Final Message Terms & Conditions

Client will upload, transmit, or otherwise provide a final message (the “Final Message”) to BAA in accordance with BAA’s instructions, policies, and requirements. The Final Message may consist of any combination of written, audio, or video data. Client acknowledges that Client is solely responsible creating the Final Message, including the content therein, for verifying the contents of the data before providing the Final Message to BAA, and for providing the Final Message to BAA.

Upon receipt of the Final Message, BAA will store the Final Message (the “Services”) for the term of this Agreement.

Client hereby designates BAA as Client’s personal representative to act on behalf and for the benefit of Client for the purpose of accessing vital records relating to Client’s death, including all death records maintained by any state or local registrar, whether confidential or public, and hereby consents to the release of all such vital records and related information to BAA.

Client shall designate in writing to BAA a personal representative to whom the Final Message should be released upon Client’s death (the “Representative”). Client hereby consents to the release of all information to the Representative necessary for BAA to fulfill its obligations under this Agreement.

BAA will use best efforts to monitor public records to determine if Client is deceased. If BAA reasonably determines that Client is deceased, BAA will also use best efforts to deliver the Final Message to the Representative within ten (10) days of confirming Client’s death. If BAA is unable to locate the Representative, or the Representative is unable or unwilling to take custody of the Final Message, the Client’s estate shall be deemed to be the Representative under this Agreement. BAA strongly encourages Client to inform the Representative in advance, or otherwise incorporate the fact that the Final Message is held by BAA in Client’s estate plan.

Client may instruct BAA in writing to release the Final Message prior to Client’s death.

Notwithstanding anything to the contrary in this Agreement, BAA shall not be required to release, prepare, ship, or deliver the Final Message unless and until any and all payments required to be made under this Agreement have been paid in full.

Upon signing this Agreement, Client shall pay BAA fees in accordance with BAA’s fee schedule for the Services, which may be published on BAA’s website or otherwise provided to Client from time-to-time through any reasonable means (the “Service Fees”).

All Service Fees shall be payable in advance upon notice of payment. The Service Fees are not refundable unless BAA is not able to store the Final Message.

Client is responsible for the payment of all Service Fees that may apply hereunder. Payments shall be mailed to 2913 Shadywood Lane Plano TX, 75023 or such other address as BAA may designate from time to time, or delivered to an account specified by BAA.

BAA will attempt to contact Client if a payment is overdue. If a payment is not received within sixty (60) days of its due date, the account may be forwarded to a collection agency for further action and Client’s credit may be impacted. Client consents to receive autodialed and/or pre-recorded calls from or on behalf of BAA for account collection purposes at the landline and/or mobile telephone numbers that Client provides to BAA.

Client must pay all federal, state, local, sales, use, value added, excise, or other taxes, fees, or duties arising out of this Agreement, or the transactions contemplated by this Agreement (other than taxes based on BAA’s net income), and will indemnify BAA for all expenses incurred as a result of Client’s failure to timely pay such taxes.

Without the prior written consent of the other Party, neither Party shall disclose the terms and conditions of this Agreement, except disclosure may be made as is reasonably necessary to a Party’s bankers, attorneys, or accountants, or except as may be required by law.

BAA will not disclose the content of the Final Message to anyone other than the Representative without the prior written consent of or instructions from Client.

Client acknowledges that BAA’s ability to fulfill its obligations under this Agreement is dependent upon Client’s ongoing cooperation and assistance. Accordingly, Client will supply to BAA, on a timely basis, all information and assistance reasonably necessary for BAA to fulfill its obligations, including maintaining accurate contact information for Client and Representative.

Client shall also take such steps and actions, and provide such cooperation and assistance to BAA and its successors, assigns, and legal representatives, including the execution and delivery of any affidavits, declarations, oaths, exhibits, assignments, powers of attorney, or other documents, as may be necessary for BAA to fulfill its obligations under this Agreement.

In the event that BAA is unable for any reason whatsoever to secure the signature of BAA to any document reasonably necessary or appropriate for any of the foregoing purposes (including access to vital records), Client hereby irrevocably designates and appoints BAA and its duly authorized officers and agents as Client’s agents and attorneys-in-fact to act for and on behalf of Client, but only for the purpose of executing and filing any such document and doing all other lawfully permitted acts to accomplish the foregoing purposes with the same legal force and effect as if executed by Client. This power of attorney is coupled with an interest and will not be impacted by Client’s subsequent incapacity.

Client is and will be the sole and exclusive owner in perpetuity throughout the world of all right, title, and interest in and to the Final Message, including without limitation all copyright and other intellectual property rights therein (including all extensions and renewals thereof, all reversion rights therein, and the right to register and sue to enforce such copyrights against alleged and actual infringers), all exploitation rights therein (including the right to exploit the Final Message, in perpetuity, throughout the world, in any and all media and by any and all technologies and means of delivery whether now or hereafter known or devised), and all allied, ancillary, and subsidiary rights therein.

Client hereby grants to BAA a non-exclusive, world-wide, sublicensable, license for the term of this Agreement to copy, distribute, modify, and otherwise use the Final Message, solely for the purpose of fulfilling its obligations under this Agreement.

In connection with this Agreement, BAA is an independent contractor and as such will not have any authority to bind or commit Client. Nothing in this Agreement shall be deemed or construed to create a joint venture, partnership, or agency relationship between the Parties for any purpose.

CLIENT ACKNOWLEDGES AND AGREES THAT NEITHER BAA NOR ANY OF ITS SHAREHOLDERS, DIRECTORS, OFFICERS, AGENTS, EMPLOYEES, OR AFFILIATES HAVE MADE ANY REPRESENTATION, GUARANTEE, OR WARRANTY, EXPRESS OR IMPLIED, TO CLIENT OF ANY KIND. CLIENT ACKNOWLEDGES AND AGREES TO THE FOLLOWING SPECIFIC DISCLAIMERS.

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL SERVICES, GOODS, AND OTHER DELIVERALBLES ARE PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY. BAA DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM CONDUCT OR COURSE OF DEALING. THERE IS NO GUARANTEE THAT THE FINAL MESSAGE WILL NOT DETERIORATE OR SUFFER ANOTHER FORM OF LOSS.

BAA DOES NOT GUARANTEE THAT BAA WILL BE ABLE TO TIMELY DETERMINE THAT CLIENT IS DECEASED OR NOTIFY THE REPRESENTATIVE.

This Agreement is effective upon your acceptance of terms, which shall be the earliest date that you register with BAA, upload data through BAA’s website, or otherwise make use of the Services.

The initial term of this Agreement is twelve (12) months. Thereafter, this Agreement shall automatically renew for an additional twelve (12) month terms unless terminated earlier by either Party.

14.1. BAA’s Rights to Terminate.

BAA may terminate this Agreement:

1. upon thirty (30) days written notice to Client if Client fails to pay any amount due to BAA under this Agreement; or
2. if BAA does not receive any instructions to release the Final Message within three (3) months of the Client’s death.

14.2. Mutual Rights to Terminate

Any of the Parties, as applicable, shall have the right, in addition, and without prejudice to any other rights or remedies, to terminate this Agreement:

1. at any time and from time to time, with or without cause, on ninety (90) days prior written notice to the other Party;
2. for any material breach of this Agreement that is not cured within thirty (30) days of receipt by the Party in default of a notice specifying the breach and requiring its cure.

14.3. Termination Upon Release of Final Message

This Agreement shall terminate upon the earlier of release of the Final Message to the Representative in accordance with the express terms of this Agreement or release of the Final Message in accordance with Client’s written instructions.

Any expiration or termination of this Agreement is without prejudice to any rights, claims, or causes of action that may have accrued prior to such expiration or termination.

BAA may dispose of the Final Message in its sole discretion and without liability to Client:

1. if Client fails to pay any amount due under this Agreement within six (6) months after notice of termination is sent to Client; or
2. if BAA, after best efforts, is unable to deliver the Final Message to the Representative for any reason within six (6) months of BAA’s confirmation of Client’s death.

Client hereby represents and warrants that: (a) Client is at least 18 years of age and has the right and ability to enter into this Agreement, to perform all obligations hereunder, to grant the rights granted herein, and to provide the Final Message to the full extent set forth herein; (b) the use by BAA (or its successors, licensees, assignees, designees, or affiliates) of the Final Message and rights granted hereunder, do not and will not, to the best of Client’s knowledge after exercising reasonable diligence, defame or violate any right (including, without limitation, copyright, trademark, trade secret, or privacy or publicity rights) of, and do not and will not conflict with or violate any contract or agreement with or commitment made to, any person or entity; and (c) no material supplied or to be supplied by BAA hereunder is subject to litigation or, to the best of Client’s knowledge after exercising reasonable diligence, any claim.

17.1. Breach of Warranty

Notwithstanding BAA’s disclaimer of all warranties, in the event Client claims any breach of a warranty by BAA, Client’s exclusive remedy shall be for BAA to promptly cure the breach. If BAA is unable to cure the breach within ninety (90) days of notification by Client of an alleged breach, Client’s sole remedy is to terminate this Agreement, at which time BAA will refund any and all fees paid by Client pursuant to this Agreement within the ninety (90) day period before Client notifies BAA of the alleged breach.

17.2. Attorney Fees

In the event that any Party to this Agreement shall commence any suit or action to interpret or enforce this Agreement, the prevailing Party in such action shall recover that Party’s costs and expenses incurred in connection with the suit or action, including attorney fees and costs of appeal, if any.

Client understands BAA does not carry insurance to cover any loss or damage to the Final Message from any cause whatsoever and strongly recommends that Client obtain such insurance to protect the Final Message from all perils.

BAA HAS NO LIABILITY OF ANY KIND IN RESPECT OF BAA’S PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT EXCEPT TO THE EXTENT ATTRIBUTABLE TO BAA’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

BAA IS NOT LIABLE FOR ANY LOSS OR DAMAGE TO THE FINAL MESSAGE, SPECIFICALLY INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE CAUSED BY DEFECTS IN ANY STORAGE MEDIUM OR OF ACTS OF GOD.

BAA IS NOT LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES RELATED TO ANY GOODS OR SERVICES PROVIDED UNDER THIS AGREEMENT, INLUDING BUT NOT LIMITED TO INABILITY TO ACCESS THE CONTENTS OF THE FINAL MESSAGE, OR USE OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES INCURRED BY CLIENT OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF BAA OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

CLIENT UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT BAA’S AGGREGATE LIABILITY FOR ANY DAMAGES OR INJURIES SUFFERED BY CLIENT, WHETHER BASED ON A BREACH OF CONTRACT OR WARRANTY, CLAIM OF NEGLIGENCE, MISREPRESENTATION OR OTHER TORT, OR ON ANY OTHER LEGAL OR EQUITABLE THEORY SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY CLIENT TO BAA PURSUANT TO THIS AGREEMENT.

No action arising out of or In connection with this Agreement or the transactions contemplated by the Agreement may be brought by either of the Parties against the other more than two (2) years after the action accrues.

BAA shall, to the fullest extent permitted by law, defend, indemnify and hold harmless Client from and against any and all third party claims, liabilities, losses and expenses (including reasonable attorneys’ fees), directly or indirectly, wholly or partially arising from or in connection with any breach of this Agreement by BAA, any grossly negligent or intentional tortious act or omission of BAA, its employees or agents, in performing its obligations under this Agreement, except to the extent that such claims, liabilities, losses or expenses arise from or in connection with the negligence, gross negligence, or intentional tortious act or omission of Client.

Client shall, to the fullest extent permitted by law, defend, indemnify and hold harmless BAA from and against any and all third party claims, liabilities, losses and expenses (including reasonable attorneys’ fees), directly or indirectly, wholly or partially arising from or in connection with any breach of this Agreement by Client, any negligent, grossly negligent or intentional tortious act or omission of Client in performing its obligations under this Agreement, except to the extent that such claims, liabilities, losses or expenses arise from or in connection with the negligence, gross negligence, or intentional tortious act or omission of BAA.

Should any claim subject to indemnity be made against the Parties, the Party against whom the claim is made agrees to provide the other Party with prompt written notice of the claim. BAA will control the defense and settlement of any claim of indemnity against BAA. Client will control the defense and settlement of any claim of indemnity against Client. The indemnifying Party is not responsible for any costs incurred, including attorney fees, or compromise made by the indemnified Party unless the indemnifying Party has given prior written consent to the cost or compromise.

Each of the Parties agrees to cooperate with the other Party and provide reasonable assistance in the defense and settlement of any and all claims subject to indemnification by the other Party.

At all times while this Agreement remains in effect, you shall promptly notify BAA of changes to your contact information and your payment method. BAA is entitled to rely on the most recent contact information that you provided to BAA.

Any notices to be given under this Agreement shall be by e-mail followed by confirmation letter sent by registered or certified mail, postage prepaid, return receipt requested. If the notice is to Client, such notice shall be addressed to the most recent email and postal address provided by Client. If the notice is to BAA, the notice shall be addressed to admin@pottersmessages.com and 2913 Shadywood Lane Plano TX, 75023 or such other email and/or postal address as BAA may designate from time to time,.

Notices sent in accordance with this paragraph shall be deemed effective on the date of mailing the confirmation letter.

No alteration, modification, amendment, or other change of this Agreement shall be binding on the Parties unless in writing, approved and signed by the Parties.

BAA may assign its rights and delegate its obligations under this Agreement to any successor by merger or consolidation, to any purchaser of all or substantially all of BAA’s assets relevant to the performance of the Services to be provided by BAA hereunder, or to any entity that provides services similar to those that are to be provided by BAA hereunder or that intends to provide such services following any such assignment or delegation. BAA may perform the Services through subcontractors.

This Agreement is not assignable by you without the prior written consent of BAA and any attempted assignment in breach of the foregoing restriction shall be void.

Subject to the foregoing paragraph, this Agreement shall inure to the benefit of and be binding upon all the Parties to this Agreement and their respective executors, administrators, successors, and permitted assigns.

In the event any of the provisions of this Agreement are found by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not be affected.

The headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement. The Parties have been advised by counsel of their choice in connection with this Agreement or have been given adequate opportunity to seek such advice. This Agreement shall be construed and interpreted in accordance with the plain meaning of its language, and not for or against either Party, and as a whole, giving effect to all of the terms, conditions, and provisions of this Agreement.

All warranties, representations, and indemnifications shall survive the termination or expiration of this Agreement. The Parties’ respective obligations to pay any sums owed to the other under the terms of this Agreement will survive any termination of the Agreement.

Except for the obligation to pay money, neither Party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including without limitation an act of war, terrorism, pandemic, act of nature, act of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act, hacker attack, or failure of the Internet. The delayed Party shall give the other Party notice of such cause and shall use its reasonable commercial efforts to correct such failure or delay in performance.

This Agreement shall be governed by and construed in accordance with the laws of the State of Texas.

All disputes arising out of or related to this Agreement shall be brought in and are subject to the exclusive jurisdiction and venue of the state and federal courts located in Collin County, Texas. The Parties irrevocably and unconditionally consent to the jurisdiction and venue of those courts.

The Parties agree that this Agreement may be accepted by any means of signature or acknowledgement, including electronic signatures or acknowledgement through software or other electronic means.

Nothing contained in this Agreement shall be deemed to confer any right or benefit on any person who is not a Party to this Agreement.

Client accepts the terms and conditions of this Agreement by registering with BAA, uploading data through BAA’s website, signing or acknowledging the terms and conditions through software or other electronic means, or otherwise using the Services described herein or related thereto.