Terms and Conditions of Service

Introduction.

Welcome, these are the Terms and Conditions of Service (the “Terms”) for the website located at www.lastwish.com (the “Site”), including its sub-domains and its mobile optimized versions, along with any products and services offered thereby.  These Terms shall supplement our Privacy Policy (the “Policy”), incorporated herein by reference.

The Site and any appertaining products and services are provided by Last Wish LLC. (hereinafter referred to as “Last Wish”).  The terms ‘us’, ‘its’, ‘ours’ and/or ‘we’, as used herein, refer to us, Last Wish and/or our affiliates, assignees, successors and/or brands.  As used herein, the terms ‘you’, ‘your’, and/or ‘yourself’ refer to you, a user/visitor/browser of our Site, whether registered under an account or not.

Services.

Last Wish sells, provides and manages content storage services for personal last wishes, cherished memories, family message and final life desires of our users, which can be accessed via our website located at www.lastwish.com, along with other web properties used by us from time to time (collectively, the “Service(s)”).  

Acceptance.

If you continue to browse and use the Site, you hereby acknowledge and agree to be bound by and under these Terms which, together with our Policy, will govern Last Wish’s relationship with you in relation to the Site, along with any products and Services offered thereby.

Updates.

Last Wish reserves the right to modify, amend, suspend, terminate, upgrade, update or otherwise modify these Terms, the Site and the Services, at any time and without notice.  Any changes will be displayed in the Site, and we may notify you by email. Please refer to the last effective date where changes were last undertaken by us. Your use of our Services after the effective date of any update– either by an account registration or simple use – thereby indicates your acceptance thereof.

Support Services.

If you have any questions or complaints regarding the Site or the Services, please contact us as indicated in our contact web page.  We may offer live-chat services where you will be able to chat with one of our customer agents in order to express your queries. Of course, you can also email us.  We will undertake our commercially reasonable efforts in order to respond as quickly as possible. You must provide us full details of your service query so that we can clearly identify your issue of concern.

Account Registration and Security.

In order to use our Services, you may need to create an account, including all mandatory fields on the registration form.  You must provide accurate and complete information. You agree to keep secret the password chosen upon creating your account and not to communicate it to anybody.  If you lose or disclose it, you must inform us.

You are solely responsible for the activity that occurs on your account and for keeping your password secure and confidential, and must notify us immediately of any breach of security or unauthorized use of your account.  You will be liable for any and all misuse of your account, including the fraudulent use by a third party, or even the disclosure of your password.

Account Suspension, Termination.

Last Wish encourages you to report violations of our Terms.  Users undertaking conducts that may constitute a factual –or even alleged– breach of these Terms, including but not limiting, using automated mechanisms to make fraudulent communications, may become subject to immediate account suspension / termination, at our sole and final discretion, without notice and without responsibility.

We reserve the right, at our sole and final discretion, to deactivate, freeze, suspend or terminate any account upon any factual or alleged breach of these Terms.  You must notify us immediately of any change in your eligibility to use Last Wish, or if you suspect a breach of security or unauthorized use of your account.

You acknowledge and agree that we may report any activity that we believe may violate any law to law enforcement, regulators or other relevant third parties, and that any violation of the aforementioned provisions may result in the immediate termination of your access to the Site and our Services.

Service Eligibility.

Last Wish does not knowingly provide its products or Services to persons under the age of eighteen (18).  Last Wish encourages parents, legal guardians and responsible adults to be actively involved in the safe use of the Internet by children and minors.  If you are under such age, you may only use them under the direct supervision of your parent or legal guardian. Last Wish does not knowingly collect any kind of information from any person under the age of eighteen (18), and will delete any related information thereto.

Prohibited Activities.

As our user, you agree to not undertake, motivate, or facilitate the use or access of the Site or the Services in order to:

  1. Infringe these Terms, or allow, encourage or facilitate others to do so.
  2. Plagiarize and/or infringe the intellectual property rights or privacy rights of any third party, including any breach of confidence, copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right.
  3. Distribute, post or otherwise make available any content that: (i) infringes or endangers the intellectual property rights of any person (e.g. trademark, moral rights, trade secret, copyright, ancillary rights or other); (ii) enables any act that could promote or cause discrimination, racism, harm, libel, hatred or violence against any individual or group; (iii) endangers children and underage persons; (iv) is or allows illegal or fraudulent activities to take place; (v) is or may constitute a criminal or capital offense or otherwise infringes any applicable law; and/or (vi) is or can be considered to be obscene, sexually explicit material, pornographic, threatening/defamatory, plagiarized, firearms, tobacco, alcohol, marijuana, gambling, binary options, Forex, pornographic or analogous material.
  4. Collect, receive, transfer or disseminate any personally identifiable information of any person without due consent from the title holder.

No Spam.

We reserve the right to screen our content to locate and delete any spam or deceiving code, offer or link to any product or service.  We will not tolerate, and we will not allow others to undertake though our Services or Site, any and all massive delivery of unsolicited bulk communications to our users or to any third party, in compliance with the Controlling the Assault of Non-Solicited Pornography And Marketing Act (‘CAN-SPAM Act’).  Any commercial electronic communication (“CEM”) that you receive from us our partners, licensors, suppliers and affiliates will require your prior consent to such communication. Our CEMs will include measures in order for you to stop receiving them, usually through an unsubscribe link. Please see our Policy for more information.

User License.

By posting or displaying any information, content or material on the Site or providing any user generated content to Last Wish (herein referred to as “User Content”), you thereto grant an irrevocable, perpetual, worldwide, royalty-free., and sub-licensable license to Last Wish, in order for to display, transmit, distribute, reproduce, publish, duplicate, adapt, modify, translate, create derivative works, and otherwise use any or all of the User Content in any form, media, or technology now known or not currently known in any manner and for any purpose which may be beneficial to the operation of the Site, the provision of any Services and/or the business of the User.  You represent, confirm and warrant to Last Wish that you have all the rights, power and authority necessary to grant the above license.

You hereby grant to Last Wish and its affiliates, an unlimited, non-exclusive, assignable, transferable, sub-licensable, irrevocable, royalty free, perpetual and for all the countries and territories in the world, right and license to use any feedback, suggestion, enhancement, request, recommendation, correction or comment provided by you to Last Wish regarding the Site, and to exploit and otherwise incorporate it into the Site.

Ownership.

The trademarks, copyright, service marks, trade names and other intellectual property rights and proprietary notices displayed on the Site and the Services are the property of –or otherwise are licensed to– Last Wish or its licensors or affiliates, whether acknowledged (or not), and which are protected under intellectual and proprietary rights in the United States of America and other jurisdictions throughout the world.  

For ease of understanding, ‘intellectual property rights’ shall mean any and all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of the United States of America and other applicable jurisdictions.

Representations and Warranties.

You hereby represent, warrant and covenant that: (i) your use of our Site and Services, and all your uploaded and used data shall be at all times compliant with these Terms and all local, state, federal and international laws and regulations applicable to you and your organization; and (ii) you have obtained all necessary rights, releases and permissions to provide any data to Last Wish and its affiliates, licensors and agents and to grant the rights granted to Last Wish in these Terms, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorized herein is not inconsistent with the terms of any applicable privacy policies.

Term, Termination.

The term hereof shall begin on the date that comes first among: (i) first access to the Site; (ii) your first access or execution of any of Hyperion’s products or Services; or (iii) Last Wish begins providing its Services to you.

The term hereof will automatically end on the earlier date of either of: (i) account deactivation, suspension, freezing or deletion; (ii) access termination or access revocation for our Services; (iii) Last Wish's termination of these Terms, at its sole and final discretion; (iv) the termination date indicated by Last Wish to you from time to time; or (v) Last Wish’s decision to make the Site or the Services no longer available for use, at its sole and final discretion.

Third Party Links.

The Site and the Services may contain hyperlinks to other websites.  These links are for your personal convenience and to provide you with further information which may be of interest to you.  The provision of such links does not imply any endorsement of such third party websites, products or services.

From time to time, we may place ads and promotions from third party sources in the Site and/or the Services.  Accordingly, your participation or undertakings in promotions of third parties other than Last Wish, and any terms, conditions, warranties or representations associated with such undertakings, are solely between you and such third party.  Last Wish is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of third party advertisers.

User Privacy.

By disclosing any data and personally identifying information to us, you agree to our Policy, including the collection, process, storage and disclosure of such personally identifiable information, including to our affiliates, partners and clients.  We will ask for your express consent, including for inclusion into our newsletters, updates, and follow ups. For more information, please read our Policy.

Digital Millennium Copyright Act (‘DMCA’) Notice.

For DMCA Takedown Notices and alleged intellectual property rights infringement within Last Wish, you can get in touch with us as indicated in our contact section.  Under federal United States law, if you knowingly misrepresent that online material is infringing, you may be subject to criminal prosecution for perjury and civil penalties, including monetary damages, court costs, and attorney's fees.

You must notify us of your claim with subject: "Takedown Request".  Once received, Last Wish will study and consider your claim and, if it believes or has reason to believe any content on Last Wish that infringes on another’s copyright, Last Wish may delete it, disable or otherwise stop displaying it.  Please note that this procedure is exclusively for notifying Last Wish and its affiliates that copyrighted material has been infringed.

Your DMCA notification claim must be in writing and must at least contain the following information: (i) your signature and identification, or the ones the person authorized to act on behalf of you or the title holder; (ii) a clear and concise description of the content of which its copyright has allegedly been infringed; (iii) contact information (e.g. address and email); and (iv) a statement, under penalty of perjury, indicating that you have a good faith belief that the information provided in your claim is true and accurate.

DMCA Counter Claim Notice.

Given our business model, our affiliates, advertisers, partners and third party syndicated content providers may be adversely affected due to a DMCA Takedown Notice.  Accordingly, upon receipt of any such notice, we will try to contact the content owner or webmaster of the affected site to uphold their right to a Counter Claim Notice, under Sections 512(g)(2) and (3) of the DMCA.  To file a Counter Claim Notice, please contact our Designated Agent indicated above, in writing, and with a Counter Claim Notice containing the following information, at a minimum: (i) express identification of the content that we may have or have removed from our Site and section or domain it was displayed; (ii) contact information, such as your address and your email address; (iii) a signature and identification of the title holder and/or the person authorized to act; and (iv) a statement indicating that you swear, under penalty of perjury, that you have a good faith belief that the information provided in the Counter Claim Notice is true and accurate.

No Warranty.

Neither Last Wish, nor its affiliates, subsidiaries, officers, employees and agents warrantee that the Site and the Services will be error-free, uninterrupted, secure, or produce any particular results.  No advice or information given by Last Wish or its employees, affiliates, contractors and/or agents shall create a guarantee. The Site and the Services have not been completely tested in all situations or devices, and they may or will contain operational malfunctions, errors, viruses, worms, trojan horses, bots and other harmful and destructive components or defects.

To the fullest extent permissible under applicable law, the Site and the Services are provided to you “as is”, with “all faults” and “as available”, without warranty of any kind, without performance assurances or guarantees of any kind, and your use is at your sole risk.  No oral or written advice provided by Last Wish, its affiliates, clients, agents, officers, licensors, distributors and/or any authorized representative, shall create any implied warranty, nor will they be responsible for any actions or omissions of yours regarding the use of the Sit and the Services, such as incorrect input, format or backup of data and metadata, lost data or corrupted data.

The entire risk of satisfactory quality and performance resides with you.  Last Wish, and its affiliates, clients, agents, officers, licensors and/or distributors, do not make, and hereby disclaim, any and all express, implied or statutory warranties, either by statute, common law, custom, usage of trade, course of dealing or otherwise, however arising, including implied warranties of description, quality, fitness for a particular purpose, operation, integration, adequacy, suitability, title, non-infringement, non-interference with use and/or enjoyment.

Disclaimer of Damages

In no event shall Last Wish, its affiliates, clients, agents, officers, licensors, distributors and/or any authorized third party, be held liable for any special, indirect, incidental or consequential damages, including losses, costs or expenses of any kind resulting from possession, access, use or malfunction of the Site or the Services, including but not limited to, loss of revenue, profits, business, loss of use or lack of availability of computer resources; whatsoever arising out of or related thereto, whether arising in tort (including negligence), contract, strict liability or other legal or equitable theory and whether or not Last Wish, its affiliates, clients, licensors and/or distributors have been advised of the possibility of such damages.

Limitation of Liability

In no event shall Last Wish’s, or its affiliates’, clients’, licensors’ and/or distributors’ liability for all damages (except as required by applicable law) exceed the amount of USD$100.00 (One Hundred United States Dollars); and henceforth any award for direct, provable damages shall not to exceed such total amount.

These Terms provide you specific legal rights, and you may have other rights that may vary from jurisdiction to jurisdiction.  Legislation of some states/countries does not allow certain limitations of liability, and henceforth this limitation of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction.  For purposes of this limitation of liability, Last Wish’s affiliates, licensors and distributors are third party beneficiaries to the limitations of liability specified herein and they may enforce these Terms against you.

Indemnification

You hereby agree and acknowledge to indemnify, hold harmless, and defend Last Wish, its affiliates, clients, agents, officers, licensors, distributors and/or any authorized representatives, and the officers, directors and employees of each (jointly, the “Last Wish’s Indemnitees”) from and against any and all third party liabilities, claims, causes of action, suits, losses, damages, fines, judgments, settlements and expenses (including any and all reasonable outside attorneys’ fees and court costs) which may be suffered, made or incurred by any of such Last Wish’s Indemnitees arising out of or relating to: (i) any breach of any warranties, representations and/or covenants made by you hereunder (to the extent not arising substantially from any breach hereof by Last Wish); and/or (ii) any third party claim arising out of or in relation to the Site or the Services or use thereof in combination with your business platform, including without limitation, any claim that the Site or the Services violate, infringe, or misappropriate any proprietary or intellectual property right of any third party, including without limitation, any privacy right of any person.

No Endorsement.

The images, texts, posts, information, photographs and other content and media displayed on or through the Site are not necessarily available and any results therefrom – which we cannot ultimately control – are out of our ultimate and  complete scope. Some or all of the images shown in the Site are licensed and/or purchased stock photos, and are only shown for illustration purposes. Some or all of the content displayed in the Site is undertook by external third parties, and does not reflect Last Wish’s opinions, nor do Last Wish, its affiliates, subsidiaries, officers, employees and agents guarantee its actual veracity or make any endorsement thereof.

Generals

Assignment.  These Terms will inure to the benefit of any successors of the parties.

Entire Agreement.  These Terms set forth the entire agreement between the parties hereof and may not be altered or amended except in writing signed by each both parties.

Equitable remedies:  You hereby acknowledge and agree that if these Terms are not specifically enforced, Last Wish will be irreparably damaged, and therefore you agree that Last Wish shall be entitled, without bond, other security or proof of damages, to appropriate equitable remedies with respect to your breach of any of these Terms, in addition to any other available remedies.

No Waiver.  Failure by Last Wish to enforce any rights hereunder shall not be construed as a waiver of any rights with respect to the subject matter hereof.

No Relationship.  You and Last Wish are independent contractors, and no agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by these Terms.

Severability.  If any provision of these Terms is held unenforceable, then such provision will be modified to reflect the parties' intention.  All remaining provisions of these Terms will remain in full force and effect.

Waiver for California Residents If you are a user currently residing in the State of California, you hereby acknowledge and waive Section 1542 of the California Civil Code, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”

Notice for California Residents.  As indicated in the California Civil Code, Section 1789.3, our California users have the right to be made aware of this information: the Site is provided by Last Wish LLC.  California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.

Applicable Law, Waiver, Forum

Waiver of Class Actions, Non-Individualized Relief.  You acknowledge and accept that claims brought against Last Wish shall be only on an individual basis and not as a plaintiff or class member in any possible future class or representative action or similar proceeding.  Unless otherwise agreed by you and Last Wish, you may not adjoin or consolidate any claim with more than one person's; and you may not otherwise supervise or take over any form of a class, representative or consolidated proceeding.

Waiver of Jury Trial.  The parties herein waive their constitutional and statutory rights to go to court and have a trial in front of a judge or a jury, instead electing that all claims and disputes be resolved by a competent judge.

Applicable Law.  Your use of this Site and any cause of action, claim and/or dispute that might arise between the parties hereon, shall be subject to the laws of the State of California, United States of America, without regard to conflict of law principles.

Forum.  You hereby represent that you consent to the exclusive jurisdiction and venue of the competent courts located in or nearest to the City of San Francisco, State of California, for in all disputes arising out of or relating to the use of this Site.  You agree that the unsuccessful party in any dispute arising from or relating to these Terms will be responsible for the reimbursement of the successful party’s reasonable attorney’s fees, court costs, and disbursements.

Contact

If you have any questions or queries about us, the Site, our Services or these Terms, please contact us as indicated in our contact page, by phone to 415.236.3475, and by post to Last Wish, LLC 995 Market st, San Francisco, California 94103.

 

Date of last effective update is June 18th, 2018.