Terms of Service

Introduction

Welcome to Cemify.com, the website and online service of Coyote Creek Digital, dba Cemify (Cemify, we, our or us). Cemify provides one place, online, for cemeteries and their employees or contractors to manage their mapping, records digitization and other cemetery management needs.This Terms of Use Agreement (Agreement) is a contract between you and Cemify and explains the terms that govern your use of the online services, website (and any materials on the website), software, and other services that we provide or otherwise make available on Cemify.com (collectively, Service). You must read and agree to these terms before using the Service, and if you do not agree with them, you may not use the Service.

This Agreement applies to all visitors of the website or users of the Service, including, as applicable, individual employees at a company (collectively, Users). If you open a Cemify account or are otherwise a registered User and/or are using the website or Service on behalf of a company and/or its employees, you represent and warrant that you have the authority to act on behalf of and bind that company and/or its employees to this Agreement. References to “User” or “you” in this Agreement shall include that company and/or its employees.

Please read this Agreement carefully before accessing or using the Cemify. By accessing or using any part of the web site, you agree to become bound by the terms and conditions of this agreement. If you do not agree to all the terms and conditions of this agreement, then you may not access the Website or use any services. If these terms and conditions are considered an offer by Cemify, acceptance is expressly limited to these terms.

Use of the Service

License of the Service: Subject to the terms and conditions of this Agreement, Cemify grants you a non-exclusive, limited, non-transferable, revocable license to use the Service solely as permitted by the features of the Service we provide to you. We reserve all rights not expressly granted in the Service and the Cemfiy Content (defined below).

Service Rules: You will not (and you will ensure that your individual Users, such as employees and contractors, will not) engage in any of the following prohibited activities: (i) copying, distributing or disclosing any part of the Service in any medium, including, without limitation, by any automated or non-automated “scraping”, (ii) using any automated system, including, without limitation, “robots,” “spiders” and “offline readers,” to access the Service in a manner that sends more requests to the Cemify servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser, (iii) transmitting spam, chain letters or other unsolicited email, (iv) attempting to interfere with, compromise the system integrity or security of or decipher any transmissions to or from, the Service or the servers running the Service, (v) taking any action that may impose an unreasonable or disproportionately large load on our infrastructure, as determined by Cemify, (vi) uploading invalid data, viruses, worms or other software agents through the Service, (vii) collecting or harvesting any personally identifiable information, including account names, from the Service, (viii) using the Service for any commercial solicitation purposes, (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity, (x) using the Service in order to obtain information about Cemify, the Service or our customers for the purpose of competing with Cemify or otherwise replicating some or all of the Service for any reason, (xi) modifying, disassembling, decompiling or reverse engineering the Service or any part of the Service, (xii) accessing any content on the Service through any technology or means other than those provided or authorized by the Service, or (xiii) bypassing the measures we may use to prevent or restrict access to the Service, including, without limitation, features that prevent or restrict use or copying of Cemify Content or enforce limitations on use of the Service or Cemfiy Content. Without prior notice to you, we may change the Service, stop providing the Service or features of it, to you or to all of our Users generally or create usage limits for the Service. We may permanently terminate or temporarily suspend your access to the Service without notice and liability to you for any lawful reason, including, if in our sole determination, you violate any provision of this Agreement, or for no reason if lawfully permitted. Upon any termination, you will continue to be bound by any terms of this Agreement that by their nature extend beyond termination. Cemify will comply with all laws and regulations applicable to Cemify in its provision of the Service to you.

Authorization of Recurring ACH Debit: When you subscribe to a paid product that is part of the Service, you authorize us and our designated payment processors to store your designated bank account information and other related information. You authorize us to automatically debit all applicable charges for such paid product from your designated bank account via ACH debit on the date such charges become due, as described in the Individual Service Agreement or other applicable agreement for such paid product. You agree to follow National Automated Clearinghouse Association (NACHA) rules applicable to ACH transactions. You understand that this authorization to initiate ACH debit transactions will remain in full force and effect until we have received written notice from you by email at jason@coyotecreekdigital.com at least thirty days (30) in advance of the date the applicable charges for the paid product become due. You understand that because these are electronic transactions, these funds may be withdrawn from your designated bank account immediately. In the case of an ACH debit transaction that is rejected for insufficient funds, you understand that we may at our discretion attempt to process the debit in the amount of the applicable paid product again within thirty (30) days and we may separately impose a fee of $25 for each transaction returned for insufficient funds, as permitted by applicable law. You certify that you are an authorized user of your bank account and will not dispute these scheduled transactions with your bank so long as the transactions correspond to this Agreement, the Individual Service Agreement (defined below) and any other applicable agreement for such paid product.

2. Our Proprietary Rights

Except for materials such as logos, trademarks and service marks owned by our business partners or licensors, the Service and all materials in or accessible through the Service, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos and music (Cemify Content), and all related intellectual property rights in the Cemify Content, are the exclusive property of Cemify. Except as explicitly provided herein, nothing in this Agreement grants you a license in or under any of our intellectual property rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Cemify Content. The website and any Cemify Content on the website are solely for your personal, informational and non-commercial use. Use of the Cemify Content for any purpose not expressly permitted by this Agreement is strictly prohibited.

You may choose to, or we may invite you to, submit comments or ideas about the Service, including how to improve the Service (Ideas). By submitting any Ideas, you agree that you have the rights necessary to submit the Ideas and that Cemify is free to use and disclose the Ideas, including incorporating the Ideas in our Service, without restriction and without any additional compensation to you. By accepting your Ideas, we do not waive any rights to use similar or related ideas previously known to us, or developed by Cemify’ employees or obtained from sources other than you.

3. Use of Vendors & Contractors.

Cemify, in its sole discretion, may use vendors or contractors to help provide the Service to you, and we may change our use of vendors or contractors without notice to you. Cemify will remain responsible for the acts and omissions of such vendors and/or contractors.

4. Privacy and Data Security; Confidentiality

A. Cemify will implement and maintain commercially reasonable and industry standard administrative, physical, organizational and technical safeguards designed to prevent unauthorized use, access, processing, destruction, loss, alteration or disclosure of any Account Information and other information which you provide us through the Service and that we host (collectively, the Hosted Data). Such safeguards will include, at minimum, an industry standard information security program to safeguard your Hosted Data as well as procedures to help ensure that only those with a “need to know” have access to your Hosted Data. Cemify will also treat Hosted Data in accordance with the Cemify Privacy Policy. Cemify will promptly notify you upon becoming aware of an incident that has or potentially has compromised the security, confidentiality or integrity of your Hosted Data. Cemify will comply with all notification obligations that may be required by applicable state and federal laws and regulations.

You will transmit Hosted Data to us through the Service. To the extent you transmit Hosted Data to us by any other means, such as email, you will appropriately protect such Hosted Data. For clarity, as between you and Cemify, you own and retain all right, title and interest in and to Hosted Data. Upon termination of your use of the Service, Cemify will reasonably cooperate with you to facilitate a final export of your Hosted Data from Cemify’ systems and thereafter delete any and all remaining Hosted Data from the same, unless otherwise prohibited by law.

B. “Confidential information” means any information that should reasonably be understood to be confidential given the circumstances surrounding its disclosure. Each party will protect any Confidential Information of the other party which it may receive or otherwise be exposed to in the course of exercising its rights or performing its obligations hereunder. Each party will use the same care to protect the other party’s Confidential Information as it would use to protect its own similar information, but in no event less than reasonable care. Each party will use Confidential Information only for the purpose of fulfilling its obligations or exercising its rights under this Agreement. Neither party will disclose any Confidential Information of the other party to any third party without the prior written consent of the disclosing party.

5. No Professional Advice

If we provide you any professional information in the course of providing the Service, it is for informational purposes only and should not be construed as professional advice. No action should be taken based upon any such information without first seeking independent professional advice from a person who is licensed and/or qualified in the applicable area.

For clarity, you will be solely responsible for: (i) compliance with any and all applicable laws, rules and regulations affecting your business, and (ii) any use you may make of the Service to assist you in complying with any such laws, rules or regulations. The Service does not include any legal, regulatory, or accounting advice. You will retain and rely solely upon your own advisors with respect to such advice.

6. Indemnity

A. Your Indemnity. You agree to defend, indemnify and hold Cemify and its affiliated companies, and its and their employees, contractors, agents, officers and directors, harmless from and against any and all third party claims and pay all awarded damages, losses, liabilities, costs and expenses or settlement related thereto arising from: (i) your unauthorized use of and access to the Service, (ii) your violation of any term of this Agreement, (iii) your violation of any third-party right, including, without limitation, any right of privacy, any right provided by any labor or employment law, rule, or regulation or any intellectual property right, (iv) your violation of any applicable law, rule or regulation, (v) the Hosted Data, (vi) your gross negligence or willful misconduct, or (vii) any other party’s access to and use of the Service with your unique username, password or other appropriate security code. In order to receive the benefit of the foregoing indemnity, Cemify must give you prompt written notice of the claim and all reasonable cooperation, at your expense, in your defense and settlement of the claim.

B. Cemify Indemnity. Cemify agrees to defend, indemnify and hold you and your affiliated companies harmless from and against any and all third party claims and pay all awarded damages, losses, liabilities, costs and expenses or settlement related thereto arising from: (i) allegations that the Service or any portion thereof infringe(s) or otherwise violate(s) such third-party’s U.S. intellectual property rights, or (ii) Cemify’ gross negligence or willful misconduct. In order to receive the benefit of the foregoing indemnity, you must give Cemify prompt written notice of the claim, sole control to defend and settle such claim and all reasonable cooperation, at Cemify’ expense, in Cemify’ defense and settlement of the claim.

If a claim under 10.B.(i) is made or likely to be made, Cemify may: (x) procure a license to allow you to continue using the allegedly infringing component(s) of the Service, (y) modify the infringing component(s) to make them non-infringing, or (z) if (x) and (y) are not reasonably available, terminate your right to use the infringing component(s) effective immediately.

7. No Warranty

THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND AND CEMIFY EXPRESSLY DISCLAIMS ANY SUCH WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM CEMIFY OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, CEMIFY, ITS AFFILIATES AND ITS LICENSORS DO NOT WARRANT THAT THE CEMIFY CONTENT IS ACCURATE, RELIABLE OR CORRECT, THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION OR WILL BE UNINTERRUPTED OR SECURE, THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH YOUR USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH CONTENT.

CEMIFY DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND CEMIFY WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES, EXCEPT IN THOSE CIRCUMSTANCES IN WHICH CEMIFY EXPRESSLY AGREES TO BE A PARTY TO A TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.

FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE. THE DISCLAIMERS AND EXCLUSIONS UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

8. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CEMIFY, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS AND LICENSORS SHALL NOT BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING YOUR USE OF, OR INABILITY TO USE, THE SERVICE.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CEMIFY ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES OR INACCURACIES OF THE SERVICE, (II) PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICE, (III) THE CONTENT OF YOUR HOSTED DATA, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE, (V) ANY BUGS, VIRUSES, TROJAN HORSES OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY, (VI) ANY ERRORS OR OMISSIONS IN THE SERVICE OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE, AND/OR (VII) THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY. CEMIFY, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR DIRECT DAMAGES, IN THE AGGREGATE, EXCEEDING THE AMOUNT YOU PAID TO CEMIFY HEREUNDER IN THE 12 MONTHS PRECEDING THE CLAIM THAT GAVE RISE TO THE LIABILITY.

THE LIMITATIONS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION, AND WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF CEMIFY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE EXCLUSIONS AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

9. Governing Law, Arbitration, and Class Action/Jury Trial Waiver

A. Governing Law. You agree that the Service shall be deemed: (i) solely based in California, and (ii) a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than California. This Agreement shall be governed by the laws of the State of California, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Santa Clara County, California for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction, as set forth in the Arbitration provision below. You agree that Santa Clara County, California is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.

B. Arbitration. READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM CEMIFY. For any dispute with Cemify, you agree to first contact us at jason@coyotecreekdigital.com and attempt to resolve the dispute with us through good faith discussions. In the unlikely event that we have not been able to resolve a dispute after 60 days, we each agree to resolve any claim, dispute or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with this Agreement (collectively, Claims), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in San Francisco County, California, unless you and Cemify agree otherwise. If you are using the Service for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Service for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS, (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorneys’ fees and your reasonable costs for expert and other witnesses, and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing either you or Cemify from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation or other violation of either party’s confidential information or intellectual property or other proprietary rights.

C. Class Action/Jury Trial Waiver. WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU AND CEMIFY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.

10. General

A. Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of Cemify. Any attempted transfer or assignment in violation hereof shall be null and void.

B. Notification Procedures and Changes to the Agreement. Cemify may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, text message, written or hard copy notice, or through posting of such notice on the Service, as determined by Cemify in our sole discretion. Cemify reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as provided in the Service. Cemify is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. Cemify may, in its sole discretion, modify or update this Agreement from time to time, so you should review this page periodically. When we materially change this Agreement, we will update the ‘last modified’ date at the bottom of this page and notify you that material changes have been made to this Agreement. Your continued use of the Service after any such change constitutes your acceptance of this Agreement, as updated. If you do not agree to any of these terms or any future terms, you may not use or access the Service.

C. Entire Agreement/Severability. This Agreement, together with any amendments and any additional agreements you may enter into with Cemify in connection with the Service, shall constitute the entire agreement between you and Cemify concerning the Service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable.

D. No Waiver. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Cemify’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.

F. Force Majeure. Except for payment obligations, neither party shall be liable for a failure or delay in performing any of its obligations hereunder if, but only to the extent that, such failure or delay is due to causes beyond the reasonable control of the affected party.

G. Contact. Please contact us at jason@coyotecreekdigital.com with any questions regarding this Agreement.