Terms & Conditions
In this Agreement the following words and expressions have the following meanings:
|Bona Fide Purchaser|
a person who we, in our sole discretion, take to be a person genuinely interested in buying Member Submissions.
text, files, images, photographs, video, sounds, musical works, works of authorship or any other materials.
a person who has registered with THE SMALLS.
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.
such Content as set out in the Prohibited Content Policy.
|Prohibited Content Policy|
our policy, in which we set out which Content is not allowed to be posted on the Website, set out at www.thesmalls.com/privacy-policy
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.
any features, content, or applications offered from time to time by THE SMALLS in connection with the Website.
|THE SMALLS, we or us|
The Smalls Limited, registered number 05968558 with registered address at 30 City Road, London, EC1Y 2AB.
|THE SMALLS Content|
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.
|User or you|
either a Visitor or Member.
any comments made by a User in relation to a Member Submission.
a person who browses the Website.
2.1 The terms of this Agreement apply to all Users of the Website, whether or not they provide Member Submissions or User Comments. 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 or the Services.
2.2 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 which you choose to utilise, those additional terms and conditions are hereby incorporated into this Agreement.
2.3 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 by 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.
3.1 THE SMALLS Content is owned or licensed by THE SMALLS.
3.2 We hereby grant to you a limited, revocable, non-sublicensable licence to reproduce and display THE SMALLS Content (excluding any software code) and to use the Website under the terms of the Agreement as long as:
3.2.1 your use of the Website as permitted is solely for your personal, non-commercial use, except as otherwise endorsed or approved by THE SMALLS in writing;
3.2. 2 you do not copy or distribute any part of the Website including any Member Submissions in any medium without our prior written consent;
3.2.3 you do not circumvent, disable or otherwise interfere with security related features of the Website;
3.2.4 you do not modify the Website other than as may be reasonably necessary to use the Website for its intended purpose;
3.2.5 you do not collect or harvest any personally identifiable information from the Website including account names;
3.2.6 you do not use the communication systems provided by the Website for any commercial solicitation purposes; and
3.2.7 you do otherwise agree with the terms of this Agreement.
3.3 Unauthorised use of the Website may give rise to a claim for damages and/or be a criminal offence. If you would like to make use of the material on the Website other than as set out here, please send an email to email@example.com
3.4 The licence granted to you in clause 3.2 may not be assigned.
3.5 Access to the Website is provided on a temporary basis and we reserve the right to withdraw, amend or suspend the Services (or any part of them) without notice to you. From time to time we may restrict access to certain parts of the Website. We will not be liable if for any reason the Website is unavailable at any time or for any period.
3.6 The Website is operated by THE SMALLS. Our registered address is 30 City Road, London, EC1Y 2AB, United Kingdom. Our company registration number is 05968558 and we are incorporated in the United Kingdom. Our VAT number is 945 3039 22. You can always contact us via email at firstname.lastname@example.org.
4. Personal account
4.1 In order to access some features of the Website, you will have to register and become a member by providing accurate and complete information. You are solely responsible for your member account and any activity on it, and must keep your username and password secure. As soon as you become aware of any unauthorised use of your member account or password, you must notify us at email@example.com immediately. THE SMALLS will not be liable for any losses caused by any unauthorised use of your member account.
4.2 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
5.1 You are solely responsible for your Member Submissions. THE SMALLS will not have any ownership rights in any of the Member Submissions (whether in whole or in part) 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 the Website at your discretion.
5.2 By posting any Member Submission on the Website or through the Services, you hereby grant THE SMALLS a non-exclusive, fully paid, worldwide, transferable, sublicensable and royalty free licence to use, edit, modify, translate, 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).
5.3 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.
5.4 The licences referred to at clauses 5.1, 5.2 and 5.3 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
In connection with each of your Member Submissions you represent and warrant that:
6.1 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;
6.2 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;
6.3 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 Submission in the manner contemplated by the Website and the Agreement;
6.4 the consents referred to at clauses 6.2 and 6.3 enable you to submit your Member Submission in the manner contemplated by this Website and the Agreement; and
6.5 the Member Submission will not infringe the intellectual property rights or right of privacy of any third party.
7. Breaches of the Prohibited Content Policy
7.1 Your Member Submission must not contain Prohibited Content.
7.2 It is a condition of this Agreement that a User will not breach the Prohibited Content policy set out at www.thesmalls.com/privacy-policy
7.3 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 the Website and suspending or terminating your membership.
7.4 We reserve the right to terminate access to the Website and our Services if a User is, in our absolute discretion, deemed to be a Repeat Infringer.
8. Obligations of the User
You must not:
8.1 send unsolicited bulk email, instant messages or other unsolicited communications of any kind through the Services. You acknowledge that a breach of this clause 8.1 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
8.2 you may not use any information obtained from the Website and/or the Services in order to contact, advertise to, solicit, or sell to any Member or Visitor without their prior explicit consent.
9. Acknowledgements by the User
You acknowledge and agree that:
9.1 we may terminate your membership without warning if we believe that you are under 18 years of age;
9.2 use of the Website and the Services will be at your sole risk;
9.3 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;
9.4 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 any Content, no obligation to modify or remove any Prohibited Content, and no responsibility for the conduct of the Member submitting any such Content;
9.5 you are solely responsible for the Content which you post on the 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;
9.6 you are solely responsible for any royalties or other payments due in relation to any part of your Content (whether or not it is included in a Member Submission);
9.7 THE SMALLS reserves the right to restrict the number of emails or other communications which a User may send to other Users in any 24-hour period;
9.8 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
9.9 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 or reliability of the Content.
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
11.1 Nothing in this Agreement will exclude or restrict our liability for death or personal injury caused by our negligence.
11.2 In no event will we, our officers, directors, employees or agents be liable to you, 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:
11.2.1 loss of profits (whether considered to be a direct or indirect loss);
11.2.2 loss of data (whether considered to be a direct or indirect loss);
11.2.3 loss of goodwill or damage to reputation;
11.2.4 loss of business; and/or
11.2.5 any indirect, economic, consequential or special loss.
11.3 In no event will we, our officers, directors, employees or agents be liable to you, 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:
11.3.1 any Content;
11.3.2 unauthorised access to or use of our secure servers and/or any and all personal information and/or financial information stored therein;
11.2.3 interruption or cessation of transmission to or from the Website; and/or
11.2.4 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.
11.4 THE SMALLS’ liability to you for any other loss or damage of any kind, however it arises, and whether caused by tort (including negligence), breach of contract or otherwise, even if foreseeable, is limited to the greater of (1) £10 and (2) the amount paid to THE SMALLS by you in the 12 month period preceding the claim in question.
11.5 To the extent permitted by law, we exclude all conditions, warranties and other terms which may otherwise be implied by statute, common law or the law of equity.
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:
12.1 your use and access of the Website and the Services;
12.2 your breach of this Agreement;
12.3 your breach of any third party right (including, without limitation, any third party’s intellectual property rights or right of privacy);
12.4 any unauthorised use of your member account; or
12.5 any claim that any of your Member Submissions caused damage to any third party.
13.1 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 thesmalls.com/help THE SMALLS may suspend or terminate your membership at any time, without warning.
13.2 The terms of clauses 5, 6, 7, 8, 9, 11, 12, 16, 17.3, 19.3, 19.4, 19.8, 19.9 and 19.11 will survive the termination of this Agreement.
14. Breach of intellectual property
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 firstname.lastname@example.org and provide us with the information as set out in our Notification of Alleged Breach of the Prohibited Content Policy Form available at www.thesmalls.com/privacy-policy
15. Sale of a Member Submission
15.1 If you have indicated to us your interest to sell any of your Member Submissions, you authorise us to forward your personal details comprising name, telephone numbers and email addresses on to a Bona Fide Purchaser to enable such person to contact you and discuss the terms of a possible sale.
15.2 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 Bona Fide Purchaser for each Member whose details we forward.
15.3 You acknowledge and agree that we will not in any way whatsoever have any function in the negotiations between you and the Bona Fide Purchaser or be liable for any such negotiations, whether or not they progress into a contractual relationship.
15.4 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 Bona Fide Purchaser or for any loss incurred or damaged suffered as a result of the contractual relationship between you and the Bona Fide Purchaser.
15.5 You acknowledge and agree that we will not be liable to you if the Bona Fide Purchaser turns out not to be bona fide.
15.6 We are not in a position to advise you on the merits of any offer made to you by a Bona Fide Purchaser and recommend that you seek independent legal advice in this context.
16.1 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.
16.2 We disclaim all liability and responsibility arising from any reliance placed on materials or Content on the Website or in the Services by any Visitor or by anyone informed of the contents of the Website or Services.
17. Viruses, hacking and other offences
17.1 You must not misuse the Website by knowingly introducing viruses, Trojans, worms, logic bombs or other material which is malicious or technologically harmful. You must not attempt to gain unauthorised access to the Website, the server on which the Website is stored or any server, computer or database connected to the Website. You must not attack the Website via a denial of service attack or a distributed denial of service attack.
17.2 By breaching this provision, you would commit a criminal offence under the Computer Misuse Act 1990 of the United Kingdom. We will report any such breach to the relevant law enforcement authorities and we will co-operate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use the Website will cease immediately.
17.3 We will not be liable for any loss or damage caused by a distributed denial of service attack, viruses or other technologically harmful material that may be transmitted to or through the Website or that may infect your computer equipment, computer programs, data or other proprietary material due to your use of the Website or to your downloading of any material posted on it, or on any website linked to it.
18. Linking to the Website
18.1 You may link to our home page, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists.
18.2 You must not establish a link from any website that is not owned by you.
18.3 The Website must not be framed on any other site, nor may you create a link to any part of the Website other than the home page. We reserve the right to withdraw linking permission without notice. The website from which you are linking must comply in all respects with this Agreement.
18.4 From time to time, the Website may also include links to other websites. These links are provided for your convenience to provide further information. They do not signify that we endorse the websites. We have no responsibility for the content of any of the linked websites, nor for any loss or damage that may arise from your use of them.
19.1 We reserve the right to assign our benefits or subcontract all or any obligations under this Agreement.
19.2 We do not tolerate any form of bullying on the Website or through the Services. If we determine that you have been involved in any form of bullying against another User, we are entitled to suspend or terminate your membership.
19.3 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.
19.4 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 19 will operate to limit or exclude any liability for fraud.
19.5 This Agreement will be binding on both our successors and assigns and personal representatives.
19.6 Notices under this Agreement may be sent electronically to you using the information provided during the registration process.
19.7 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.
19.8 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.
19.9 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:~
19.9.1 the legality, validity or enforceability in that jurisdiction of any other provision of this Agreement; or
19.9.2 the legality, validity or enforceability under the law of any other jurisdiction of that or any other provision of this Agreement.
19.10 The Services are hosted in England. THE SMALLS makes no representation that the Website is appropriate or available for use outside of 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.
19.11 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.
[18 May 2012]