As in force since 21st February 2019
The present Terms of Service (hereafter, “TOS”) constitute the binding Contract between any User and InMemori SAS, registered on the commercial registry of Paris under the number 821 346 970 (hereafter “InMemori”), for the use of InMemori Services.
The following definitions are applicable to the TOS in their entirety.
“Administrator”: refers to any person designated to manage the Tribute Space.
“InMemori Content”: refers to any content, information our element that belongs to InMemori, including the Website, its source code and object code, its architecture, design and, more generally, any content, other than User Content, included or accessible on and/or through the Website, as well as any text, graphical design, logo, name, brand, domain name, functionality, image, sound, data, photograph or any other material or software linked to InMemori.
“User Content”: refers to the elements, including messages, memories and photographs, published by any User on the Tribute Space, or more generally on the Website.
“Tribute Space Creator”: refers to any person who created a Tribute space.
“Tribute Space”: refers to the personalized digital space accessible via the Link Sharing, that allows information sharing regarding the Deceased Person’s funerals and gives access to User Contents and other functionalities.
“Administration Interface”: refers to the interface that allows the Administrator to manage the Tribute Space.
“Share Link”: refers to the unique URL address that gives access to the Tribute Space.
“Fundraising Organizer”: refers to the Administrator at the initiative of the organization of a fundraising and who is responsible for its management.
“Deceased Person”: refers to the person who is the subject of the Tribute Space.
“Ancillary Services”: refers to the Flower Delivery Service and the Book Order Service.
“Flower Delivery Service”: refers to the flower delivery service that allows a User to send flowers via a functionality available on the Tribute Space.
“Book Order Service”: refers to the service that allows the order of a book gathering User Contents via a functionality available on the Tribute Space.
“Fundraising Service” or “Fundraising”: refers to the service that allows for the organization of a fundraising by an Administrator to support a cause, via a functionality available on this Space.
“InMemori Services”: refers to the Tribute Space, Ancillary Services, Fundraising Service and more generally any functionality of the Website.
“Website”: refers to the website accessible at www.inmemori.com, exploited by InMemori, that hosts User Contents on Tribute Spaces and enables access to InMemori Services.
“User”: refers to any person accessing the Tribute Space.
Each term written with a capital letter, whether it be used in the singular or plural form, has the meaning given above.
2. Acceptance of the TOS
2.1. Acceptance of the TOS (Administrator)
At the creation of the Tribute Space, the Tribute Space Creator specifies and/or completes the requested information.
The Administrator then receives an email notifying her/him of the creation of the Tribute Space. This email contains a link that allows her/him to access the Administration Interface as well as to personalize and share the Tribute Space.
By clicking on the link, the Administrator accepts the TOS. The version of the TOS in force during the period of use of the Website are available at any time on the Website.
2.2. Acceptance of the TOS (User)
Any access to or use of the Website constitutes an express acceptance, without limitations, of the TOS by the User.
At the publication of a User Content, Users accept the TOS and receive an email confirming their Content’s publication. This email contains an access link to the TOS in force, available at any time on the Website.
Users acting in the name and on behalf of a legal person (an association for instance) guarantee InMemori that they are in possession of all rights, authorizations and powers necessary to accept the TOS.
3. Modification of the TOS
InMemori makes changes to the Website’s characteristics and functionalities to improve its functioning and quality.
InMemori may unilaterally modify the provisions contained in the TOS pertaining to the technical aspects of the Website and InMemori Services, provided that no price increase or quality alteration results from such modifications, and that the characteristics upon which Users subjected their acceptance have been included in the TOS.
4. Purpose of the Website
The Website is intended for people who recently lost a relative or friend, by allowing them to create a private and personalized digital space for the purpose of:
- sharing and accessing information regarding the funerals;
- receiving condolences and memories on the Tribute Space;
- organizing a Fundraising in tribute to the Deceased Person;
- accessing services and functionalities.
InMemori Services are accessible on the Website.
5. Creation and access to the Tribute Space
To create a Tribute Space, any person may go to the Website and specify the requested information (in particular, the information regarding the Deceased Person, the Tribute Space Creator’s contact details and information regarding the funerals).
Once the Tribute Space is created, the Tribute Space Creator receives, by email, the confirmation of its creation and a link towards the Administration Interface.
Users access to the Tribute Space via the Share Link, which is available in the Administration Interface and may be shared by the Administrator.
6. Functioning of the InMemori Services
6.1. Functioning of the Tribute Space
6.1.1. Functionalities of the Tribute Space
The Tribute Space allows Users to:
- consult User Contents;
- share a message or a memory: Users must specify their surname, forename, email address and type the message or memory they wish to publish, along with an eventual photograph;
- share a photograph: Users must specify their surname, forename, email address and attach the photograph they wish to publish;
- participate in the fundraising: Users must specify their surname, forename, email address, the amount of money they want to donate and their postal address (optional);
- subscribe to Ancillary Services: Users select the relevant section on the Tribute Space and follow the ordering process’ instructions.
Users are informed and accept that the Administrator disposes of the faculty to (i) collect email addresses of the Users who published a User Content and/or donated on the Tribute Space, download User Contents published by Users on the Tribute Space, and (iii) delete any User Content without notice.
6.1.2. Functionalities of the Administration Interface
The Administration Interface allows Administrators to:
- retrieve the Share Link;
- know how many Users have consulted the Tribute Space;
- know the number of User Contents;
- consult and remove User Contents;
- download User Contents;
- organize and manage a Fundraising;
- retrieve the contact details of Users who published a User Content or participated in a Fundraising;
- retrieve the list of Users who participated in a Fundraising with the corresponding amounts donated;
- modify the Tribute Space at any time;
- designate new Administrators.
The Tribute Space Creator is the only person who disposes of the faculty to close the Tribute Space. This functionality is available on the Administration Interface.
Seul le Créateur de l’Espace en Hommage dispose de la faculté de clôturer l’Espace en Hommage, fonctionnalité disponible dans l’Interface d’Administration.
6.2. Functioning of the Fundraising Service
On the Administration Interface, the Administrator may organize a Fundraising for a cause or his close relatives or friends. The fundraising’s financial flows are managed by Stripe, a payment service provider that facilitates money transfer thanks to a dedicated digital infrastructure.
The Fundraising Organizer specifies, in the Administration Interface, the information necessary to the creation of the Fundraising, including its beneficiary (an association for instance). Once the Fundraising is created and activated, a “make a donation” button appears on the Tribute Space, which allows Users to participate.
Once donations are retrieved, the Fundraising Organizer commits himself or herself to close the Fundraising and specify the information required by Stripe as part of anti-money laundering regulations.
Once Stripe’s verifications are accomplished, money is unlocked and transferred to the Fundraising Organizer’s bank account, without passing through InMemori’s account. A 5% commission fee for InMemori’s services will be charged on the total amount raised.
The Fundraising Organizer commits himself or herself to distribute the money received to the beneficiary initially chosen and presented to Users.
6.3. Functioning of the Ancillary Services
6.3.1. Functioning of the Flower Delivery Service
Users may send flowers to the funerals’ venue thanks to the “Send flowers” functionality available on the Tribute Space. By clicking on the link, Users have access to the products offered by the partner, as well as their prices.
Users are free to subscribe, or not, to the Flower Delivery Service. During the order, Users specify the delivery location and may attach a note to it.
The preparation of the bouquet and the delivery are performed by one of InMemori’s partners. Once the order is placed by Users, InMemori is in charge of forwarding the information to its partner.
6.3.2. Functioning of the Book Order Service
Users may order a book gathering all or parts of User Contents published on the Tribute Space, via the “Order a book” functionality available on the Tribute Space. By clicking on the link, Users have access to the products offered by the partner, as well as their prices.
Users are free to subscribe, or not, to the Book Order Service. During the order, Users specify the quantity of books they want to purchase and the delivery location.
The layout, printing, binding and delivery of books is performed by one of InMemori’s partners. Once the order is placed by Users, InMemori is in charge of forwarding the information to its partner.
7. Commitments of Users
7.1. General commitments of Users
Users commit themselves to respect the obligations provided in the TOS, including to:
- not publish any commercial communication on the Website or use the latter for commercial purposes;
- not access the Website by means of automated methods;
- not develop or exploit any third-party application, whose content is linked to alcoholic beverages, dating websites for adults or other products and services for adults (including advertisements) whose access is not restricted by age;
- not use the Website for illegal, malevolent or discriminatory purposes;
- not enable or encourage violations of the TOS;
- not create a Tribute Space for a person who is alive, fictive, or unknown by Users;
- not download InMemori Content or use it for a purpose other than specified in the TOS;
- publish User Content under their true identity, which means specifying their civil status and a valid personal email address;
- make personal use of User Content downloaded from the Tribute Space, and not reuse it for commercial purposes or share it on the Internet, including websites that would violate the Deceased Person’s honor or dignity or that of their entourage;
- keep an ethical conduct and exercise restraint regarding contents, information and/or comments online;
not publish any illegal content, including contents:
- making an apology of crimes against humanity;
- inciting to commit acts of terrorism and their apology;
- inciting racial hatred, or hatred towards any person on the basis of their gender, sexual orientation or identity, or handicap;
- child pornography, incitement to violence, including incitement to sexual and sexist violence, as well as relating to human dignity violations;
- of violent or pornographic nature;
- aiming at harming a person, including defamatory content, insults, slurs, and so on;
- violating public order and morals; or
- constituting a violation of any third party’s intellectual property rights.
7.2. Commitment of Fundraising Organizer
In addition to his or her general commitments, the Fundraising Organizer commits himself or herself to:
- select a beneficiary;
- provide the information requested by Stripe;
- ensure that all Users had the opportunity to participate in the Fundraising by closing it after a reasonable period of time and ensuring having informed any potential participant;
- distribute the totality of the money received to the Fundraising’s beneficiary initially chosen at the creation of the Fundraising;
- ensure the monitoring of the Fundraising and provide information to Users’ questions regarding the Fundraising and its distribution to the beneficiary;
- take the necessary action with the Fundraising’s beneficiary so that the Users can have access to the tax documents to which they are entitled thanks to their contribution.
7.3. Commitment of the Administrator
In addition to their general commitments, when they are Administrators, Users commit themselves to:
- comply with the rules applicable to processing of personal data as part of the Tribute Space’s management;
- restrict the use of Users’ personal data to the purpose of monitoring the Tribute Space, especially by refraining from publishing Users’ personal data outside of the Website or by using them for commercial purposes;
- send InMemori any inquiry relating to personal data made by Users of the Tribute Space that they manage.
8. Commitment of InMemori
InMemori commits itself to ensure the continuity and quality of the access to and exploitation of the Website and InMemori Services.
The Website and InMemori Services are accessible 24/7, except in case of force majeure or unforeseeable and insurmountable conduct by a third party, and subject to any technical failure and maintenance interventions and updates necessary to the functioning of the Website and the provision of InMemori Services.
Users are informed that InMemori may limit or suspend the access to the Website or to InMemori Services to proceed to maintenance, update and improvement operations.
9.1. Responsabilities regarding the Tribute Space and removal of illegal contents
As website host, InMemori is under no general legal obligation to monitor activities, information and contents stored or processed on the Website, but must remove or remove access from the Website any illegal content as soon as InMemori has been duly notified of its existence.
Users who notices the presence of illegal contents on the Website or contents in violation of the TOS should use the reporting mechanism by clicking on the “Report an abuse” link, which notifies them to InMemori. Users may also send an email to firstname.lastname@example.org.
The information on the litigious facts that must be provided by Users are the following:
(i) the notification date;
(ii) the notifier’s identity;
(iii) InMemori’s name and head office address;
(iv) the description of the litigious facts and their precise location;
(v) the reasons why the content should be removed (with details on the rules and justifications of the facts); and
(vi) the copy of the correspondence sent to the author or the editor of the litigious information or activities, asking for their interruption, removal or modification, or the justification of the impossibility to contact them.
Any incomplete notification shall be considered as not valid. In addition, InMemori shall not be held liable for the accuracy and reliability of User Contents, and more generally for any information published on the Website.
9.2. Responsabilities regarding the Ancillary Services
Users are informed and acknowledge that Ancillary Services are performed by independent third-party companies, acting as InMemori’s partners. As a result, InMemori cannot guarantee the perfect execution of Ancillary Services as they are out of its control (a failure in the flower delivery for instance).
In case of damages due to a wrongful or the absence of execution of an Ancillary Service, InMemori shall not be held liable when:
- the damage has been caused by Users;
- the damage has been caused by an unforeseeable and insurmountable fact due to a third party;
- the damage directly or indirectly results from force majeure.
In any case, InMemori’s responsibility is limited to actual, direct and foreseeable damages and cannot exceed the amounts paid by Users to use Ancillary Services. Users waive their right to seek for InMemori’s liability for any indirect damages resulting from the use of the Ancillary Services.
9.3. Responsabilities regarding the Fundraising
The Fundraising Organizer is solely responsible for the Fundraising.
In conformity with the functioning of the Fundraising Service, the money received in the course of the Fundraising transit via Stripe and are distributed to the Fundraising Organizer once the necessary verifications are accomplished.
InMemori shall not be held liable in case of misuse of funds by the Fundraising Organizer. Each User who participated to the Fundraising is responsible for ensuring the Fundraising Organizer’s good faith and the conformity of the distribution of funds with the initial objective of the Fundraising.
10. Suspension of InMemori Services
In case of violation by Users of one of their obligations, InMemori will contact Users, by all means, to notify them of the alleged violations. As of the date of the notification, Users have 30 days to provide an answer to the violations alleged by InMemori.
In the absence of a response or cessation of violation(s) by Users, InMemori may delete their User Contents and block the email address, which they used to publish the Content or use InMemori Services.
Les CGU s’appliquent à tous les Utilisateurs, pour une durée indéterminée, à compter de l’acceptation des CGU ou de l’utilisation du Site ou des Services InMemori.
The TOS may be terminated under the following conditions:
- For Users: the TOS may be terminated at any time and free of charge by Users, by contacting InMemori at the following address: email@example.com. By terminating the TOS, Users accept and commit themselves to refrain from using the Website and InMemori Services.
- For InMemori: in case of a violation of the TOS by the User, the TOS may be terminated with a 40-day prior notice by email to the email address indicated by Users.
The termination of the TOS enters into force immediately, subject to the entire and perfect execution of the TOS (payment obligations regarding the Ancillary Services or obligations regarding the Fundraising for instance).
12. Waiver of right withdrawal
In conformity with the French Consumer Code (“Code de la consommation”), Users hereby expressly waive their right of withdrawal for the Flower Delivery Service and the Book Order Service, in case of personalized and fully executed services before the end of the withdrawal period.
13. Intellectual property
13.1. InMemori Contents
InMemori is the exclusive owner of all intellectual property rights relating to InMemori Contents, including the domain name www.inmemori.com, the source code and object code, InMemori’s registered brand and the graphic charter.
In addition, InMemori produces the Website’s data bases. As a result, any extraction and/or reuse of the data bases as mentioned in article L. 342-1 and L. 342-2 of the French Intellectual Property Code (“Code de la propriété intellectuelle”) is forbidden.
Any use, including any form of copy, in whole or in part, adaptation, distribution, aspiration and reproduction of InMemori Contents (including the source code, object code and databases), is strictly forbidden without InMemori’s prior written consent.
13.2. User Contents
13.2.1. License of use
Users are and remain the owner of all intellectual property rights relating to User Contents.
Each time Users publish a User Content on the Website or Tribute Space, Users assign InMemori a non-exclusive and royalty free worldwide license (which also includes the right to sub-license) on such User Content.
Under this license, InMemori is authorized, during the protection of intellectual property rights attached to User Content’s entire legal period, to:
- use Users Contents, integrate them in whole or parts with or without modification, on any support, including digital, analogic or paper;
- reproduce or have User Contents reproduced, in whole or parts, permanently or temporarily, as well as any adaptation, on any support, including paper or digital, or any other known or unknown support, actual or future, without number limitations; and for any useful purposes for its actual and future activity;
- adapt or have User Contents adapted in whole or in part, modify them, transcribe them in whole or in part, in any form, integrate them in whole or in part into existing or future works, on any support, including paper or digital, or any other known or unknown, actual or future, support;
- translate or have User Contents made in any coding language translated, in whole or in part, and the reproduction of the resulting User Contents on any support, including paper or digital or any other known or unknown, actual or future, support;
- share or have User Contents shared, in whole or in part, as well as any adaptation such as aforementioned, by any manner and process, known or unknown, on any support, in any form;
- put on the market or conclude any contract aiming at the release on the market, against payment or free of charge, including any adaptation such as aforementioned, in whole or in part, by any process, on any known or unknown, actual or future, support, to any public without restriction or number limitation;
- use and exploit, for personal purposes or for a third party, against payment or free of charge, User Content and eventual adaptations or works derived from User Contents made in application of the present provisions.
Are also assigned, the rights of exploitation, commercialization, representation, edition, diffusion of parts or all of one or several User Contents, directly or indirectly, on any support, including digital or paper ones, that can be used as such or integrated with or without modification.
Users are informed and explicitly accept that this license includes InMemori’s right to represent, reproduce and more generally use User Content, in whole or in part, in any form and on any known or unknown support, as well as any adaptation of User Content, in order to create and edit a derived work (a book) dedicated to the Deceased Person, which will be distributed free of charge or against payment in the course of InMemori’s activity.
Users expressly agree to the assignment, free of charge, of the abovementioned license to InMemori.
This license is assigned for the protection of intellectual property rights attached to User Content’s entire legal period and for a worldwide exploitation.
Users guarantee InMemori that they dispose of the full and complete enjoyment of User Content. In particular, Users guarantee:
- that they publish User Content under their true identity and provide InMemori with their civil status and a valid personal email address;
- that they own all the intellectual rights regarding Users Content and is entitled to assign the aforementioned license; and
- that User Contents do not violate any third party’s intellectual property rights.
Users guarantee InMemori against any trouble, claim or action that may be initiated by third parties on the ground of a violation of any third party’s right, including intellectual property rights, counterfeiting, unfair competition, parasitism or more generally civil responsibility, regarding all or parts of one or several User Contents. Users will reimburse InMemori for any amount paid by the latter (including attorney's fees for its defense) or any other amount InMemori may be condemned to pay under the present article; and such, without prejudice to any damages InMemori may claim for.
14. Personal data
InMemori attaches great importance to the compliance with Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (GDPR) and the French Law n°78-17 of 6 January 1978 relating to computer systems, files and liberties.
These TOS constitute the entire agreement between Users and InMemori. The TOS replace any other previous negotiation, contract, declaration or agreement.
Should one provision of the TOS be found null and void with regard to a legal disposition or definitive judiciary decision, it shall be deemed never to have existed, without prejudice to the other provisions which will continue to be in effect.
16. Applicable law and competent jurisdictions
16.1. Applicable law
The present TOS are governed and interpreted by French law.
16.2. Competent jurisdictions
Any dispute or disagreement relating to the validity, interpretation, execution and/or termination of the TOS will be submitted to courts within the jurisdiction of the Court of Appeal of Paris.
Under Article. R. 631-3 of the French consumption Code, consumers may, at their discretion, initiate proceedings before (i) one of the territorially competent jurisdictions according to the French Code of Civil Procedure (“Code de procédure civile”), (ii) the jurisdiction for the place where they were domiciled at the conclusion of the contract, or where the harmful event occurred.