Date Terms last Modified: July 21, 2017
IMPORTANT: Please review the following terms and conditions carefully. These Website Terms and Conditions (these “Terms”) are a legally binding contract between you (“you” or “your”) and Spirit Pieces, LLC ("Spirit Pieces", "our", "we" or "us") pertaining to the access and use of the online services offered, and all products, information, content, media, printed materials, and online or other electronic documentation accessible from the website www.spiritpieces.com or any sub-domains thereof or other social media accounts and websites that may be operated, controlled or managed by or for us (collectively, the "Website"). If you are entering into these Terms on behalf of a another person, company or other legal entity, you represent that you have the legal authority to bind such legal entity to these Terms, in which case “you” shall also include such entity.
1. Acceptance of Terms for Use; Amended Terms.
1.2 Amended Terms. We reserve the right to amend these Terms at any time by reasonable notice including, without limitation, by posting amended terms on the Website and such amended terms shall be binding upon you. You agree to review this Website and the Terms periodically to ensure that you are aware of any modifications. Your continued use of the Website following the posting of amended terms also constitutes Acceptance of all amended Terms. The amended Terms supersede all previous versions of the Terms. For this reason, we encourage you to review these Terms each time you access or use the Website and to print out a copy for your records. If you do not agree to any of the Terms, as now existing or later amended, please immediately exit this Website and do not further access, view this Website, order any Services, or use any features or Materials (as defined in Section 5.1).
2. License Grant. We hereby grant to you a limited, personal, nonexclusive, revocable and nontransferable license (without the right to sublicense) to access and use the Website and the Services subject to these Terms. Permission to reprint or electronically reproduce any information or Materials in whole or in part for any other purpose is expressly prohibited, unless prior written consent is obtained from us. You may contact us at the email address in Section 15 at the end of these Terms. You acknowledge that any proprietary information, Materials and intellectual property embodied in the Website are not and have not been licensed to you under these Terms. In addition, you acknowledge that the HTML code that we create to generate the pages of the Website is protected by copyright laws and is not licensed to you. All rights not expressly granted herein are reserved by us.
3. Website Services; Policies. We may offer from time-to-time certain cremains-infused products and non-infused products for sale and order on or through the Website (including, but not limited to, orbs, stones, paperweights, pendants, urns etc.) (collectively, the "Services"). The following terms pertain to your ability to partake of and use the Services made available by us on or through the Website:
3.1 Availability of Service. We reserve the right to establish general practices and limits concerning the Services at any time and may modify such practices and limits at our sole discretion. You agree that we shall have no responsibility or liability to you or any third party for the modification, suspension, discontinuance or failure to deliver any Services to you, regardless of whether such failure was due to the established practices or limits of the Services or as a result of error, intentional misconduct, or negligence of us. We may update the content on this Website from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Website may be out of date at any given time, and we are under no obligation to update such material.
3.2 Submission Requirements. In consideration of your use of the Website and the Services, you agree to provide current, accurate, true and complete information about yourself including, but not limited to, proper order details and shipping address information, and when requested by us to promptly update such information to be current, accurate, true and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or we have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we reserve the right to suspend or terminate your access and refuse any and all current or future use of the Website or the Services or any portion thereof.
3.3 Pricing. Pricing, retail policies and shipping charges applicable to the purchase of products are as set forth on the Website, and are incorporated into these Terms by reference. All costs and fees are quoted in U.S. dollars. We may in our sole discretion add, delete or change some or all of the prices of our products, services or shipping charges at any time without notice.
3.4 Typographical Errors. In the event any of our products or services are listed on the Website at an incorrect price due to typographical error, we reserve the sole right to refuse or cancel any orders placed for such incorrectly priced and listed products or services. We have the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit card charged. If your credit card has already been charged for such purchases and we cancel your order, Spirit Pieces will issue a credit to your credit card account in the amount of the incorrect price.
3.5 Naturally Occurring Variations; Handmade Process. All of our memorials are handmade on demand. As a result, all such items will be generally similar but will vary in exact sizing, color distribution, bubbles and ash placement. Therefore, these handmade items will not be identical to the images displayed on our Website or in any of our posted videos due to naturally occurring variations. We emphasize, and you hereby acknowledge and agree, that any and all variations in sizing, color distribution, bubbles and ash placement and any other characteristics occurring in these products do not, and shall not, constitute a defect in the quality or appearance of the product, and you hereby acknowledge by placing any order with us via the Website that you unconditionally accept such naturally occurring variations.
3.6 Order Acceptance Policy. The receipt of an order confirmation in any form from Spirit Pieces does not, in all instances, constitute a final sale and Spirit Pieces retains any and all rights to request additional information and/or verification from you prior to accepting orders. Spirit Pieces, in its sole discretion, may accept or decline to accept any and all orders for any reason or no reason at all. Spirit Pieces does not discriminate on the basis of race, religion, sexual orientation, gender or otherwise in accepting and/or declining orders. Upon acceptance of your order, a collection kit will be sent to the designated recipient. Upon receipt of the collection kit by our vendors or artists, order information such as memorial count, sizing, style and color is deemed as final and cannot be changed without written approval of Spirit Pieces. Any changes you request to your order may result in additional fees.
3.7 Shipping Policy; Delivery Dates.
3.7.1 Shipping Policy. You acknowledge that any specific delivery windows and timeframes provided are to be used as general guidance and are not meant to provide any specific delivery timeframe obligations by Spirit Pieces. Spirit Pieces offers priority shipping via USPS of completed orbs to our customers. It is solely your responsibility to provide us accurate shipping information. You hereby acknowledge and agree that all expenses, delays, and lost or damaged shipments related to incomplete or invalid addresses or other shipping information will be borne solely by you. If any products are returned and reshipped, all additional shipping costs is your sole expense and responsibility. Further, you hereby acknowledge that any and all damage or loss of cremains you provide or memorials shall be the sole responsibility of the shipper and not Spirit Pieces. If any cremains are left over from the process of incorporation, you will be given a choice to have them incorporated into additional memorial(s) at your cost, scattered at a local scenic locale or shipped back to you (additional shipping charges will apply and are your responsibility). If the shipper fails to deliver a collection kit and/or memorial(s) for whatever reason and it is returned sender not found/available, and then misplaced upon return shipment by the shipper, Spirit Pieces is not responsible for the cost or emotional pain of such lost or misplaced shipments. In the case of lost or misplaced shipments, you are responsible for resolution with shipper.
3.7.2 Guaranteed Delivery Dates. In the event that a shipper (e.g., UPS, FedEx, USPS, DHL) has missed a "guaranteed" delivery date, (only air shipment times can be guaranteed), any extra shipping amount paid by you will be refunded. Notwithstanding, however, UPS, FedEx, USPS, DHL will not refund shipping charges due to weather delays or events beyond their control. If an adult signature is required and there is no one to sign for it upon a first attempt, there will be no refunds. You will be assessed a 10% restocking free for all products returned because of a missed "guaranteed" delivery date. See www.ups.com, www.fedex.com, www.usps.com, www.dhl-usa.com for their policies regarding "guaranteed" delivery. Exceptions such as weather and holidays apply for UPS, FedEx, USPS, and DHL. In some rare instances (shipping to Hawaii, Alaska, Puerto Rico, costal Islands around the US, Canada, etc.) our US Next-Day air rate and US 2-Day Air rate may not cover actual shipping charges and we will contact you to let you know your options and costs involved.
4. Acceptable Use Policy for the Services & Website.
You will not, and will not allow or authorize others to, use the Services or the Website to take any actions that: (i) infringe on our or any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (ii) violate any applicable law, statute, ordinance or regulation (including those regarding export control); (iii) are defamatory, trade libelous, threatening, harassing, invasive of privacy, stalking, harassment, abusive, tortuous conduct, hateful, discrimination based on race, ethnicity, gender, sex or disability, pornographic or obscene; (iv) involve interference with the Website or any servers or networks connected to the Website or disobey any requirements, procedures, policies or regulations of networks connected to the Website, or attempt to breach the security of or disrupt Internet communications on the Website (including without limitation accessing data to which you are not the intended recipient); (v) impersonate any person or entity, including, without limitation, one of our or other's officers or employees, or falsely state or otherwise misrepresent your affiliation with a person or entity; or (vi) attempt to gain access to other users' accounts or otherwise mine information about other users or the Website.5. Ownership; Covered Communications.
5.1 Ownership. You acknowledge and agree that, unless otherwise indicated, that as between you and us, all title to and ownership of the Website, Services and intellectual property rights thereto including, without limitation, copyrights, Website content and “look and feel”, documentation (printed and electronic), data, databases, Confidential Information, photographs, images, text, graphics, logos, icons, images, videos, sound recordings, audio/visual clips and designs (collectively, the “Materials”) and any derivatives, improvements, enhancements or extension of, and any feedback or suggestions to, any of the foregoing, conceived, reduced to practice, or developed whether alone or jointly with others by us, you or any third party, are and will remain solely vested in us at all times and for all purposes. Additionally, we own all of the trademarks, service marks, slogans and logos and goodwill associated with the foregoing throughout the world whether owned by us or licensed to us from a third party (collectively, the "Marks") used and displayed on the Website, unless otherwise noted. Unless otherwise indicated, no information or material from the Website (including, without limitation, the Marks), may be copied, reproduced, printed, displayed, republished, downloaded, posted, digitized, translated, modified, transmitted, distributed, used or commercially exploited in any way without our explicit consent. Nothing in these Terms constitutes a waiver of any rights under copyright laws or any other federal, state or local law, regulation, ordinance or treaty. Nothing in these Terms should be construed as conferring by implication, estoppel or otherwise, any license or right under or to any intellectual property right including, without limitation, any patent, trademark, service mark or copyright of ours or any third party.
5.2 Currency of Materials. While we endeavor to keep the Materials on the Website current, the Materials on the Website should not be relied upon to be fully comprehensive or error free and in the case of images of exemplary designs they are not intended to be a guarantee of the exact duplicates of any products you may order.
5.3 Consumer Review Fairness Act of 2016. As it pertains to this paragraph, “Covered Communication” means any written, oral or pictorial (including pictures, photographs, video, illustrations and symbols) review, performance assessment of, or other similar analysis of, including by electronic means, the goods, services or conduct of us by you. The Consumer Review Fairness Act gives you certain protection against “gag” clauses prohibiting the disparagement of a service provider’s service offerings. The parties acknowledge and agree that, notwithstanding anything to the contrary herein, no clause in these Terms shall be constructed to (i) prohibit or restrict the ability of, or impose a penalty or fee against, you from engaging in any Covered Communication or (ii) transfer or require you to transfer to us any intellectual property rights in any otherwise lawful Covered Communication other than the non-exclusive license set forth in this clause; provided however that: (1) the foregoing shall not affect (A) any duty of confidentiality imposed by law, (B) any civil actions for defamation, libel or slander or any similar causes of action, or (C) our right to remove or refuse to display publicly on an Internet website or webpage owned, operated or otherwise controlled by us any Covered Communication that contains the personal information or likeness of any person, or is libelous, harassing, abusive, obscene, vulgar, sexually explicit, or is inappropriate with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic, or is unrelated to the goods and services offered by or available at our Internet websites or webpages; and (2) the foregoing shall not apply to the extent that the clause in these Terms prohibits disclosure or submission of (A) trade secrets or commercial or financial information obtained from any person and considered privileged or confidential, (B) personnel and medical files and similar information, the disclosure of which would constitute a clearly and unwarranted invasion of personal privacy, (C) records or information compiled for law enforcement purposes, the disclosure of which would constitute a clearly and unwarranted invasion of personal privacy, (D) content that is unlawful or otherwise meets the requirements of subsection (2)(C) above, or (E) content that contains any computer viruses, worms, or other potentially damaging computer code, processes, programs, applications or files. You hereby grant us and our successors and assign, a non-exclusive, perpetual, irrevocable, fully-paid, royalty-free right to copy, use, reproduce, edit, display, or commercially exploit any Covered Communication, in whole or in part, in any media (including Internet) whether now know or hereafter created, without the requirement of an accounting or prior written notice to you by us. 6. Third Party Websites.
From time-to-time, this Website may contain links to third-party websites. In the event we do provide such links to or information about third-party websites, products and services we do so only for your convenience and informational purposes. We do not control such websites, and are not responsible for the content and performance of these websites or for your transactions with them. Unless expressly stated otherwise, we do not investigate, verify, monitor, endorse or recommend any third-party website, product or service or make any representation or warranty, either expressed or implied, about any third-party website, product or service or the accuracy, reliability or completeness of information about them. Prior to accessing a third-party website or purchasing or using any third-party product or service, we recommend that you investigate and evaluate whether the third-party website, product or service meets your needs. You acknowledge and agree that we are not responsible for any damages or losses caused or alleged to have been caused by your use of any third-party websites, or from the products, content, material or information presented by or available through those websites. 7. Term & Termination.
These Terms are effective from the date that you first access the Website and continues in effect until terminated in accordance with these Terms. We may terminate your access to the Website or the Services at any time for any reason. Cause for such termination shall include, but not be limited to: (i) breaches or violations of these Terms; (ii) requests by law enforcement or other government agencies; (iii) a request by you (self-initiated account deletions); (iv) discontinuance or material modification to the Services (or any part thereof); (v) unexpected technical or security issues or problems; (vi) fraudulent or illegal activities performed by or on behalf of you in connection with the Services or the Website; (vii) discontinuance of the Services as a whole; (viii) a statement by you that you no longer agree to these Terms, or a statement by you otherwise requesting termination of your access to the Services; and/or (ix) any other reason considered by us to be in our best interest.8. Limitation of Liability; Indemnification.
8.1 Limitation of Liability. In no event and under no circumstances shall we or any contributors of information to the Website or our sponsors, vendors, artists, licensors or authorized representatives be liable to you or any third party for special, incidental, punitive or consequential damages (including without limitation any loss of profits, lost savings, or loss of data) arising out of your (or any authorized user's) or any unrelated party's use or inability to use the Services and/or the Website, or your (or any authorized user's) or any unrelated party's reliance or use of information, products or Services provided on or through the internet, or that result from mistakes, omissions, interruptions, loss of cremains, errors, defects, delays in shipment, service or transmission or any failure of performance of the Services and/or the Website, even if we, or any of our authorized representatives, have been advised of the possibility of such damage and even if the remedies stated in these terms fail of their essential purpose. You and each user of the Website and/or Services expressly releases us from, any and all liability whatsoever for any controversies, claims, suits, injuries and/or damages arising from and/or in any way related to disputes regarding the Website and/or the Services, including disputes between you and any third party (including vendors and artists).
8.2 Indemnification. You hereby agree to indemnify and hold us and our officers, directors, employees, volunteers, affiliates, licensors, vendors, artists and suppliers harmless from and against any lawsuit, claim, damage, liability, or expense (including reasonable attorneys' fees) incurred by us and our officers, directors, employees, volunteers, affiliates, licensors, vendors, artists and suppliers pertaining to our use of any information provided by you, your failure to abide by the acceptable use policy (set forth below), your willful misconduct or gross negligence, or any infringement of intellectual property rights or rights of publicity or privacy of any third party that relates to any information, image, voice, name or content, even if any such claims, damages, liability or expense are based in whole or in part on our own negligence. In no event shall our aggregate and complete liability to you and any third party in connection with any and all of our services provided via the Website, however arising, exceed a maximum of the full retail purchase price of the transaction (including shipping costs) at time of purchase.9. Disclaimer of Warranties.
9.1 No Warranty. The Website (including without limitation all Services and Materials) is provided "as is" and "with all faults" without warranty of any kind and the entire risk as to satisfactory quality, performance, accuracy and effort is with you. There is no warranty, representation or guarantee that the Website will continuously operate or be error free or that any problems will be corrected, or that any information, software or other material accessible from the Website is free of viruses, worms, trojan horses or other harmful components. Further, we do not warrant, guarantee, or make any representations regarding the use of, or the results of the use of the Website either in terms of its compatibility with hardware or other software, its reliability, or otherwise; and you rely on the Website solely at your own risk. Any and all other representations and warranties including, but not limited to, any implied warranties of merchantability and/or fitness of the product for a particular use or purpose, quality, course of dealings, usage of trade, inaccuracy in content caused by our failure to perform with reasonable care, quiet enjoyment or non-infringement are hereby expressly disclaimed. You acknowledge, understand and agree that we are not responsible for the performance or conduct, whether on or off the Website, of any vendor or artist or of any user of our Services.
9.2 No Geographic Representations. We make no representation that the Website operates (or is legally permitted to operate) in all geographic areas. We make no representation that the Website, services or information found through the Website or services is appropriate or available for use in all geographic locations, and accessing the Website from territories where the content of the Website is illegal is expressly prohibited. If you view the Website and/or access the Services from any country other than the United States of America, you acknowledge that you are doing so on your own initiative and you are solely responsible for compliance with all applicable laws.10. Confidentiality.
10.1 Definition of Confidential Information. As used in these Terms, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include any personal information provided to us. Our Confidential Information shall include our intellectual property, proprietary information, Materials, these Terms, business and marketing plans, customer lists, vendor and artists lists, price listings, process and methodologies regarding the Services, all product plans and designs, and business processes disclosed by us, if any. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
10.2 Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of the Services and the Website, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of it and its affiliates’ employees, contractors and agents who need such access for purposes consistent with these Terms and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
10.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.11. Governing Law and Venue.
These Terms are governed by the laws of the State of Texas, U.S.A., excluding any conflict of laws, rules or similar principals, and the applicable laws, regulations and treaties of the United States of America. Any action arising out of any dispute with respect to this Agreement shall only be brought in the state or federal courts located in Travis County, Texas.12. Binding Arbitration.
Any controversy, claim, or dispute arising out of or relating to these Terms, or its interpretation, application, implementation, breach or enforcement, and any other claim, controversy or dispute among you and Spirit Pieces relating in any way to the Website or the Services provided by Spirit Pieces which the parties are unable to resolve by mutual agreement, shall be settled by submission by any party of the controversy, claim or dispute to binding arbitration in Travis County, Texas in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect, with the stipulation that the matter shall be heard by a single arbitrator. In any such arbitration proceeding, the parties agree to provide all discovery deemed necessary by the arbitrator. The decision and award made by the arbitrator shall be final, binding, and conclusive on all parties hereto for all purposes, and judgment may be entered thereon in any court having jurisdiction thereof.13. No Waiver.
If any provision of these Terms is held to be illegal, invalid, or unenforceable, then that provision shall be fully severable from these Terms and shall not affect the legality, validity, or enforceability of the remaining provisions of these Terms. Failure by us to enforce any particular term of these Terms shall not be construed as a waiver of any of our rights hereunder. You agree that, if the terms of these Terms are not specifically enforced, we will be irreparably damaged, and therefore you agree that we shall be entitled, without bond, other security or proof of damages, to appropriate equitable remedies with respect to any breach(es), in addition to any other available remedies. These Terms (and each supplemental agreement referenced in or referencing these Terms found on the Website) constitutes the entire agreement between you and us with respect to the Website and the Services.14. Entire Agreement.
If you have any questions regarding these Terms or the Services, you may email us at firstname.lastname@example.org