CHERISHED PIXELS PTY LTD TERMS AND CONDITIONS
1) GENERAL
a) Cherished Pixels Pty Ltd ACN 676 103 129 (CP) is in the business of supplying to customers a Plaque containing a unique engraved QR Code providing access to a Platform for uploading memories of deceased loved ones in the form of the Material.
b) These terms and conditions will apply to all Products and/or services provided by CP and will govern the relationship between CP and the Customer (and anyone who the Customer authorises to use the Product) in respect of every Order (as defined hereunder) unless otherwise agreed between the parties.
c) By submitting an Order on the Platform or by purchasing the Product through a third party, the Customer agrees to be bound by these terms and conditions.
d) By using or continuing to use the Platform and/or Product, you agree to be bound by this Contract. If you do not agree to these terms, then do not use the Platform or Product.
2) DEFINITIONS
a) Business Day means any day other than a Saturday, Sunday or public holiday in New South Wales.
b) Code means a QR code linked to a URL specific to the Customer, which URL is directed to the Customer Domain.
c) Contract means these terms and conditions, as amended from time to time, which constitute a legally binding agreement between the Customer and CP.
d) Customer means the person submitting an Order to purchase Products and/or services from CP.
e) Customer Domain means the domain name allocated to the Customer by CP (or CP’s nominated service provider) for hosting the Platform.
f) CP Website means cherishedpixels.com.au (as may be updated by CP from time to time).
g) Deceased means the Customer’s deceased loved one that the Customer wishes to commemorate.
h) Event of Default means where CP:i) has a receiver, receiver and manager, administrator, liquidator, provisional liquidator or external controller appointed;
ii) becomes bankrupt, insolvent or wound-up;
iii) has a resolution passed for winding-up, commits an act of insolvency or bankruptcy; or
iv) enters in to any scheme or arrangement with its creditors.
i) Force Majeure Event means any event beyond the reasonable control of a party that occurs without the fault or negligence of that party and which could not have been reasonably prevented or overcome by that party, including an act of God, fire, storm, flood, earthquake, explosion, accident, war, rebellion, insurrection, sabotage, terrorism, strikes, civil disturbance, lock-outs, emergency, epidemic, pandemic, quarantine restriction, act (including laws, regulations, disapprovals or failure to approve) of any government or governmental agency whether national, municipal or otherwise.
j) Hosting Services means the services required for hosting the Customer Domain, carried out by an external provider.
k) Mater ia l means images , text, photographs, links to YouTube videos and audio files in relation to the Deceased, uploaded by the Customer onto the Platform.
l) Order means an order placed by the Customer for the purchase of the Product from CP, whether on the CP Website, through a third party or otherwise.
m) Platform means the website provided by CP for the purpose of uploading the Material, hosted on the Customer Domain.
n) Plaque means an anodised aluminium tag provided to the Customer which contains an engraving of the Code.
o) Payment means payment of any amount due by the Customer to CP.
p) Premises means PO box 36 Leppington NSW, 2179.
q) Product means:
i) the Code;
ii) the Plaque; and
iii) access to the Platform which includes Hosting Services for the Term.
r) Term means 12 months from the date of purchase of the Product by the Customer.
3) REGISTRATION AND ORDERS
a) In order to purchase the Product on the CP Website, the Customer is required to submit an Order on the ‘Shop Now’ page of the CP Website following which the Customer will be prompted to create a user account.
b) In setting up a user account, the Customer must:
i) accurately complete their current information;
ii) select an email address that will be their username used to access the Platform;
iii) maintain and update information to keep the account accurate, complete and current;
iv) select a unique password that is specific to the Customer;
v) safeguard their username and password and not allow anyone else to use that username;
vi) immediately notify CP of any unauthorised use of the Customer ’s username and/or password or any breach of security as soon as the Customer is made aware; and
vii) authorise CP to assume that any person using the Platform with the Customer ’s username and/or password is either the Customer or an individual authorised to act for the Customer.
c) I f the Customer prov ides any inaccurate, false or incomplete information (or fails to keep such information current), CP has the right to terminate the user account and access to the Platform.
d) When placing an Order on the Platform, the Customer confirms and acknowledges that it has carefully checked the Order and is satisfied with the Order.
4) CANCELLATION
a) The Customer is entitled to cancel the
Order within eight (8) hours from the time the Customer receives email confirmation from CP that the Order has been submitted (Cancellation Window) by notifying CP by email at hello@cherishedpixels.com.au that it wishes to cancel the Order.
b) The Customer shall at no time cancel the whole or part of any Order placed outside of the Cancellation Window without CP’s prior written approval.
c) Subject to clause 8, the Customer agrees that any Payment made by the Customer to CP is non-refundable and CP is not required to reimburse the Customer for the whole or any part of the Payment whatsoever.
5) TERM
a) The parties agree that the Customer is granted full access to the Platform for the duration of the Term in accordance with the terms of this Contract.
b) The Customer agrees that CP does not and cannot guarantee the Customer’s continued use of the Platform and provision of Hosting Services beyond the Term.
6) THIRD PARTY SUPPLIERS
a) Supply of the Product is subject to agreements that CP has with third-party suppliers.
b) The Customer agrees to comply with all requirements and restrictions that third-party suppliers may implement on the Customer directly or indirectly through CP.
7) PAYMENT
a) CP reserves the right to vary the price
of the Product and/or its services from time to time in its absolute discretion, in which case, CP will update the pricing displayed on the Platform as soon as practicable.
b) Any Payments not paid when due, including amounts owing via any third-party payment platforms, including (without limitation) ‘buy now, pay later’ providers, will be subject to interest calculated at the rate that is 5% per annum above the cash rate last published by the Reserve Bank of Australia and will be calculated on a daily basis, compounding monthly.
c) To the fullest extent permitted by law, the Customer agrees to indemnify CP for any expenses, costs or disbursements incurred by CP in recovering any outstanding Payments including debtor collection fees, such indemnity to be limited to the amount of $2,000 plus GST.
d) If the Customer fails to comply with this clause 7, CP reserves the right to revoke the Customer’s ability to use the Product (including revoking the Customer’s access to the Platform and /or Customer Domain and rendering the Code non-functional) and CP may treat such failure as a fundamental breach of this Contract and treat the Contract as repudiated.
e) The Customer cannot set-off against any Payment any counterclaims that the Customer may have against CP.
f) All prices quoted are in Australian dollars and inclusive of GST, unless expressly specified otherwise.
g) If requested by the Customer, CP agrees to provide the Customer with a tax invoice showing the amount of GST payable.
8) DELIVERY
a) Subject to clause 17, once CP has received the Payment in cleared funds, CP will as soon as practicable (and in any event within 7-10 Business Days) arrange for the delivery of the Plaque to the Customer to an address in Australia or New Zealand.
b) CP will use its best endeavours to ensure that the Plaque is appropriately packaged to minimise any damage to the Plaque during transportation.
c) If the Plaque is damaged during transit to the Customer and the Customer seeks a replacement Plaque or refund,
the Customer must return the Plaque to the Premises.
d) Once CP receives the returned P laque, CP will under take an assessment of the Plaque and CP will, acting reasonably, either:
i) provide a replacement Plaque to the Customer at no cost to the Customer;
ii) issue a refund to the Customer; or
iii) find the Plaque to be in good order and condition and return the original Plaque to the Customer.
e) CP may, from time to time, make information available to the Customer relating to availability, dispatch and delivery dates in respect of the Product. The Customer agrees that any such information is only an estimate and that CP cannot guarantee availability of the Product or delivery times.
f) Subject to clause 17, the Customer agrees that delivery of the Plaque will be subject to the standard delivery t imes of Austral ia Post or the designated delivery service appointed by CP.
g) CP will not be liable for any loss suffered by the Customer where the Plaque is not delivered in accordance with availability, dispatch or delivery dates provided by CP.
h) The Customer agrees that where the Plaque is stolen, misplaced or lost after delivery to the Customer’s address, the Customer is solely responsible for all costs and expenses associated with re-producing and re-shipping a replacement Plaque.
i) If the Customer does not receive the Plaque due it being lost or misplaced by Australia Post (or any other designated delivery service appointed by CP) and the Customer can prove this to the satisfaction of CP, CP may in its absolute discretion deactivate the original Code and re-produce and re-ship a replacement Plaque at CP’s cost.
9) INSPECTION
a) The Customer agrees to immediately inspect the Plaque and test the Code on delivery of the Plaque.
b) In the event the Customer notices a material defect on the Plaque which renders the Plaque and/or Code non-funct ional , the Customer must immediately give CP written notice containing photo evidence of any such defect.
c) The Customer agrees that its failure to notify CP in writing of any defects within 7 Business Days from the date of delivery, means that the Customer is deemed to have received the Plaque and/or Code in good order and condition.
10) PRODUCT USE
a) The Customer agrees to only upload Material in a format that is acceptable on the Platform, which includes png, jpg, jpeg, gif and webp.
b) The Customer agrees that each Product may only be used in respect of a singular Deceased and that additional Products mustt be purchased if the Customer wishes to commemorate more than one Deceased individual.
c) The Customer agrees that title and risk in the Product passes to the Customer when the Plaque has been delivered to the Customer’s address.
d) The Customer acknowledges that the upload of photographs and images on the Platform will be subject to limitations from time to time, presently being a maximum of 24 photographs.
e) The Customer is entitled to vary the Material on the Platform from time to time in accordance with the terms and conditions contained in this Contract and subject to any relevant terms and conditions applicable to the Customer Domain or Platform.
f) The Customer must evaluate and bear all risks associated with the use of the Product and the Platform including reliance on the accuracy, completeness or usefulness of the Product.
g) The Customer agrees that Hosting Services on the Platform and YouTube are provided by an external provider and that CP is disclaimed from any obligations, liabilities and responsibilities in respect of any errors wi th the Product that may be associated with the Hosting Services.
h) CP makes no representation and gives no warranty regarding the Customer’s access to the Platform. Due to the nature of the internet and third-party software, the Customer may experience errors, outages, poor network performance and other such issues.
i) Due to regulatory or technical restrictions, the Customer may not be able to access the Platform from every location in the world and the Customer should verify access prior to accepting this Contract.
j) Notwithstanding that CP will use its reasonable endeavours to provide a functional Platform, the Customer accepts that CP cannot guarantee that:i) the Customer’s usage requirements will always be met;
ii) the Customer will have uninterrupted and error-free access to the Platform;
iii) the Customer’s usage will be uninterrupted or error free;
iv) the Customer Domain can be hosted by an alternative hosting service provider;
v) the Platform or servers that operate the Platform are free of viruses or other harmful components; or
vi) the Platform is immune from being compromised by a third party such as through cyber-attacks, hacking, security risks, security breaches and leaked content.
k) While CP will use its reasonable endeavours to ensure that information on the Platform remains accurate and current, CP does not make any warranties or representations about the accuracy and cur rency o f information on the Platform.
11) INSTALLATION AT CUSTOMER’S RISK
a) The Customer agrees that the installation and/or application of the Plaque onto any headstone, urn and/or any other surface is entirely at the risk of the Customer and outside the scope of services provided by CP.
b) The Customer agrees that any damage caused to the Plaque, headstone, urn or any other object as a result of the Customer’s installation and/or application of the Plaque (including any installation and/or application carried out by a representative or agent of the Customer) is the Customer’s sole responsibil ity and any costs or expenses incurred by the Customer in relation to such damage will be borne by the Customer.
c) To the fullest extent permitted by law, CP disclaims any responsibility and liability in respect of any errors, omissions and/or damage arising from, or in connection with, the installation and/or application of the Plaque onto a headstone, urn or any other surface.
12) CUSTOMER ACKNOWLEGEMENTS
a) The Customer acknowledges that to
the fullest extent permitted by law:
i) CP is responsible for providing the
Customer with the Product and is not responsible for any Hosting Services or any other third-party services;
ii) it is the Customer’s sole responsibility to enable the privacy setting in respect of the Product if the Customer wishes to ensure that the Material is only accessible by those who have been granted access by the Customer;
iii) the Customer owns the intellectual property rights of the Material and upon termination of this Contract pursuant to clause 16, may deal with the Code and Platform as it deems appropriate, including transferring its Code, Customer Domain and Platform to an alternative host provider;
iv) upon termination of this Contract pursuant to clause 16, the
Customer will not be able to access the Platform;
v) CP reserves the right to cancel an Order for which Payment has already been received by CP and if such cancellation occurs before delivery of the Product, CP will issue the Customer a refund;
vi) C P is not responsible for reviewing, filtering and/or vetting any Material uploaded onto the Platform;
vii) the Code will be made available on Plaques which may be displayed in a public setting and therefore visible to members of the public;
viii) unless the privacy setting is enabled, members of the pubic may scan the Code and be able to view the Customer’s compilation of Material;
ix) CP is not responsible and/or liable for any technical difficulties arising from, or in connection with, the Platform which are beyond CP’s control;
x) an external third-party provider (and not CP) is responsible for providing all technical support associated with the Product, the Cus tomer Domain and the Platform;
xi) where technical difficulties occur, Customers are responsible for contacting Ventraip Australia support directly;
xii) if CP is made aware that the Customer has failed to comply with sub-clause 13(a) (v iii) , CP reserves the right to revoke the Customer’s ability to use the Product (including revoking the Customer’s access to the Platform and rendering the Code and Customer Domain non-functional) and CP may treat such failure as a fundamental breach of this Contract and treat the Contract as repudiated.
13) CUSTOMER WARRANTIES
a) The Customer warrants that:
i) it will not on-sell, re-sell or otherwise distribute the Product to any third party in exchange for payment or otherwise. For the avoidance of doubt, this sub-clause does not apply to circumstances where the Product has been gifted to a third party;
ii) it will always follow CP’s oral and/or written instructions as to the storage, installation, application, use or maintenance of the Product;
iii) it owns the Material and/or has the relevant rights, authority and permissions (including the consent of the relevant family members of the Deceased) to access the Material, deal with the Material and upload the Material onto the Platform;
iv) where the Customer uploads a link to a YouTube video, it will at all times comply with YouTube’s guidelines and will indemnify CP for the Customer’s failure to comply in respect of same;
v) it will use the Platform in a responsib le and reasonable manner;
vi) it will at all times comply with the user guidelines of the relevant host in connection with the Hosting Services;
vii) it will not use the Platform for any illegal, improper or unauthorised purpose and will comply with all laws applicable to the Customer’s use of the Platform;
viii) it will not upload any Material or content onto the Platform that involves nudity, pornography, acts of terrorism, abuse, obscene acts, illegal substances, high impact violence or that breaches any laws within Australia and/or brings, or could bring, CP into disrepute;
ix) subject to sub-clause 13)a)i), it will not duplicate or re-distribute the Product, including in an electronic format; and
x) it will not do anything to compromise the integrity and/or functionality of the Product.
14) CP WARRANTIES
a) CP makes no warranty that the Product will not infringe the rights of any third party.
b) CP makes no warranty that the Customer has the relevant permissions and/or has obtained the consent of the Deceased’s relevant family members to purchase, and deal with, the Product and the Material and CP disclaims any liability in respect of the same.
c) CP makes no warranty that the Product will be suitable to enable the Customer to achieve any particular purpose even when such purpose has been notified to CP.
d) CP makes no warranty for any use of the Product by any third party who has obtained the Product directly or indirectly from the Customer and to the fullest extent permitted by law, the Customer hereby indemnifies CP from any claims against CP arising from or relating to any use of the Product.
e) If it is the view of CP or a Court of competent jurisdiction that any defect or fault exists in the Product within a period of twelve (12) months from delivery of the Product, CP shall at its option either:i) repair or replace the Product (or the defective part); or ii) refund such proportion of the monies paid to CP by the Customer for the Product as is reasonable.
f) The Customer accepts that the express benefits of the warranty granted under this clause 14 shall be the Customer’s sole remedy for any breach of warranty expressed or implied whether statutory or otherwise in respect of the supply of the Plaque under this Contract.
g) CP shall only be liable for a breach of any warranty in this Clause 14 if:i) the Customer gives written notice
of the alleged breach to CP within 7 Business Days of the time when the Customer discovers or ought to have discovered the breach and in any event no later than 7 Business Days after the expiry of the warranty period stated in clause 14(e);
ii) C P is given a reasonable opportunity after receiving such notice to examine the relevant Plaque and the Customer agrees to (if asked to do so by CP) send the Plaque to CP for CP to undertake an evaluation;
iii) the Customer does not make any further use of the relevant Plaque after giving such notice;
iv) the defect did not arise because the Customer failed to follow CP’s oral and/or written instructions as to the storage, insta l lat ion, application, use or maintenance of the Plaque.
15) INDEMNITY
To the fullest extent permitted by law, the Customer indemnifies CP against all suits, actions, claims, demands, expenses, losses, damages, costs, proceedings or any other liability brought against CP by a third party particularly in respect of any breach or these terms and conditions and/or infringement of, or alleged infringement of, any patent, intellectual property or similar rights associated with the Product.
16) TERMINATION
a) Following the Term, either party may terminate this Contract with 14 days’ written notice to the other party.
b) The Customer agrees that if CP ceases to operate, if an Event of Default occurs and/or the Hosting Services are no longer available, the Customer may no longer have access to the Platform and/or Customer Domain and may lose access to its data. Where this occurs and to the fullest extent permitted by law, the Customer releases CP from all responsibility and liability in respect of continued use of the Product.
c) CP reserves the right to terminate the Customer’s user account, disable the Code and revoke access to the Platform and/or Customer Domain if:
i) the Customer breaches any of the terms and conditions contained in this Contract;
ii) the Customer fails to comply with any applicable laws within Australia; or
iii) CP reasonably concludes that the Customer’s conduct adversely affects, or could adversely affect, CP’s reputation.
d) Unless determined otherwise by CP in its absolute discretion, upon termination the Customer may download and/or export a copy of the Material and their user account data from the Platform.
e) The Customer acknowledges and agrees that following termination, CP disclaims all responsibility, obligations and liabilities in respect of maintenance, accessibility and/or functionality relating to the Product and/or Customer Domain.
17) FORCE MAJEURE
If a Force Majeure Event occurs:a) the obligations of a party under this Contract will be suspended to the extent that it is wholly or partially precluded from complying with its obligations under these terms and conditions as a result of the Force Majeure Event; and
b) a party affected by a Force Majeure Event must notify the other party as soon as practicable of the event and the extent to which that party is unable to comply with its obligations.
c) either Party may terminate this Contract upon written notice to the other party if the Force Majeure Event lasts more than ninety (90) days or renders the continuation or completion of this Contract impossible. In such event the parties shall, subject to the provisions of clause 19, be released from all obligations under this Contract and the Customer shall pay to CP within seven (7) days all outstanding Payments owing to CP under this Contract at the date of termination.
18) LIMITATION OF LIABILITY
a) The following provisions set out the entire and maximum financial liability of CP to the Customer in respect of:
i) any breach of this Contract; and
ii) any representation, statement or tortious act or omission including negligence arising under or in connection with this Contract.
b) All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Contract.
c) Nothing in this Contract shall exclude or limit the liability of CP for:
i) fraud committed by CP (including fraudulent misrepresentation); or
ii) any other matter which it would be illegal, or in breach of any statutory provision, for CP to exclude or attempt to exclude its liability for.
d) Subject to clause 14, CP’s aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, ar is ing in connect ion wi th the pe r f o rmance o r con temp la ted performance of this Contract shall be limited to the amount paid by the Customer for the Product ordered by the Customer.
e) Subject to sub-clause (c) and to the fullest extent permitted by law, CP shall not be liable to the Customer for:
i) any, indirect, special or consequential loss, damage, costs, expenses or other claims whatsoever; or
ii) any economic loss (including loss of profit , loss of business, depletion of goodwill or like loss); or
iii) any loss, damage or liability to the extent caused by the negligence, wilful misconduct or other fault of the Customer, its employees, agents or contractors or a breach by the Customer of this Contract;
in each case howsoever caused, including without limitation negligence or breach of statutory duty or misrepresentation, arising out of or in connection with this Contract.
19) CONFIDENTIALITY
a) Unless authorised in writing, the Customer agrees not to disclose the terms and conditions of this Contract nor information of a confidential or
proprietary nature including but not limited to any and all technical information, data, drawings, process information and know-how and designs and any information concerning products, customers, business accounts, financial or contractual arrangements or other dealings, transactions or affairs, reports, recommendations, and in whatever form whether in writing, given orally or contained in an electronic format, and which is either marked as confidential or otherwise designated at confiedential (Confidential Information) except where the Confidential Information is:i) required or disclosed by law or an order of a Court of competent jurisdiction;
ii) in the public domain and disclosed in trade or public publications, reports, analysis or studies; or
iii) disclosed prior to the date of this Contract.
b) Nothing herein shall prevent the disclosure of information by the Customer to the extent required by applicable law or by the regulations of any stock exchange or regulatory authority to which the Customer is subject or pursuant to any order of Court or other competent authority or tribunal.
20) VARIATION
CP reserves the right to vary its terms and conditions with its customers from time to time and agrees to promptly notify customers of is latest terms and conditions.
21) NOTICE
The Customer agrees that it shall be deemed to have notice of any change to this Contract and be bound by any subsequent versions of the terms and conditions of this Contract as they appear on the CP Website upon CP providing written notice to its customers of its latest terms and conditions.
22) PRIVACY POLICY
a) By creating a user account on the CP Website, the Customer agrees that it will be providing personal information to CP.
b) By using the CP Website and/or Platform, the Customer agrees to:i) grant CP consent to use the Customer’s personal information in accordance with CP’s privacy policy; and
ii) acknowledge and agree that CP’s privacy policy forms part of this Contract.
c) To view our privacy policy, please click here.
23) GOVERNING LAW AND JURISDICTION
a) These Terms shall be governed by and construed in accordance with the laws of New South Wales.
b) The Customer hereby irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of New South Wales and courts of appeal from there.
24) NO WAIVER
Failure by either party to enforce, at any time or for any period, any one or more of the terms or conditions within this Contract shall not be a waiver of them or of the right at any time subsequently to enforce all terms and conditions within this Contract.
25) SEVERABILITY
Any term that is unenforceable will be severed unless the term is unenforceable because it is declared to be an unfair contract term, in which case it shall, at CP’s election, be deemed to be amended to the minimum extent required to prevent it from being an unfair contract term.
26) ENTIRE AGREEMENT
This Contract constitutes the entire agreement between CP and the Customer in connection with its subject matter and neither party has relied on any representation or promise except as expressly set out in this Contract.