The Smalls Terms and Conditions
1. Definitions
a. Agreement means these terms and conditions and the Privacy Policy.
b. Bona Fide Purchaser, BFP means a person who we, in our sole discretion, take to be a person genuinely interested in buying Member Submissions.
c. Content means the text, files, images, photographs, video, sounds, musical works, works of authorship or any other materials.
d. Member means a person who has registered with THE SMALLS.
e. Member Submissions means the Content submitted by Members including any trademarks, trade names, service marks, logos, designs and other proprietary marks and the hosting, sharing and/or publishing of such Member Submissions.
f. Privacy Policy means our privacy policy set out at /privacy-policy.go.
g. Prohibited Content means such Content as set out in the Prohibited Content Policy.
h. Prohibited Content Policy means our policy in which we set out which Content is not allowed to be posted on our Website set out at /prohibited-content-policy.go.
i. Repeat Infringer means a person who is a User who has been notified of having committed infringing activity (as deemed to be infringing by us in our sole opinion) more than twice and/or has had a Member Submission removed from the Website by us, for whatever reason, more than twice.
j. THE SMALLS, we or us means The Smalls Limited, registered number 05968558 with registered address at 167 Fleet Street, London EC4A 2EA.
k. THE SMALLS Content means everything on the Website except for all of the Member Submissions and includes, without limitation, the software, text, graphics, photographs, sounds, music, videos, interactive Content and the trade marks, service marks, confidential information and logos contained therein.
l. Services means any features, content, or applications offered from time to time by THE SMALLS in connection with the Website.
m. Website means www.thesmalls.tv
n. User or you means either a Visitor or Member.
o. User Comments means any comments made by a User in relation to a Member Submission.
p. Visitor means a person who browses the Website.
2. Agreement
a. The terms of this Agreement apply to all Users of the Website, whether or not they provide video content. This Agreement sets out the legally binding terms for your use of the Services and you agree to be bound by them, whether you are a Visitor or a Member. Your use of this Website and the Services (regardless of whether your access or use is intended) is subject to the terms of this Agreement. If you do not accept the terms of this Agreement please do not use the Website and the Services.
b. Some of the Services may require you to download software or Content and/or agree to additional terms and conditions. Unless otherwise provided by the additional terms and conditions applicable to the Services in which you choose to participate, those additional terms are hereby incorporated into this Agreement.
c. We may modify this Agreement from time to time and such modification will be effective as soon as we have posted it on the Website. You agree to be bound to any changes to this Agreement upon your use of the Services after any such modification is posted. It is your responsibility to review the Agreement regularly to ensure that you are aware of the latest terms and conditions.
3. Website
a. THE SMALLS Content is owned or licensed by THE SMALLS.
b. We hereby grant to you a limited, revocable, nonsublicensable licence to reproduce and display THE SMALLS Content (excluding any software code) to use the Website under the terms of the Agreement as long as:
i. your use of the Website as permitted is solely for your personal, non-commercial use, except as otherwise endorsed or approved by THE SMALLS pursuant to clause 15 below;
ii. you will not copy or distribute any part of the Website including any Member Submissions in any medium without our prior written consent;
iii. you will not circumvent, disable or otherwise interfere with security related features of the Website;
iv. you will not modify the Website other than as may be reasonably necessary to use the Website for its intended purpose;
v. you will not collect or harvest any personally identifiable information from the Website including account names;
vi. you will not use the communication systems provided by the Website for any commercial solicitation purposes; and
vii. you will otherwise agree with the terms of this Agreement.
4. Personal account
a. In order to access some features of the Website, you will have to set up an account by providing accurate and complete information. You are solely responsible for your account and any activity on it, and must keep your account password secure. As soon as you become aware of any unauthorised use of your account or password, you must notify us at notify@thesmalls.tv immediately. THE SMALLS will not be liable for any losses caused by an unauthorised use of your account.
b. THE SMALLS reserves the right, in its sole discretion, to reject, refuse to post or remove any posting (including private messages) by you, or to restrict, suspend, or terminate your access to all or any part of the Services at any time, for any or no reason, with or without prior notice, and without liability.
5. Member Submissions
a. You are solely responsible for your Member Submissions. THE SMALLS will not have any ownership rights in any of the Member Submissions posted on the Website. Provided you adhere to the terms of this Agreement, you are free to use your Member Submission after you have posted it on our Website at your discretion.
b. By posting any Member Submission on or through the Services, you hereby grant THE SMALLS a non-exclusive, fully paid, worldwide, transferable, sublicensable and royalty free license to use, edit, modify, publicly perform, publicly display, reproduce, exhibit and distribute or otherwise make available an unlimited number of times such Member Submissions and adaptations thereof on and through any media formats now known or developed in the future and any media channels (including, without limitation, the Services) and allow us to use the Member Submission for any purpose whatsoever (including, without limitation, promoting and redistributing part or all of the Website, the Services and THE SMALLS in general).
c. You also hereby grant each User a non-exclusive licence to access your Member Submissions through the Website and to use, reproduce, distribute, prepare adaptations of, display and perform such Member Submissions as permitted through the functionality of the Website and under the terms of this Agreement.
d. The licences referred to at 5.a, 5b and 5.c will terminate when you remove the relevant Member Submission from the Services provided that any such termination will not affect any sublicence granted to a third party prior to such termination.
6. Warranties given by the Member
a. In connection with your Member Submission you represent and warrant that:
i. you are 18 years or older and that all the registration information submitted by you is complete and accurate and will be kept up-to-date;
ii. you own, or have the necessary licences, rights, consents and permissions to use any third party intellectual property rights including, but not limited to, trade marks, copyright, confidential information and patents in the Content used in your Member Submission;
iii. you have the written consent, release, and/or permission of each and every identifiable individual person in the Member Submission to use the name or likeness of each and every such person in the Member Submissions in the manner contemplated by the Website and the Agreement; and
iv. the consents referred to at clauses 6.a.ii and 6.a.iii enable you to submit your Member Submission in the manner contemplated by this Website and the Agreement.
7. Breaches of the Prohibited Content Policy
a. It is a condition of this Agreement that a User will not breach the Prohibited Content policy set out at /prohibited-content-policy.go.
b. THE SMALLS reserves the right to investigate and take appropriate action against anyone who, in our opinion, is in breach of this Agreement, and in particular, provides Prohibited Content. Such action includes, but is not limited to, reporting the Prohibited Content and your details to the appropriate law enforcement agencies, removing the Prohibited Content from our Website and terminating your Membership.
c. We reserve the right to terminate access to our Website and our Services if a User is, in our absolute discretion, deemed to be a Repeat Infringer.
8. Obligations of the User
a. You must not:
i. send unsolicited bulk email, instant messages or other unsolicited communications of any kind through the Services. You acknowledge that a breach of this clause 8.a.i will cause substantial harm to THE SMALLS, but that the amount of such harm would be extremely difficult to ascertain. As a reasonable estimate of such loss, you agree to pay THE SMALLS £10 for each such unsolicited email or other unsolicited communication you send through the Services; and
ii. you may not use any information obtained from the Services in order to contact, advertise to, solicit, or sell to any Member without their prior explicit consent.
9. Acknowledgements by the User
a. You acknowledge that:
i. we may terminate your Membership without warning if we believe that you are under 18 years of age;
ii. use of the Website and the Services will be at your sole risk;
iii. we do not endorse and have no control over Member Submissions or any User Comments thereon. The Member Submissions and/or User Comments are not necessarily reviewed by THE SMALLS prior to posting and do not necessarily reflect the opinions or policies of THE SMALLS. THE SMALLS makes no warranties, express or implied, as to the User Comments, the Content in the Member Submissions or to their accuracy or reliability;
iv. while we will seek to remove any Prohibited Content as soon as we are made aware of it, Member Submissions and/or User Comments may be inaccurate, offensive, indecent or objectionable. We do not assume any responsibility for monitoring the Services for Prohibited Content or conduct. If, in our sole discretion, we choose to monitor the Website, we nonetheless assume no responsibility for the Content, no obligation to modify or remove any Prohibited Content, and no responsibility for the conduct of the Member submitting any such Content;
v. you are solely responsible for the Content which you post on our Website or through any of our Services, and any material or information that you transmit to other Users and for your interactions with other Users;
vi. you are solely responsible for any royalties or other payments due in relation to any part of your Content;
vii. THE SMALLS reserves the right to restrict the number of emails which a User may send to other Users in any 24-hour period;
viii. we do not represent that the information contained in this Website is accurate, comprehensive, verified or complete, and will accept no liability for the accuracy or completeness of the information contained in this Website or for any reliance placed by any person on the information; and
ix. we do not warrant that the functions or Content accessible from or contained in this Website will be uninterrupted or error free, that defects will be corrected or that this Website or the server that makes it available are virus or bug free neither do we warrant or represent the full functionality, accuracy or reliability of the Content.
10. Fee
a. THE SMALLS reserves the right to charge a fee for use of the Services and to change such fees from time to time. If THE SMALLS raise such fees and your Membership subscription is terminated for whatever reason, you will not be entitled to any refund.
11. Limitation of liability
a. Nothing in this Agreement will exclude or restrict our liability for death or personal injury caused by our negligence.
b. In no event will we, our officers, directors, employees or agents be liable to you for any whether in contract or tort (including negligence or breach of statutory duty or otherwise) for any losses sustained and arising out of or in connection with use of the Website or our Services including, without limitation, loss of profits, loss of data or loss of goodwill (in all these cases whether direct or indirect) nor any indirect, economic, consequential or special loss, resulting from any:
i. Content;
ii. unauthorised access to or use of our secure servers and/or any and all personal information and/or financial information stored therein;
iii. interruption or cessation of transmission to or from our Website;
iv. bugs, viruses or Trojan Horses or similar, which may be transmitted to or through our Website by any third party; and/or
v. errors or omissions in any Content or for any loss or damage of any kind incurred as a result of your use of any Content emailed, posted or transmitted or otherwise made available through the Website or the Services.
12. Indemnity
a. You agree to indemnify and hold THE SMALLS, its operators, owners, affiliates, subsidiaries and/or licensors harmless to the fullest extent permitted by law from and against any and all claims, damages, obligations, losses liabilities, and costs (including reasonable legal expenses) arising from:
i. your use and access of the Website and the Services;
ii. your breach of this Agreement;
iii. your breach of any third party right;
iv. any unauthorised use of your account; or
v. any claim that any of your Member Submissions caused damage to any third party.
13. Term
a. This Agreement remains in full force and effect while you are using the Services or are a Member. You may terminate your Membership at any time, for any reason, by following the instructions on [set out where this information will be available]. THE SMALLS may terminate your Membership at any time, without warning.
b. The terms of clauses 5, 7, 8, 9, 10, 11, 12, 16, 17.g and 17.i will survive the termination of this Agreement.
14. Breach of intellectual property
a. If you believe that your intellectual property has been infringed by its use in a Member Submission, please contact us as soon as possible on prohibit@thesmalls.tv and provide us with the information as set out in our Notification of Alleged Breach of the Prohibited Content Policy Form available at /prohibited-content-policy.go.
15. Sale of a Member Submission
a. If you have indicated to us your interest to sell any of your Member Submissions, you thereby authorise us to forward your personal details comprising name, telephone numbers and email addresses on to a Bona Fide Purchaser to enable such purchaser to contact you and discuss the terms of a possible sale.
b. You acknowledge and agree that the role of THE SMALLS in such sale negotiations will be solely that of an intermediary. We will receive a nominal administration fee from a BFP for each Member whose details we forward.
c. You acknowledge and agree that we will not in any way whatsoever have any function in the negotiations between you and the BFP or be liable for any such negotiations, whether or not they progress into a contractual relationship.
d. You acknowledge and agree that we will not in any way whatsoever have any function in or be liable for any contract entered into between you and the BFP or the contractual relationship thereafter.
e. You acknowledge and agree that we will not be liable to you if the BFP turns out not to be bona fide.
f. We are not in a position to advise you on the merits of any offer made to you by a BFP and recommend that you seek independent legal advice in this context.
16. Disclaimer
a. The Website and Services are provided as seen without representation or endorsement being made and without any warranty of any kind, whether express or implied, including but not limited to, any implied warranties of satisfactory quality, fitness for a particular purpose, non-infringement, non-compatibility, security and accuracy. To the extent permitted by law, all such terms and conditions are excluded. In no event will THE SMALLS be liable in tort or in contract or otherwise, for any losses sustained and arising out or in connection with use of this Website including, without limitation, loss of profits, loss of data or loss of goodwill (in all those cases whether direct or indirect) nor any indirect, economic, consequential or special loss.
17. General
a. We reserve the right to assign our benefits or subcontract all or any obligations under this Agreement.
b. Neither party is liable to the other for failure to perform any obligation under this Agreement to the extent that the failure is caused by any factor beyond the reasonable control of the parties.
c. This Agreement constitutes the entire Agreement and supersedes all other agreements or arrangements, whether written or oral, express or implied, between us. Each of the parties agrees that in entering into this Agreement it does not rely on and will have no remedy in respect of any statement, representation, warranty or understanding of any person, whether party to this Agreement or not, other than as expressly repeated in this Agreement. Nothing in this clause will operate to limit or exclude any liability for fraud.
d. This Agreement will be binding on both our successors and assigns and personal representatives.
e. Neither party will be affected by any delay or failure in exercising or any partial exercising of its rights under this Agreement unless it has signed an express written waiver or release.
f. No person who is not a party to this Agreement will have any right to enforce it pursuant to the Contracts (Rights of Third Parties) Act 1999.
g. If any provision of this Agreement is or becomes illegal, invalid or unenforceable under the law of any jurisdiction, that will not affect or impair:
i. the legality, validity or enforceability in that jurisdiction of any other provision of this Agreement; or
ii. the legality, validity or enforceability under the law of any other jurisdiction of that or any other provision of this Agreement.
h. The Services are hosted in England. THE SMALLS makes no representations that the Website is appropriate or available for use outside England and Wales. If you access the Website from any other jurisdiction you do so out of your own volition and you are responsible for compliance with the applicable laws.
i. This Agreement is to be governed by and construed in accordance with English law. The courts of England are to have jurisdiction to settle any dispute in connection with this Agreement.
I HAVE READ THIS AGREEMENT AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE.
[February 2009]