occur upon tender to Buyer. If Buyer refuses to receive such Headstone Code when tendered, Company may exercise any or all of the remedies afforded to Sellers by Section 2-703 et seq. of the Uniform Commercial Code. Company shall have no obligation to hold or resell such Headstone Code for Buyer's account.
4. Representation of Solvency
Buyer represents that by placing its order, it hereby acknowledges and represents that it is not insolvent as the term is defined in Section 1-201 (23) of the Uniform Commercial Code. In the event that Buyer becomes insolvent before any delivery of the Headstone Code, it will notify Company. Failure to notify Company shall constitute a written reaffirmation and representation of Buyer's solvency at the time of delivery.
Headstone Codes are sold as is.
Company warrants the Headstone Codes to be in working order for fifteen (15) years from the date the Headstone Code is applied to the headstone.
COMPANY MAKES NO OTHER WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WHETHER OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE OR AGAINST PATENT, COPYRIGHT, OR TRADEMARK INFRINGEMENT OR OTHERWISE. COMPANY DOES NOT WARRANT OR MAKE ANY OTHER REPRESENTATIONS CONCERNING THE ACCURACY, LIKELY RESULTS, OR RELIABILITY OF THE USE OF THE HEADSTONE CODES OR OTHERWISE RELATING TO SUCH MATERIALS.
BUYER ASSUMES AND INCURS ALL RISK RESULTING FROM THE USE OF THE HEADSTONE CODES SOLD HEREUNDER.
6. Return and Exchange Policy
Buyer shall inspect Headstone Code delivered hereunder after delivery of such Headstone Code to the shipping destination. In the event the Headstone Code sold hereunder fails to arrive in good working order, and if Buyer shall notify Company thereof within ten (10) business days of Buyer's discovery of such defects, then Company shall provide Buyer with a free replacement Headstone Code.
Company will not issue refunds for any Headstone Codes.
After initial delivery, Company will only replace a Headstone Code if it is defective to the extent that App users are unable to access the Published Information on the App through no fault of Buyer, Buyer’s agents, contractors, or employees. Buyer may request up to three replacement Headstone Codes during the fifteen (15) year period following the original purchase.
Buyer shall be responsible for shipment costs for any replacement Headstone Codes.
Notice to Company of a defective Headstone Code under this Section 6 shall be satisfied only if Buyer submits a photograph of the Headstone Code to Company via email.
7. Buyer's Remedies.
The remedy of issuing appropriate replacement, provided by the Return and Exchange Policy, is the sole and exclusive remedy afforded Buyer for breach of the Terms and Conditions or for breach of any express or implied warranties arising under state law. Company shall not be liable for any labor costs or other expenses in replacing a defective Headstone Code; nor for any incidental, special, or consequential damages of any kind, regardless of whether contributed to by any defect in materials or workmanship, negligence in manufacture or design, or failure to warn. Company makes NO WARRANTY with respect to any Headstone Code which has been altered by any other person or entity or subjected to misuse, abuse or use for which it was not designed, including without limitation the failure to comply with the installation instructions shipped with each Headstone Code. Company shall in no way be liable for any losses, costs, forfeitures, or damages whether direct or indirect and whether or not resulting from or contributed to by the default, negligence, whether in manufacturing or design, or failure to warn on the part of Company, its agents, employees subcontractors, which might be claimed as the result of, or use (with or without an active malfunction) or malfunction of the Headstone Codes covered by the warranty.
THE EXTENT OF LIABILITY OF COMPANY (EXCEPT AS TO TITLE) ARISING OUT OF THE SUPPLYING OF SAID HEADSTONE CODES, OR THEIR USE, WHETHER ARISING FROM WARRANTY, CONTRACT, NEGLIGENCE OR OTHERWISE SHALL NOT IN ANY CASE EXCEED THE COST OF PROVIDING A REPLACEMENT HEADSTONE CODE AS HEREIN PROVIDED. THE FOREGOING SHALL CONSTITUTE THE SOLE AND EXCLUSIVE REMEDY OF BUYER AND THE SOLE AND EXCLUSIVE LIABILITY OF COMPANY.
UNDER NO CIRCUMSTANCES SHALL COMPANY BE LIABLE TO BUYER FOR ANY SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, WHETHER BASED UPON LOST GOODWILL, EMOTIONAL DISTRESS, IMPAIRMENT OF OTHER GOODS, OR OTHERWISE AND WHETHER ARISING OUT OF ANY BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, NEGLIGENCE OR OTHERWISE.
8. Delivery and Force Majeure
Company shall deliver Headstone Codes within two (2) weeks from receipt of payment and the Published Information. Published Information must be submitted on Company’s approved format. All delivery dates are subject to conditions beyond Company’s reasonable control, including without limitation (1) acts of God, unforeseeable circumstances, acts (including delay or failure to act) of any governmental authority (de jure or de facto), war (declared or undeclared), riot, revolution, priorities, fires, strikes, explosions, floods, quarantine restrictions, sabotage, or epidemics, (2) inability due to causes beyond Company's reasonable control to timely obtain, at normal prevailing market prices, necessary and suitable labor, materials, components, manufacturing facilities, transportation, or instructions from Buyer, and (3) any other cause beyond Company's reasonable control. In the event of any such delay or failure, the date of delivery shall be extended for a period equal to the time lost by reason thereof. If by reason of any such circumstances Company is unable to supply the Headstone Code to be delivered hereunder, Company shall refund Buyer’s payment.
9. Payment, Title, and Risk of Loss
Payment is to be made by Buyer in United States dollars, subject to the terms and conditions of payment stated herein. Company’s prices are quoted and shipped EXW Company's facility. Company's prices do not include sales, use, excise, value-added, customs duties, or other similar taxes.
Cost of all return shipments, for whatever reason returned, shall be borne by Buyer, with title and risk of loss passing to Company upon delivery to Company at its receiving destination.
10. Information Disclosed by Company
Any proprietary knowledge or information which Company shall have disclosed or may hereafter disclose to Buyer, or which may hereafter be acquired by Buyer, in connection with the Headstone Codes, App, or other services described herein, shall be deemed to be confidential and proprietary information of Company and shall not be disclosed by Buyer unless and until it becomes common knowledge. Buyer agrees that all Headstone Codes and the App are proprietary in nature and Buyer shall not reproduce, re‑engineer, reverse engineer or otherwise duplicate or appropriate the trade secret formulas of such Headstone Codes and App.
Buyer shall indemnify, defend and hold harmless Company and Company’s parent, subsidiaries, owners, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees from any claim, cost, liability, actions, expense (including, without limitation, reasonable attorneys’ fees and expert witness costs), or demands made by any third party arising out of or relating to the Published Information or its disclosure through the App or otherwise (and including without limitation claims of infringement, intentional infliction of emotional distress). Buyer represents and warrants that the Published Information supplied by Buyer shall not be defamatory, false, misleading, nor infringe upon the property rights of any person or entity and will indemnify, defend, and hold Company harmless from and against any claim, demand, action, cause of action, expense, damage, and cost, including without limitation Company’s attorney fees, and the like arising out of or relating to this provision. Buyer’s breach of these Terms and Conditions or any documents they incorporate by reference, or Buyer’s violation of any law or the rights of a third-party are subject to this indemnification clause.
Buyer shall not assign any interest herein or any rights of obligations hereunder without the written consent of Company.
13. Waiver of Terms and Conditions of Sale at Any Time.
The failure of Company in any one or more instances to insist upon performance of any of the terms or conditions contained herein, or to exercise any right or privilege hereunder, or the waiver by Company of any breach by Buyer, of these terms or conditions of sale, shall not be construed as thereafter waiving such terms, conditions, rights or privileges, and the same shall continue and remain in force and effect as if no failure or waiver had occurred.
Buyer represents and warrants to Company that Buyer has full authority to purchase the Headstone Code and provide Published Information to the App on behalf of the decedent. Company may require at any time in its sole discretion the signature of the Executor of the decedent’s estate before accepting Buyer’s purchase hereunder.
15. Published Information.
Company has the right, in its sole discretion, to refuse to publish any Published Information submitted by Buyer on the App that contains profanity or offends public decency and Buyer shall take all steps necessary to remove the same from any Published Information before submission to Company. Company in its reasonable discretion shall be the sole and file arbiter or what constitutes profane or publicly indecent material. In the event that any profane or indecent material is determined to be included in the Published information, Company may remove or edit the same in Company’s sole discretion at any time and Buyer shall be responsible for the cost of the same.