Terms of Use Agreement

Stardust Memorials Terms of Use Agreement

Thank you for visiting the Stardust Memorials® website. The Stardust Memorials® website and its associated services (collectively, the “Website”) are provided by Stardust Memorials, LLC, a Michigan limited liability company (“Stardust Memorials”). By accessing or using the Stardust Memorials® Website, however accessed, or by purchasing any products through the Website, you manifest your intent and agree to be bound by this Terms of Use Agreement (“Agreement”).

This Agreement and the terms contained within are subject to change by Stardust Memorials at any time, in its sole and absolute discretion, and without notice, but any change to these terms will not apply retroactively. You are under a duty to review the terms of this Agreement prior to using the Website. If you do not agree to the terms and conditions contained within this Agreement, you must discontinue your use of the Website immediately. Your continued use of the Website after a replacement, modification, or amendment of the terms of this Agreement will constitute your manifestation of assent to, and agreement with, any replacement, modification, or amendment herein.

Stardust Memorials hereby incorporates its Privacy Policy as if fully restated herein. You must review Stardust Memorials’ Privacy Policy to understand what personal and personally identifiable information that Stardust Memorials may collect from you when you use the Website and how Stardust Memorials may use that personal or personally identifiable information.

NOTICE OF ARBITRATION. THIS TERMS OF USE AGREEMENT CONTAINS AN ARBITRATION PROVISION AND CLASS ACTION WAIVER THAT APPLIES TO ALL CLAIMS EXCEPT FOR CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT OR THOSE THAT CAN BE BROUGHT IN SMALL CLAIMS COURT. EXCEPT AS OTHERWISE STATED UNDER THE TERMS OF THIS AGREEMENT, AND IF YOU DO NOT OPT-OUT OF ARBITRATION AS SET FORTH BELOW, YOU AGREE THAT ANY AND ALL DISPUTES BETWEEN YOU AND STARDUST MEMORIALS WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU WAIVE YOUR RIGHT TO BRING OR RESOLVE ANY DISPUTE AS, OR PARTICIPATE IN, A CLASS, CONSOLIDATED, REPRESENTATIVE, COLLECTIVE, OR PRIVATE ATTORNEY GENERAL ACTION OR ARBITRATION.

  1. User Eligibility. The Website is open to use to those who are age eighteen (18) or above. By using the Website, you warrant that you are age eighteen (18) or above, are of sound mind, and have the capacity to agree to and uphold the terms and conditions contained within this Agreement. If you use the Website on behalf of a business entity or other third party, you warrant that you express actual authority to act as an agent of that business entity and third party and, as a component of that agency, have the right and ability to agree to the terms of this Agreement on behalf of that third party or business entity. You further warrant that you are not prohibited from entering into this Agreement by the terms of any preexisting agreement.

  1. Privacy Policy. Stardust Memorials hereby incorporates its Privacy Policy by reference as if fully restated herein.

  1. Intellectual Property Rights. The Website and its associated trademarks and content are owned and used by Stardust Memorials, including, but not limited to, the Stardust Memorials® trademark. Any use of the Website, its associated trademarks, or its content without the prior written approval of Stardust Memorials is prohibited. The selection, arrangement, and layout of the Website is the sole and exclusive property of Stardust Memorials, and any unauthorized copying, public display, public performance, distribution, or derivation, whether in whole or in part, is expressly prohibited.

  1. Acceptable Use Policy. When you use the Website, you agree to use it only for its customary and intended purposes and as permitted by the terms of this Agreement and any applicable law, regulation, statute, or ordinance. Additionally, you agree that you are responsible for any breach of your obligations under the terms of this Agreement and for any losses suffered by Stardust Memorials for such a breach, including, but not limited to, monetary damages, costs, and attorneys’ fees. You are expressly prohibited from using the Website to violate any law, statute, ordinance, regulation, or treaty, whether local, state, provincial, national or international, or to violate the rights of a third party, including, but not limited to, intellectual property rights, privacy rights, rights of publicity, or other personal or proprietary rights. Additionally, you are expressly prohibited from:

  1. Attempting to access the Website other than through a standard web browser unless you have been permitted to do so by Stardust Memorials through a separate, written agreement (this restriction does not apply to search engines that comply with Stardust Memorials’ robots.txt file);

  2. Accessing or attempting to access the Website through automated means (this restriction does not apply to search engines that comply with Stardust Memorials’ robots.txt file);

  3. Circumventing the technological protection measures of the Website;

  4. Posting or transmitting content intended to collect personal or personally identifiable information from users of the Website or third parties;

  5. Disrupting or otherwise interfering with the Website or its associated servers or networks;

  6. Scraping, reproducing, republishing, selling, reselling, duplicating, or trading the Website or its content;

  7. Diverting or attempting to divert customers of the Website to another website or service;

  8. Sending unsolicited or unauthorized communications to users of the Website or third parties;

  9. Transmitting content to the Website that is false, inaccurate, misleading, tortious, defamatory, vulgar, obscene, libelous, invasive, hateful, or otherwise objectionable;

  10. Reverse engineering, decompiling, translating, or disassembling the Website or its content; and

  11. Encouraging or assisting any other party to do anything in violation of the terms of this Agreement.

Stardust Memorials reserves the right to modify, amend, or terminate the Website or its associated content at any time and without prior notice. Stardust Memorials also reserves the right to refuse service or access to the Website to any person or business entity at any time and without notice.

  1. Ordering and Payment. Payment for all orders placed through the Website must be made at the time of ordering. You understand and agree that the prices quoted on the Website are an invitation to deal and that no contract will be formed between you and Stardust Memorials until Stardust Memorials accepts your invitation to deal by performance, specifically, by shipping the ordered goods. Pricing errors will not constitute a contract between you and Stardust Memorials, and Stardust Memorials strives to quickly correct any pricing errors on the Website when discovered. You agree that you will pay all applicable taxes or charges imposed by any governmental entity anywhere in the world in connection with your use of the Website or purchase of goods through the Website. All costs and fees are quoted and payable in United States Dollars and you acknowledge and agree that Stardust Memorials is not responsible for any foreign transaction fees or other fees charged to you by your financial institution or by Stardust Memorials’ payment processor. You agree that you will not initiate any chargebacks to Stardust Memorials unless otherwise authorized by Stardust Memorials in writing. You understand and agree that you will be responsible and required to pay for any costs associated with any chargebacks that you have initiated against Stardust Memorials.

  1. Taxes. You agree that You will pay all taxes assessed by governmental bodies, whether local, state, provincial, national, or international, associated with your use of the Website. Stardust Memorials will report as income all payments received from you to Stardust Memorials to all proper taxing authorities.

  1. Shipping and Returns. Stardust Memorials provides shipping via FEDEX, USPS, and UPS. All prices are FOB from Traverse City, Michigan. Stardust Memorials’ Return Policy covers orders that were processed incorrectly, orders that were damaged in shipment, and orders that were returned simply because you changed your mind. If you would like to return an item to Stardust Memorials that was not damaged, personalized via engraving or otherwise, or did not have ashes placed in it, you must contact Stardust Memorials within ninety (90) days of the original purchase date at help@stardust-memorials.com or (888) 872-0228 to receive a return authorization number and the address to which you must send your return. You must include this return authorization number with your return either on the outside of the box or inside of the box. Stardust Memorials will pay return shipping costs if the return is a result of our error and if you have obtained an RMA number. You must pay for return shipping when the product was not wanted for any other reason.

  1. Third Party Websites. You acknowledge and agree that the Website may contain links to third party websites or content that Stardust Memorials does not own or control. You are advised to review the terms and conditions of any third-party websites or content linked to through the Website, and you agree that Stardust Memorials will not be responsible for websites not under the ownership or control of Stardust Memorials.

  1. Proposition 65 Notice.

  1. California Proposition 65 Warning to California Residents. Stardust Memorials provides this Proposition 65 warning to comply with California’s Proposition 65 labeling law. Proposition 65 requires Stardust Memorials to provide California consumers with notice when products that it sells exceed the “no significant risk” level or where Stardust Memorials has knowledge that a listed chemical is contained within its products. Due to the number of products that Stardust Memorials sells, and in an abundance of caution, Stardust Memorials has chosen to provide this Proposition 65 warning. Products sold through the Website may be below the “no significant risk” level or may not contain a chemical listed by the State of California at all. However, Stardust Memorials has still chosen to notify consumers to ensure its compliance with California law. Therefore, Stardust Memorials provides the following notice:

  1. WARNING: Products sold through the Website may contain chemicals known to the State of California to cause cancer, birth defects, or other reproductive harm. You are instructed to wash your hands after handling any products purchased through the Website and to keep all products away from children. For more information on Proposition 65, please visit: https://www.p65warnings.ca.gov/.  

  1. Term and Termination. The term of this Agreement will begin upon your first accessing of the Website and will continue until the earlier of the following: (i) Stardust Memorials terminates your access to the Website; or (ii) you cease using the Website and terminate your User Account. Stardust Memorials reserves the right to terminate the Website or your access to the Website in its sole and absolute discretion and without prior notice.

  1. Disclaimer of Warranties and Limitation of Liability. 

  1. YOU ACKNOWLEDGE AND AGREE THAT THE WEBSITE IS PROVIDED ON AN “AS-IS” BASIS AND WITHOUT WARRANTY OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY, AND NON-INFRINGEMENT. WHEREVER PERMITTED BY LAW, YOU ACKNOWLEDGE THAT STARDUST MEMORIALS WILL NOT BE HELD RESPONSIBLE OR LIABLE FOR ANY CLAIMS, DAMAGES, JUDGMENTS, CHARGES, OR FEES ARISING OUT OF OR RELATED TO YOUR USE OF OR ACCESS TO THE WEBSITE, INCLUDING, BUT NOT LIMITED TO, COMPENSATORY DAMAGES, CONSEQUENTIAL DAMAGES, SPECIAL DAMAGES, INCIDENTAL DAMAGES, PUNITIVE DAMAGES, EXEMPLARY DAMAGES, COSTS AND ATTORNEYS' FEES, DAMAGES ARISING OUT OF ERRORS OR OMISSIONS, AND DAMAGES ARISING OUT OF THE UNAVAILABILITY OF THE WEBSITE OR DOWNTIME. YOU ACKNOWLEDGE THAT YOUR USE OF THE WEBSITE IS AT YOUR SOLE RISK AND THAT STARDUST MEMORIALS’S LIABILITY IS LIMITED TO THE AMOUNT THAT YOU PAID TO USE THE WEBSITE OR $1000, WHICHEVER IS LESS.

  1. STARDUST MEMORIALS EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR ANY DAMAGE, INJURY, HARM, COST, EXPENSE, OR LIABILITY ARISING OUT OF OR RELATED TO YOUR USE OR MISUSE OF PRODUCTS PURCHASED THROUGH THE WEBSITE. PRODUCTS PURCHASED THROUGH THE WEBSITE ARE PROVIDED ON AN “AS-IS” BASIS AND WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PUPOSE, TITLE, ACCURACY, NON-INFRINGEMENT, OR QUALITY. SOME JURISDICTIONS DO NOT ALLOW AN EXCLUSION OF IMPLIED WARRANTIES. IF YOU ARE LOCATED IN SUCH A JURISDICTION, YOU ARE ADVISED TO SEEK LEGAL ADVICE TO DETERMINE IF THIS EXCLUSION APPLIES TO YOU.

  1. STARDUST MEMORIALS WILL NOT BE LIABLE TO YOU UNDER ANY LEGAL THEORY, WHETHER IN WARRANTY, CONTRACT, STRICT LIABILITY, TORT, OR NEGLIGENCE, FOR ANY DAMAGES, CLAIMS, INJURIES, JUDGMENTS, COSTS, OR LIABILITIES OF ANY KIND ARISING OUT OF OR RELATED TO YOUR USE OR MISUSE OF PRODUCTS PURCHASED THROUGH THE WEBSITE, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, DAMAGE TO PROPERTY, LOSS OF BUSINESS, LOSS OF INCOME, SPECIAL DAMAGES, INCIDENTAL DAMAGES, CONSEQUENTIAL DAMAGES, PUNATIVE DAMAGES, OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE.

  1. Indemnification. You agree to indemnify, defend, and hold harmless Stardust Memorials, its officers, shareholders, directors, employees, subsidiaries, affiliates, and representatives from any and all losses, including, but not limited to, costs and attorneys' fees, arising out of or related to (i) your use of the Website, (ii) your purchase of products through the Website; (iii) your use or misuse of products obtained through the Website; (iv) your violation of any term or condition of this Agreement; (v) your violation of the rights of third parties, including, but not limited to, intellectual property rights or other personal or proprietary rights; and (vi) your violation of any law, statute, ordinance, regulation, or treaty, whether local, state, provincial, national or international. Your obligation to defend Stardust Memorials will not provide you with the ability to control Stardust Memorials' defense, and Stardust Memorials reserves the right to control its defense, including its choice of counsel and whether to litigate or settle a claim subject to indemnification.

  1. Choice of Law and Stipulation to Jurisdiction. 

  1. You and Stardust Memorials agree that any dispute arising out of or related to this Agreement or your use of the Website, including, but not limited to, your purchase of goods through the Website, will be governed by the laws of the State of Michigan, without regard to its conflict of laws rules. Specifically, the validity, interpretation, and performance of this Agreement will not be governed by the United Nations Convention on the International Sale of Goods. Except for claims that may be brought in small claims court, claims of intellectual property infringement, or claims for injunctive relief by either party, you and Stardust Memorials agree that any dispute or controversy arising out of, in relation to, or in connection with this Agreement or your use of the Website including, without limitation, any and all disputes, claims (whether in tort, contract, statutory, or otherwise), or disagreements concerning the existence, breach, interpretation, application, or termination of this Agreement, will be resolved by final and binding arbitration pursuant to the Federal Arbitration Act in Traverse City, Michigan or, at the option of the party seeking relief, by telephone, online, or via written submissions alone, and be administered by the American Arbitration Association (“AAA”) under the then in force Commercial Arbitration Rules by one arbitrator appointed in accordance with such rules. Such arbitration will be independent and impartial. If the parties fail to agree on the arbitrator within twenty (20) calendar days after the initiation of the arbitration hereunder, AAA will appoint the arbitrator.

  1. This arbitration will be conducted in the English language. The decision of the arbitrator will be final and binding on the parties and judgment on any award(s) rendered by the arbitrator may be entered in any court having jurisdiction thereof. Nothing in this section will prevent either party from seeking immediate injunctive relief from any court of competent jurisdiction, and any such request shall not be deemed incompatible with the agreement to arbitrate or a waiver of the right to arbitrate. The parties undertake to keep confidential all awards in their arbitration, together with all confidential information, all materials in the proceedings created for the purpose of the arbitration and all other documents produced by the other party in the proceedings and not otherwise in the public domain, save and to the extent that disclosure may be required of a party by legal duty, to protect or pursue a legal right or to enforce or challenge an award in legal proceedings before a court or other judicial authority. The arbitrator shall award all fees and expenses, including reasonable attorney’s fees, to the prevailing party. Any judgment rendered by the arbitrator may be entered in any court of competent jurisdiction.

  1. ANY DISPUTE RESOLUTION PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PURCHASE OR USE OF ITEMS FROM OR THROUGH THE WEBSITE, WHETHER IN ARBITRATION OR OTHERWISE, SHALL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, AND YOU AND STARDUST MEMORIALS EXPRESSLY AGREE THAT CLASS ACTION AND REPRESENTATIVE ACTION PROCEDURES SHALL NOT BE ASSERTED IN NOR APPLY TO ANY ARBITRATION PURSUANT TO THESE TERMS.

  1. Any claims must be brought within one year of each applicable purchase or will otherwise be barred.

  1. Force Majeure. Stardust Memorials will not be responsible for any delay or failure in performance of the Website or its associated products arising out of any cause beyond Stardust Memorials’ control, such as acts of God, war, riots, fire, terrorist attacks, pandemics, power outages, severe weather, or other accidents.

  1. Survivability. The representations, warranties, duties, and covenants made by you under this Agreement will survive the termination of this Agreement, your User Account, or the Website, including, but not limited to, your duty to indemnify and defend Stardust Memorials.

  1. Interpretation. This Agreement will be deemed to have been drafted by both parties, and the terms and conditions of this Agreement will not be interpreted against its drafter.

  1. Assignment. You are expressly prohibited from assigning your rights and duties under this Agreement. Stardust Memorials reserves the right to assign its rights and duties under this Agreement, including in a sale of Stardust Memorials or its Website. 

  1. Waiver and Integration. No term or condition of this Agreement or breach of this Agreement will be deemed to have been waived or consented to unless said waiver is writing and signed by the party to be charged. This Agreement is the entire agreement between the parties and supersedes all previous agreements or representations between the parties.

 

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