Terms of Use

Terms of Use Agreement

Welcome to My Wishes Are

This agreement governs the use of the My Wishes Are platform, website and all associated applications and services (My Wishes Are) and is entered into between My Wishes Are Pty Ltd ACN 622 158 963 (us, our, we) and any person accessing and using My Wishes Are (you, your, Member, Nominee - as applicable).

By clicking ‘I Agree’ on this agreement or by using or continuing to use My Wishes Are you accept that this agreement applies to your use of My Wishes Are.

Our Privacy Policy also forms part of this agreement.

1. Membership

My Wishes Are allows people who sign up for an account with us (Members) to enter their specific wishes and directions regarding their funeral and burial arrangements after they pass on, into their My Wishes Are digital account (Account). Members may also nominate trusted people, such as family members and friends, to access their Account to view the Member’s wishes (Nominees).

To become a Member and access the full features of My Wishes Are you must create an Account. As part of this process you will be required to pay us a one-off fee of $ in consideration for access to your Account (Membership Fee).

Access to your Account will commence on the day the Account is created and the Membership Fee is paid. Access will continue on an ongoing basis unless your Account is deactivated in accordance with this agreement.

2. Membership Fee

When creating your Account you must provide us with a current, valid, accepted method of paying the Membership Fee (Payment Method). We currently accept payment via credit or debit card. You will also be required to provide us with standard billing information such as your name, contact phone number, physical billing address and email address. You are solely responsible for ensuring that your Payment Method and billing details are correct.

We may use a third party payment service provider (Provider) to process your payment of the Membership Fee. A Provider may charge you fees in addition to the Membership Fee and may have their own terms and conditions which will apply to you. Use of a Provider’s services is at your own risk.

Upon creating your Account and providing us with a Payment Method you authorise us to automatically and immediately charge you the Membership Fee via the Payment Method either directly or through a Provider.

The Membership Fee is quoted in Australian dollars. The issuer of your Payment Method may charge you a foreign transaction fee or other charges for payment of the Membership Fee if you are not based in Australia.

If the Membership Fee is subject to Goods and Services Tax or any other taxes or fees imposed by any authority or government agency (Taxes), the amount payable by you is inclusive of those Taxes.

If your Account has been created successfully we will send you confirmation of this, along with Member level login credentials to access your Account and a receipt for payment of the Membership Fee, via your nominated email address.

3. Nominee Access

A Member may appoint up to five Nominees at any one time per Account.

If a Member has appointed you as a Nominee via their Account, we will send you an email confirming your appointment via the email address provided by the Member. This email will also include your Nominee level login credentials. These credentials will allow you to access a restricted, non-editable version of the Member’s Account for the purpose of reviewing the funeral and burial wishes of the Member.

As a Nominee, you will have ongoing access to the relevant Member’s Account unless that Account is deactivated pursuant to this agreement or the Member revokes your appointment as a Nominee.

4. Your Obligations

By accessing My Wishes Are you accept and agree that:
  1. you are at least 18 years of age, or the age that you are considered an adult in your country;
  2. any Payment Method, billing, identity details or contact information you have provided us with is true, complete and accurate and you will promptly inform us of any changes via updating your Account;
  3. all rights attaching to your Account are granted solely to you. You are responsible for keeping your Member login credentials safe and you must not give them to anyone else;
  4. you must keep your Nominee login credentials safe and not provide them to anyone else or allow any third party to access the Account of which you are a Nominee;
  5. as a Nominee, you will only access an Account for the purpose of viewing the Member’s wishes through the functions provided by My Wishes Are;
  6. you are responsible for any use of your Account or login credentials by a third party;
  7. you will not sell, license or otherwise transfer your Account without our prior consent;
  8. you will only use My Wishes Are for your own personal, non-commercial use and always in accordance with this agreement;
  9. you will use My Wishes Are in accordance with all applicable laws and regulations;
  10. you must not download, reproduce, distribute, modify, display, publicly screen, perform, publish, license, create derivative works from, offer for sale or otherwise use My Wishes Are other than for the purposes intended by this agreement;
  11. you will not attempt to do any of the following:
    1. anything that interferes with the normal, intended use of My Wishes Are;
    2. upload viruses, spyware or other malicious code to My Wishes Are;
    3. attempt a denial or service attack or other forms of technical abuse which could hinder the functionality, accessibility or performance of My Wishes Are;
    4. modify, create derivatives of or improvements to, decompile or otherwise attempt to access or extract the source code of My Wishes Are without our permission;
    5. circumvent, remove or alter any digital rights management, anti-piracy or other protective measures used in connection with My Wishes Are; or
    6. decompile, reverse engineer, disassemble, manipulate, impair or disable My Wishes Are in any way.

5. Member Content

You are solely responsible for any content you submit, post, publish or upload to your Account (Member Content). You enter any Member Content onto My Wishes Are at your own risk.

Your Member Content must not:

  1. reasonably be considered to be defamatory, misleading, harassing, false, obscene, threatening, pornographic, hateful, racially or ethnically offensive;
  2. infringe on the intellectual property or other proprietary rights of us or third parties;
  3. contain any unauthorised or unsolicited marketing communications or hyperlinks;
  4. contain any viruses, worms or other potentially damaging files;
  5. violate any law or regulation; or
  6. encourage others to breach this agreement or any law.

Nominees will be able to access and view the Member Content of the Member who appointed them, and must do so in accordance with this agreement. Even if, as a Member, you subsequently delete your Member Content or revoke the appointment of a Nominee, if your Nominee has previously had access to that Member Content, they may have retained copies of it.

A Nominee may not necessarily implement any instructions or wishes you have made in your Member Content in full or at all. You acknowledge that we do not restrict or otherwise control how a Nominee uses Member Content once accessed and that we are not responsible for ensuring that a Nominee carries out any wishes or directions you have made in your Member Content.

If, as part of your Member Content, you provide us with the names and email addresses of your Nominees (Nominee Details), you warrant and represent to us that you have received express permission from those Nominees to provide us with the Nominee Details and for us to use the Nominee Details to provide the Nominees with information relating to their appointment as a Nominee and otherwise to communicate with them as permitted by this agreement.

We may place limits on the amount and type of Member Content which can be stored on My Wishes Are and we may remove Member Content at any time without notice where the Member Content breaches this agreement or where we otherwise believe legal liability or damage to our reputation may arise in connection with the Member Content.

If, as a Nominee, you are accessing a Member’s Account, you acknowledge that we are not responsible for, nor do we review, monitor, endorse, control or approve of any Member Content and your use and reliance on Member Content is at your own risk.

Any information or guidance provided by us via My Wishes Are to assist a Member in completing their Member Content, or to assist a Nominee in accessing Member Content or otherwise, is provided as general information only and is not intended to be a substitute for independent legal or other professional advice. You should always consider your own circumstances and use your own judgement in deciding whether to rely on any information accessible via My Wishes Are.

My Wishes Are is not provided as, and should not be considered to be, a substitute for, or an alternative to, a legally binding, duly drafted and executed Will. You should always seek legal advice from a qualified law practitioner for assistance with arranging your legal affairs and estate planning.

My Wishes Are is provided to assist Members in communicating their funeral and burial wishes to their Nominees. You should not consider any directions or wishes which form part of your Member Content to be legally binding on your Nominees or anyone else.

6. Third Party Content

We may occasionally offer promotions in conjunction with our third party affiliates via advertising, hyperlinks and other content on My Wishes Are (Third Party Content).

Some Third Party Content may be provided by our third party affiliates and we may give or receive a payment in exchange for you accessing and/or proceeding to enter into a transaction through the Third Party Content.

Third Party Content may vary from time to time and your use may be subject to terms and conditions set by that third party which you should familiarise yourself with. This agreement does not apply to any sites or resources outside of My Wishes Are, regardless of whether they have been accessed via Third Party Content.

We are not responsible for any Third Party Content and you use, rely and enter into transactions through Third Party Content at your own risk. We do not endorse or have any control over the nature, content or availability of any Third Party Content.

7. Intellectual Property

All present and future intellectual property rights worldwide including without limitation, any registered or unregistered copyright, trademark, patent, design, trade secret, know-how, business name or other proprietary right including improvements thereto and all other proprietary rights in My Wishes Are and all components thereof, including but not limited to, any graphics, text, images, video, audio, code, design, compilations and ‘look and feel’ of My Wishes Are, belong to and vest in us upon creation.

Subject to your compliance with this agreement, we grant to you a limited, non-exclusive, revocable, non-transferable, non-sub-licensable license to use My Wishes Are solely for the purposes contemplated by this agreement in your capacity as a Member, Nominee or other user (as applicable to you).

You retain ownership of any Member Content which belongs to you. However, you grant to us a license to use any Member Content specified in our Privacy Policy for the purposes set out in our Privacy Policy. You warrant to us that you have all the rights, title and authority required to grant us the above license.

Ownership of all data which provides descriptive, technical, statistical and other metadata type, non- personal information regarding your use of My Wishes Are vests in us upon creation.

8. Termination & Refunds

You may deactivate your Account at any time by sending written notice to [admin@mywishesare.com.au]. Upon deactivation of your Account, you will no longer be a Member and neither the Member nor its Nominees will have access to the related Account. We may delete your Member Content upon deactivation.

In addition to any other rights we may have, if we suspect you are using an Account or My Wishes Are improperly or illegally or if you otherwise do not comply with this agreement, we reserve the right to immediately terminate, restrict or suspend access to an Account, at our option, without notice or liability to you.

We may discontinue or suspend your Account if we reasonably believe that the Account is no longer required by you for any reason. After 11 months from the date your Account was last accessed, we will send you an email to confirm that you still require your Account to remain active. If you do not access your Account or we do not receive any response from you to this email, we may deactivate your Account one (1) month following this email, equal to twelve (12) months past last Account access.

We may discontinue or suspend our provision of My Wishes Are at any time without reason or liability to you, however we will provide you with notice of the discontinuance or suspension in advance if you are a Member.

We will not refund the Membership Fee to you in any circumstances unless we decide, at our sole discretion, to do so, or if we are required to provide a refund by law.

Any request for a refund of the Membership Fee must be sent to [admin@my wishesare.com.au] and should outline why you are requesting the refund. Any refunds will be paid within a commercially reasonable time of us agreeing to pay the refund.

Inactive/Expired accounts will be permanently deleted three (3) months after becoming inactive/expired. You will receive monthly emails to notify you of the approaching deletion.

9. Liability

To the maximum extent permitted by law, My Wishes Are is provided ‘as is’ and ‘as available’ with all faults and without any express or implied warranty, guarantee or representation made by us as to the accuracy, reliability, security, availability, accessibility or completeness of My Wishes Are.

We do not guarantee, warrant or represent that My Wishes Are:

  1. will produce any outcome or meet any expectation of any person, or in particular, that the use of My Wishes Are will result in any particular burial or funeral wishes or other directions of a Member being fulfilled after their death;
  2. will be available for the lifetime of a Member or its Nominee/s;
  3. is provided error/bug free or uninterrupted;
  4. provides accurate, reliable, suitable or complete information; or
  5. is free of viruses or other spyware.

We disclaim, and you hereby release us from, all liability for any claims, losses, costs (including legal costs), expenses, damages (including, but not limited to, special, indirect, consequential loss or damage, loss of profits or loss of data) or other liability (Loss), howsoever arising directly or indirectly in connection with this agreement and your use of My Wishes Are, except to the extent a grossly negligent act or omission by us caused or contributed to the Loss arising.

Despite anything to the contrary herein, this agreement does not limit any non-waivable rights that you may be entitled to by law and does not purport to exclude any obligations imposed on us by statutory provisions which cannot be contracted out of. My Wishes Are comes with guarantees that cannot be excluded under the Australian Consumer Law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), you may be entitled to a resupply or refund for a major failure of My Wishes Are. You may also be entitled to compensation for any reasonably foreseeable loss or damage caused by a failure of My Wishes Are.

Where our liability cannot be fully excluded by law, and where permitted by law, we limit our maximum liability at our option, to the supply of My Wishes Are again or the payment of the cost of having My Wishes Are being supplied again, such amount in any case not exceeding a refund of the Membership Fee paid by you.

10. Indemnity

You hereby agree to indemnify and hold us harmless from and against any Loss arising out of or in connection with your use of My Wishes Are and any breach of this agreement by you. The indemnity given by you is limited to the extent that any gross negligence by us has caused or contributed to the Loss arising.

11. Miscellaneous

  1. You may only assign your rights and obligations under this agreement with our written consent;
  2. We may subcontract or assign to any party our rights and obligations under this agreement;
  3. Except where expressly stated otherwise herein, this document embodies the entire agreement between you and us;
  4. Our failure to require full or partial performance of a provision of this agreement does not affect our right to require performance subsequently;
  5. A right under this agreement may only be waived in writing signed by the party granting the waiver, and is effective only to the extent specifically set out in that waiver;
  6. The laws of Queensland, Australia govern this agreement. Each party irrevocably submits to the non-exclusive jurisdiction of the Queensland courts and courts competent to hear appeals from those courts;
  7. A clause or part of a clause of this agreement that is illegal or unenforceable may be severed from this agreement and the remaining clauses or parts of the clause continue in force;
  8. Unless otherwise expressly stated in this agreement, any notice or consent to be given to a party under this agreement is only effective if given in writing (including via email), to that party;
  9. This agreement shall prevail to the extent of any inconsistency between it and any other document associated with the transactions contemplated by this agreement;
  10. Unless otherwise expressly stated in this agreement, this agreement does not create a relationship of employment, trust, agency, or partnership between the parties nor constitutes or may be construed to constitute a party as the representative of another party; and
  11. Sections 9, 10 and 11 of this agreement survive termination of this agreement.

12. Variations

We may vary this agreement and My Wishes Are from time to time. In particular, the content, layout, functionality and design of My Wishes Are may vary, particularly as we continue to develop and improve My Wishes Are over time. If we make any major changes to this agreement or My Wishes Are that are directly related to your Account we will let you know in advance.

If we make any other changes to this agreement or My Wishes Are then we may do this without notice to you. You are responsible for regularly reviewing this agreement to keep up to date with the latest changes as they will apply to your continued use of My Wishes Are.

The quality, availability, compatibility and speed of delivery of My Wishes Are may also vary from time to time due to a number of factors personal to you such as your internet connection, your location and your device.

13. Contact Us

If we need to get in touch with you, we will usually send an email to the address you provided when you signed up for your Account. Any electronic communications given by us should be treated as a notice given in writing.

If you have comments, concerns or complaints regarding this agreement please contact us directly via [admin@mywishesare.com.au]. We will endeavour to get back to you as soon as possible, but we ask that you allow us up to 30 days to respond before taking any other steps.

Last updated – 15/11/2017