Terms of Services

Terms of Services

Introduction

Use of FuneralSmart by approved funeral home partners is subject to these Terms of Service.

Definitions and Interpretation

The following terms are used regularly throughout these Terms of Service and have a particular meaning:

(a) ABN means Australian Business Number.

(b) Account means a registered account with FuneralSmart.

(c) Authorise or Authorisation means the authorisation granted by the Customer to the Funeral Home Partner to arrange and conduct funeral services.

(d) Business Day means a day that is not a Saturday, Sunday or any other day which is a public holiday.

(e) Customer means the person or persons named as Funeral Administrator ordering a Funeral Service online and authorising a Funeral Home to arrange and conduct a Funeral Service on their behalf.

(f) Fee means a fee charged by eziFunerals for use of FuneralSmart.

(g) Funeral Contract means the signed contract of sale reached between the Customer and the Funeral Home for the purchase of a Funeral Service.

(h) Funeral Cost means the recommended cost for the Funeral Service as specified in the website.

(i) Funeral Home Partners (the Funeral Home) means approved and/or licensed funeral directors/funeral homes approved by FuneralSmart to arrange and conduct funeral services as specified in the website.

(j) Funeral Home Partner Limit means the maximum number of Funeral Home Partners (within a Referral Area) that may be referred to a Customer, as set by FuneralSmart from time- to-time.

(k) Funeral Service means the funeral service ordered online and any ancillary services as specified in the website, as amended from time to time, by agreement between the Customer and Funeral Home.

(l) FuneralSmart means the online funeral platform owned and operated by eziFunerals Pty Ltd ACN 149 972 734, trading as FuneralSmart. The terms FuneralSmart and eziFunerals may be used interchangeably.

(m) GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

(n) Intellectual Property means all copyright, patents, inventions, trade secrets, know how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property.

(o) Order Online Service means an order for a Funeral Service as specified in the website and that the Customer intends to purchase.

(p) Payment Gateway means eWay or such other payment system eziFunerals may adopt within FuneralSmart from time-to-time.

(q) Personal Information has the same meaning as in the Privacy Act.

(r) Privacy Act means the Privacy Act 1988 (Cth).

(s) Referral Area means a geographical locality defined by the Australian Bureau of Statistics (ABS) and published by the Australian Statistical Geography Standard (ASGS) Edition 3.

(t) Referral Fee means the Fee charged to the Funeral Home Partner on each Funeral Contract, as referred to the Funeral Home Partner from time-to-time.

(u) Subscription Fee means the periodical Fee charged by eziFunerals to access services provided by FuneralSmart, within a defined Referral Area.

(v) Tax Invoice has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

(w) Terms of Service means the terms and conditions of using FuneralSmart by the Funeral Home Partner, as updated from time-to-time, published on the website.

(x) Third Party Suppliers means approved Funeral Home Partners and Third-Party Suppliers contracted to conduct, deliver or supply goods and services as part of the Funeral Service.

(y) User means any user of FuneralSmart, including Customers and Funeral Home Partners.

(z) Website means http:/www.funeralsmart.com.au and any URL where eziFunerals makes FuneralSmart available from time to time.

1. Using Funeralsmart

1.1 General

(a) The Funeral Home agrees that all use of FuneralSmart is subject to these terms and conditions.

(b) FuneralSmart is a digital platform that connects Funeral Homes with Customers in relation to funeral services. eziFunerals is not responsible in any way for the conduct or interactions of Users.

(c) These terms shall apply to any funeral referred by FuneralSmart and conducted by an approved Funeral Home.

(d) The Funeral Home agrees to sign up to eziFunerals ‘Fair Funeral Promise’.

(e) eziFunerals may suspend the Account or restrict the access of any Funeral Home that breaches these Terms of Service.

(f) The Funeral Home agrees and acknowledges that it is independent of eziFunerals and will not hold itself out as an employee, contractor or agent of eziFunerals.

1.2 Account

(a) To use FuneralSmart, the Funeral Home must have set up their Account.

(b) The Funeral Home must provide their name, phone number, funeral home they represent and other information as requested from time to time, as part of the Account sign up process.

(c) The Funeral Home must provide accurate and complete information when setting up an Account and, if necessary, update their Account to ensure that such information is maintained as current for the duration of these Terms of Service.

1.3 Referral Areas

(a) To start using FuneralSmart, the Funeral Home shall register to one or more Referral Areas and pay the applicable Fees in accordance with Clause 2, which are charged on a per Referral Area basis.

(b) There is no limit on the number of Referral Areas the Funeral Home may register to under their Account, subject to any Limit set by eziFunerals. For clarity, if the Funeral Home Limit is exceeded for a Referral Area, then the Funeral Home may not register to that Referral Area.

(c) The Funeral Home acknowledges and agrees that they may only manage Listings in the Referral Area(s) they are registered to.

1.4 Provision of Services

(a) The Funeral Home agrees that on reasonable notice being given and subject to these terms, the Funeral Home will provide funeral services ordered via this website to FuneralSmart Customers.

(b) The Funeral Home agrees that the fees and charges specified in the website are recommended prices only, and that any Funeral Home can charge or negotiate lower fees and charges for any aspect of the funeral of any deceased person.

(c) The Funeral Home agrees to ensure that they maintain the highest of standards (e.g. mortuary standards) of business, professional and personal conduct, including confidentiality. This includes but is not limited to facilities, vehicles and equipment that meet industry standards, have all relevant council approvals in place (funeral parlour, mortuary), have adequate public liability insurance and are compliant with relevant legislation, standards, and codes of practice.

(d) Funerals will not be carried out on Saturday, Sundays and Public Holidays, except by negotiation with the Funeral Home.

(e) The Funeral Home agrees to supply an approved funeral vehicle for the proper conveyance of the deceased to the cemetery/crematorium.

(f) The Funeral Home agrees to supply an approved standard size coffin (and shroud, if applicable) as specified in the website.

(g) For the choice of a coffin, by the Customer, other than what is specified in the website, the Funeral Home’s normal schedule of prices shall apply.

(h) The Funeral Home agrees to procure the issue of a Death Certificate, Cremation Certificate and Cremation Permit in accordance with the relevant State requirements, as specified in the website.

(i) In all cases the Funeral Home shall in addition to the recommended funeral services specified in the website, be entitled to receive additional charges listed in the Funeral Home’s Price List, if the services to which such charges relate are requested in writing by the Customer. Such written request is to be obtained by the Funeral Home and paid by the Customer making the request.

(j) The Funeral Home agrees that Customers of FuneralSmart are free to choose any funeral director and FuneralSmart will not take any steps or engage in any conduct that might limit the ability of Customers to negotiate such fees and charges, and choose such funeral director as they see fit.

1.5 Authorisations

(a) FuneralSmart shall before referring the Customer to the Funeral Home, shall procure the authorisation thereof by a person authorised to arrange a funeral or other person entitled to do so. Such person shall be the person liable to pay the Funeral Home any additional charges for services excluded from the services specified in the website.

(b) Where requested by the Customer, the Funeral Home shall be exclusively responsible for arranging and conducting the Funeral Service for the Customer.

(c) eziFunerals makes no representation or guarantee that the Funeral Home will be selected to arrange and conduct funeral services or will be successful in being Authorised to arrange and conduct funeral services following referral by FuneralSmart.

2. Fees, Payments and Refunds

2.1 Subscription Fee

(a) The Funeral Home agrees to make payment in advance for all Subscription Fees due at such frequency, or on such dates, as the Funeral Home has subscribed for.

(b) The Subscription Fee will apply on an individual per Referral Area basis.

(c) For clarity, a Subscription Fee will be payable by the Funeral Home for each Referral Area they register to. Each Referral Area will have its own subscription period and the Funeral Home may cancel their subscription for one Referral Area but maintain their subscription for other Referral Areas at any time at their discretion.

(d) The Funeral Home may cancel their subscription to a Referral Area at any time within their Account or otherwise by 28 days written notice to eziFunerals. The Funeral Home’s access to that Referral Area will terminate at the end of the Funeral Home’s current subscription period for that Referral Area.

(e) Where the Funeral Home does not cancel their subscription for a Referral Area prior to the expiry of the relevant subscription period, the Funeral Home agrees to the automatic successive renewal of their subscription for the same duration and on the same terms, and to be charged the Subscription Fee accordingly.

(f) All payments shall be made via the Payment Gateway within FuneralSmart, or in such other manner as eziFunerals may direct from time-to-time.

2.2 Referral Fee

(a) The Funeral Home agrees to pay FuneralSmart a referral fee for each such funeral referred and conducted during the period of operation of this agreement as specified in the website.

(b) FuneralSmart will invoice the Funeral Home for the referral fee within 7 days following the conduct of the authorised Funeral Service.

(c) All referral fees payable to FuneralSmart shall be paid by the Funeral Home within 14 days upon receipt of the invoice.

2.3 Variations

(a) eziFunerals reserves the right to introduce or change any Fees from time-to- time by giving the Funeral Home no less than 14 days’ written notice. Any new or changed Fees will apply at the next billing period after the Funeral Home has been given such notice.

(b) If the Funeral Home does not accept a change to any Fees, then they can simply terminate their Account and stop using FuneralSmart.

(c) GST is applicable to any Fees charged by eziFunerals to the Funeral Home. Unless expressed otherwise, all Fees shall be deemed inclusive of GST. eziFunerals will provide the Funeral Home with a Tax Invoice for any payments.

(d) Refunds. No refunds of Fees are offered other than as required by Australian law.

2.4 Late Payment.

(a) If the Funeral Home does not pay the full Fees as required, eziFunerals may suspend the Funeral Home’s access to FuneralSmart for the Referral Area to which the Fees are outstanding.

(b) If Fees are not brought out of arrears within 28 days of becoming overdue, eziFunerals may delete the Funeral Home’s Account in FuneralSmart without notice and terminate this Agreement.

3 General Conditions

3.1 Approval

(a) By accepting the terms and conditions of this Agreement, the Funeral Home is granted a limited, non-exclusive and revocable approval to access and use FuneralSmart for the duration of this Agreement, in accordance with these Terms of Service.

(b) eziFunerals may revoke or suspend the Funeral Home’s approval(s) in its absolute discretion for any reason that it sees fit, including for breach of these Terms of Service by the Funeral Home.

3.2 Modification of Terms

(a) These Terms of Service may be updated by eziFunerals from time-to-time.

(b) Where eziFunerals modifies the terms, it will provide the Funeral Home with written notice, and the Funeral Home will be required to accept the modified terms in order to continue using FuneralSmart.

3.3 Support

(a) eziFunerals provides support for FuneralSmart via the email address support@ezifunerals.com.au.

(b) eziFunerals shall endeavour to respond to all support requests within 3 Business Days.

3.4 Hosting & Improvements

(a) The Funeral Home agrees and accepts that FuneralSmart is hosted by eziFunerals and shall only be installed, accessed and maintained by eziFunerals, accessed using the internet or other connection to eziFunerals servers and is not available ‘locally’ from the Funeral Home’s systems.

(b) As a hosted and managed service, eziFunerals reserves the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter FuneralSmart.

3.5 Third Party Dependencies

(a) The Funeral Home agrees and acknowledges that FuneralSmart has third party dependencies which may affect its availability, including (without limitation) internet service providers and hosting services, and that eziFunerals has no means of controlling the availability of such dependencies and shall not be liable for any interruptions to such.

3.6 Use & Availability

(a) The Funeral Home agrees that it shall only use FuneralSmart for legal purposes and shall not use it to engage in any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by eziFunerals in its discretion.

(b) The Funeral Home is solely responsible for the security of its username and password for access to FuneralSmart. The Funeral Home shall notify eziFunerals as soon as it becomes aware of any unauthorised access of its Account.

(c) The Funeral Home agrees that eziFunerals shall provide access to FuneralSmart to the best of its abilities, however:
i. Access to FuneralSmart may be prevented by issues outside of its control; and
ii. It accepts no responsibility for ongoing access FuneralSmart.

3.7 Privacy

(a) eziFunerals maintains the Privacy Policy in compliance with the provisions of the Privacy Act for data that it collects about the Funeral Home.

(b) The Privacy Policy does not apply to how the Funeral Home handles personal information. If necessary, under the Privacy Act, it is the Funeral Home’s responsibility to meet the obligations of the Privacy Act by implementing a privacy policy in accordance with law.

(c) The Funeral Home acknowledges and accepts:
i. eziFunerals may share the personal information provided by the Funeral Home with the Customer;
ii. All information input into FuneralSmart about an individual is provided with that individual’s consent; and
iii. The Funeral Home must ensure that all Personal Information they enter into FuneralSmart is true and accurate and agrees to update that information in order to ensure that it is current.

(d) FuneralSmart may use cookies (a small electronic tracking code) to improve a Customer’s experience while browsing, while also sending browsing information back to eziFunerals. The Funeral Home may manage how it handles cookies in its own browser settings.

3.8 Intellectual Property

(a) Trademarks. eziFunerals has moral & registered rights in its trade marks and the Funeral Home shall not copy, alter, use or otherwise deal in the marks without the prior written consent of eziFunerals.

(b) Proprietary Information. eziFunerals may use software and other proprietary systems and Intellectual Property for which eziFunerals has appropriate authority to use, and the Funeral Home agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. The Funeral Home warrants that it shall not infringe on any third-party rights using FuneralSmart.

(c) Content. All content (excluding Customer Data) submitted to eziFunerals, whether via FuneralSmart or directly by other means, becomes and remains the Intellectual Property of eziFunerals, including (without limitation) any source code, analytics, insights, ideas, enhancements, feature requests, suggestions or other information provided by the Funeral Home or any other party with respect to FuneralSmart.

3.9 Liability & Indemnity

(a) The Funeral Home agrees that it uses FuneralSmart at its own risk.

(b) eziFunerals makes no warranty or representation that the Funeral Home will receive Authorisations and/or conduct funeral services via FuneralSmart.

(c) The Funeral Home agrees to indemnify eziFunerals for any loss, damage, cost or expense that eziFunerals may suffer or incur as a result of or in connection with the Funeral Home’s use of or conduct in connection with FuneralSmart, including any breach by the Funeral Home of these Terms of Service.

(d) In no circumstances will eziFunerals be liable for any direct, incidental, consequential or indirect damages, damage to property, injury, illness, loss of property, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the Funeral Home’s access to, or use of, or inability to use FuneralSmart, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not eziFunerals knew or should have known of the possibility of such damage, injury, illness or business interruption of any type, whether in tort, contract or otherwise.

(e) Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified. Apart from those that cannot be excluded, eziFunerals and eziFunerals related entities exclude all conditions and warranties that may be implied by law. To the extent permitted by law, eziFunerals liability for breach of any implied warranty or condition that cannot be excluded is restricted, at eziFunerals option to:
i. The re-supply of services or payment of the cost of re-supply of services; or
ii. The replacement or repair of goods or payment of the cost of replacement or repair.

3.10 Termination

(a) The Funeral Home may terminate these Terms of Service immediately by giving eziFunerals 28 days written notice or cancelling their Account.

(b) eziFunerals may terminate these Terms of Service by giving the Funeral Home 28 days written notice.

(c) eziFunerals may terminate these Terms of Service if the Funeral Home is in breach of this Agreement and:
i. That breach is not capable of remedy;
i. The breach is material, wilful, reckless or repetitious; and/or
iii. The breach can be remedied but is not remedied within 5 Business Days of being given notice of that breach by eziFunerals.

(d) Termination of these Terms of Service is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this agreement up to the date of expiry or termination.

3.11 Electronic Communication & Notices

(a) The parties agree to be bound by this Agreement where these Terms of Service are accepted by the Funeral Home electronically.

(b) The Funeral Home can direct notices, enquiries, complaints and so forth to eziFunerals as set out in this Agreement. eziFunerals will notify the Funeral Home of a change of details from time-to-time.

(c) eziFunerals will send the Funeral Home notices and other correspondence to the details that the User submits to eziFunerals, or that the User notifies eziFunerals of from time-to-time. It is the Funeral Home’s responsibility to update its contact details as they change.

(d) A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.

(e) Notices must be sent to the parties’ most recent known contact details.

3.12 General

(a) Special Conditions. The parties may agree to any Special Conditions to this Agreement in writing.

(b) Assignment.
i. The Funeral Home may not assign or otherwise create an interest in this Agreement.
ii. eziFunerals may assign or otherwise create an interest in its rights under this Agreement by giving written notice to the Funeral Home.

(c) Prevalence. To the extent this Agreement is in conflict with, or inconsistent with any Special Conditions made under this Agreement, the terms of those Special Conditions shall prevail.

(d) Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.

(e) Relationship. The relationship of the parties to this Agreement does not form a joint venture or partnership.

(f) Waiver. No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.

(g) Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transaction facilitated by it.

(h) Governing Law. This Agreement is governed by the laws of Western Australia. Each of the parties hereby submits to the exclusive jurisdiction of courts with jurisdiction there.

(i) Severability. Any clause of this Agreement, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.