Terms and conditions
Valid from 1st May 2009
1 General terms
1.1 Please read the following terms and conditions (the "Terms"), which form a contract between you and us and govern your use of http://www.mylastsong.com (the "Site"). The Site is operated by Mylastsong.com Limited, a company registered in England and Wales under registration number 0617054, and with its registered office at c/o Artillery Registrars Limited, 7 Tufton Street, SW1P 3QB ("we"/"us"/"our").
Our VAT Number is 940 9897 73.
2 Use of and access to the Site
2.1 You will be asked to indicate your acceptance of these terms by clicking the 'I Accept' button. In any event and whether or not you are a registered member of the Site, by continuing to access and use the Site, you agree to comply with these Terms. If you do not accept these Terms in full, you must stop using the Site immediately.
2.2 The Site is directed at users resident in the UK only. It is not directed at any person in any country where for any reason the publication or availability of the Site is prohibited and we do not represent that either the Site or its content are appropriate for use or are permitted by the laws of all countries. If you are resident in a country outside of the UK you use this Site at your own risk.
2.3 If your access to the Site, or to any part of it or to the services available through the Site (including, but not limited to members' areas, Lifebox and/or the Lifebox) is subject to the payment of a fee (the "Services"), we may block or suspend access to any such service or part of the Site if you fail to pay any such fee when it is due.
3 Conditions for use
3.1 You agree to abide by all the terms and conditions of these terms and all applicable laws and regulations.
3.2 These Terms incorporate any additional terms and conditions which may govern your relationship with us or one of our suppliers when using a particular service (the "Additional Terms"), which may include (without limitation) a sale and purchase agreement, a distribution agreement or competition or promotion terms.
3.3 If there is a conflict between these Terms and any Additional Terms, the Additional Terms shall prevail to the extent of such conflict.
4 Changes to the Terms
We reserve the right to add, delete and/or modify any of the terms and conditions contained in these Terms, at any time and in our sole discretion, by posting a change notice or the new Terms on the Site. In the event of substantive changes to these Terms, registered members of the Site will be notified by email within 14 days of the changes and may be required to indicate acceptance to the changes. Your indication of acceptance or continued use of the Site following posting of a change notice or new Terms on the Site will constitute binding acceptance of the changes.
5 Pricing Policy
5.1 All prices quoted on the Site are correct at time of publishing and the price of the Services will be the price quoted at the time you place your order. We reserve the right to vary such prices for any reason which may be beyond our control, including but not limited to changes in VAT. All prices stated are inclusive of VAT.
5.2 Despite our best efforts, it is possible that some of the prices on the Site are incorrect. If this happens we will contact you for instructions.
6 Contract formation
6.1 When you place an order for our services, we will send you an acknowledgement email confirming that we have received your order. A binding contract will be formed between us and you when we send you confirmation via email ("Order Confirmation") that your order has been accepted.
7 Order Cancellation
7.1 In accordance with the Distance Selling Regulations 2000, we offer our users the right to cancel all or part of their order during a "cooling off" period of seven (7) days starting on the day you receive the Order Confirmation excluding Saturdays, Sundays and public holidays in England.
7.2 Instructions to cancel all or part of your order in accordance with Clause 7.1 must be in writing by e-mailing us to firstname.lastname@example.org or using the relevant webform [FFW Drafting Note: please insert hyperlink to the relevant form] on the Site.
7.3 Should you decide to exercise your cancellation right in accordance with Clauses 7.1 and 7.2 above we will fully reimburse to you any sum that you have paid for the cancelled Services within thirty (30) days from receiving your instructions to cancel.
7.4 Where we provide Services to you, if you agree to us commencing the provision of the Services before the seven (7) days "cooling off" period expires, then you do not have a right to cancel the Services provided that we have given you the pre-contractual information that we are required to give you under the Distance Selling Regulations 2000.
You will pay for any of the Services ordered via the Site by any of the payment methods set out in the Payment Section [FFW drafting note: please insert hyperlink to payment section] of the Site.
9 Eligibility, registering as a member and young people
9.1 We will only knowingly provide Services to parties that can lawfully enter into and form contracts under applicable law.
9.2 The Site, or some parts of it, contains information of an adult or mature content and allows the sharing of personal information with other members.
9.3 You must be 14 years or older to register as a member of the Site. If you are between 14 and 18 you must obtain you parent's or guardian's permission before registering and may register and/or use the Services only under the supervision of a parent or legal guardian who agrees to be bound by these Terms. The Services are not intended for children under the age of 14..
9.4 By registering, you represent and warrant that:
(a) you are 14 years or older and you have the capacity to understand, agree to and comply with these Terms; and/or
(b) if necessary, you have obtained the relevant permissions from a parent or legal guardian who agrees to be bound by these Terms.
9.6 It is a condition of membership of the Site that all registration details provided are and remain for the duration of your membership true, accurate, current and complete. As a member, you agree to notify us by emailing us at email@example.com of any changes to your registration details.
9.7 During the registration process a member will be asked to select a username and password. We reserve the right to refuse to grant you a username that we believe, in our sole discretion, impersonates another person, infringes somebody else's trademark or other intellectual property right, or is offensive, defamatory or otherwise inappropriate. You hereby acknowledge that you shall not have, now or at anytime in the future, any ownership rights in any personal identifiers or membership names that may be allocated to you for use in connection with the Site and the related Services and that any temporary rights to use such identifiers will terminate on termination of your member's account.
10 Conduct as a member
10.1 Membership of the Site is provided for personal, non-commercial use. Neither the Site nor your membership account may be used for any illegal activities or for a purpose which is not authorised by these Terms. You are responsible for keeping your user name and password secret and secure. Please report any unauthorised use of your account to us at firstname.lastname@example.org as soon as possible.
10.2 A members account enables you to use the Services including to upload, post, transmit or display on the Site data, digital files, information, text, graphics, photographs, audio and video clips and other content (the "Uploaded Content").
10.3 You will be held responsible for all activities on your member's account including any and all Uploaded Content submitted, posted, uploaded and/or displayed on the Site through your account.
10.4 As a member you agree that you will not:
(a) use the Site in any way that may damage or disrupt another user's computer;
(b) modify, create derivative works from, reverse engineer, decompile or disassemble any technology used to provide the Services;
(c) upload, transmit or post any computer viruses worms or Trojan Horses or any other harmful files or programs;
(d) do anything to disrupt, damage, impair, interrupt, slow down or effect the functionality of the Site save to the extent that such slowdown or effect on the functionality of the Site is a result flowing naturally from your normal use of the Site and/or the Services in accordance with these Terms;
(e) use the personal information of any other member for purposes other than establishing contact in manner reasonably expected from social networking sites (including collecting email addresses and other contact information by electronic or other means);
(f) advertise or offer to sell or buy any goods and services for any business purpose, unless specifically permitted to do so by us in writing or by any applicable Additional Terms;
(g) impersonate another person or entity or create a false identity for the purpose of misleading any other user or member as to the identity of the sender or the origin of a message;
(h) do anything that would interfere with another user's ability to use or enjoy the Site or the Services or that would discourage a user or commercial entity from using the Site, purchasing a product, engaging our Services or a commercial partners' services or from forming a business relationship, of any nature, with us; or
(i) send, upload, post or otherwise make available any solicited or unauthorised advertising, promotional materials, "junk mail", "spam", "chain letters", "pyramid schemes" or any duplicative or unsolicited messages.
11 Uploaded Content and Intellectual Property Rights and Your Relevant Warranties and Indemnities to Us
11.1 Except as allowed for Uploaded Content in the appropriate areas under these Terms, you may not adapt, alter or create any of the material or information on theSite.
11.2 You are solely responsible for all Uploaded Content. All Uploaded Content must be either your own work that you have created or you must ask the owner's permission before you upload such material and cite its source.
11.3 You will retain ownership of the Uploaded Content. You hereby grant to us a royalty free, irrevocable, fully transferable, sub-licenceable, non exclusive, perpetual and worldwide licence to copy, reproduce, store, process, modify, adapt, publish, display, distribute, incorporate, transmit and otherwise use the Uploaded Content or any part of it, in any and all media existing now or created in the feature, as we deem necessary for the purpose of providing the Services and/or enabling you to use the Site or the Services.
11.4 Apart from content placed solely in the Lifebox (which will be secure and which we will not use for any commercial purpose (save as is necessary in order to provide you the Service under the licence granted by you in Clause 11.3)) and personal information (which is subject to the terms of the data protection regime in England and Wales), we hereby reserve the right to use for our own purposes (whether commercial or otherwise) the Uploaded Content ( either on the Site or in any other form, including for publicity purposes. Although you continue to retain ownership of all such Uploaded Content, you hereby grant to us a royalty free, irrevocable, fully transferable, sub-licenceable, non exclusive, perpetual and worldwide licence to copy, reproduce, store, process, modify, adapt, publish, display, distribute, incorporate, transmit and otherwise use for any purpose, including commercial purposes, such material or any part of it, in any and all media existing now or created in the feature. Furthermore you hereby represent and warrant that you have all the necessary rights to grant such a licence.
11.5 You agree to waive all moral rights in respect of the Uploaded Content, including the right to be identified as the author of the Uploaded Content and your right to object to derogatory treatment of the Uploaded Content, You agree to perform all further acts necessary to perfect any of the above rights granted by you to us, including the execution of deeds and documents, at our request. You hereby represent and warrant that you have all the necessary rights to grant such a licence.
11.6 You hereby represent and warrant that you own or otherwise control all of the rights in the Uploaded Content and warrant that the Uploaded Content will not:
(a) be unlawful, illegal, defamatory, deceptive, racist, harmful, libellous, offensive, distasteful, hateful, misleading or of an obscene or menacing nature;
(b) contain viruses or any other programs or technology designed to disrupt or damage any software or hardware;
(c) infringe the rights, including privacy and confidentiality and intellectual property rights, of any third party and that you will gain all necessary consents from such third parties before submitting any third party material to the Site;
(d) cause any other member or user of the Site unnecessary distress, anxiety, discomfort, annoyance or otherwise disrupt a users use or enjoyment of the Site; or
(e) negatively impact on the name, goodwill or reputation of MyLastSong.com Ltd, the Site or our commercial partners.
11.7 You hereby agree to indemnify us and hold us harmless for and against any loss, liability, damages, costs and expenses, including reasonable legal costs, complaints, actions, claims or proceedings arising out of or in connection with a breach of your warranties in 11.6(a) and 11.6(c) above.
11.8 We reserve the right to monitor and review the Uploaded Content and to edit, modify censor, reject or delete, without notice, any Uploaded Content which we consider, in our absolute discretion, to be inappropriate, distasteful or contrary to these Terms. We accept no liability to you for any loss or damage that results from any such action. We do not however undertake to monitor, review, censor or screen the Site or any Uploaded Content and accept no obligations to do so.
11.9 If you are a rights owner and believe that your work has been copied or used in a way that infringes your rights, (including your rights to be identified as another or not to subjected to derogatory treatment ("Moral Rights")) or you believe that the material otherwise infringes UK law (e.g. is defamatory or breaches confidence) please notify us in accordance with our Notice and Takedown Policy set out in Clause 13.
11.10 If a member is found by a law court or law enforcement authority of competent jurisdiction or by a regulatory body to be contravening any applicable law, regulation, court order or these Terms, we will provide our full support and co-operation to any law enforcement authority or law court of competent jurisdiction or a regulatory body, which may include disclosing the identity of a member if we are so required by a court decision or order of a law enforcement authority or regulatory body.
12.1 All rights, including copyright and database rights, in the Site and its contents and in the Services, are owned by or licensed to us, or otherwise used by us as permitted by applicable law or the copyright holder. You are entitled to view, copy, download and store temporarily such content from this Site on one computer hard drive, print no more than one copy (no further copies of such material may be made by any means) and store such material in electronic format on disk provided it is for your own personal non-commercial use.
12.2 We grant you a limited revocable license to access and use the Site and the Services for their intended purposes, subject to your compliance with these Terms. This license does not include the right to collect or use information contained on the Site for the following purposes;
(a) to compete with MyLastSong.com;
(b) to create derivative works based on the content of the Site; or
(c) to download or copy the Site (other than page caching).
If you use the Site in a manner that exceeds the scope of this license or you breach these Terms, we may revoke the license granted to you.
13 Notice and Takedown Policy
13.1 In accordance with the Terms we do not undertake to monitor, review, censor or screen the Site or any Uploaded Content. However, we respect the intellectual property rights of others. Therefore, if you are a rights owner and believe that any of the Uploaded Content infringes your rights please notify us at email@example.com and include the following information:
(a) a description of the rights or work that you claim has been infringed, which should include the type of rights or work (such as a book, a sound recording or trade mark) and any relevant further details (such as the title and date of publication, the country or countries to which your rights apply, as applicable);
(b) the grounds on which you claim your rights or work has/have been infringed, which may include:
(i) unauthorised use or reproduction of the work or right (which could include use of material protected by trade marks or copyright);
(ii) breach of a moral right (including the right to be identified as author or the right not to have your work subjected to derogatory comment);
(iii) breach of other UK law (including defamation, breach of confidence);
(c) a description of where the alleged infringing material is located on the Site (including a URL and/or screen shot);
(d) your address, telephone number, and email address so that we may get in contact with you.
13.2 On receipt of a complaint we will promptly acknowledge its receipt and initially assess its validity.
13.3 If we consider the complaint to be without foundation, we will inform you of this and provide supporting rationale. However, if the complaint is plausible based on UK law, we will remove the offending content, pending resolution of the complaint.
13.4 We will advise the member who uploaded the content in question, outline the nature of the complaint and give them the opportunity to refute the complaint. We will investigate the complaint in full, obtaining advice as required, and contact the complainant and the contributor with the result of this investigation and what action we have taken/will take.
13.5 We will endeavour to resolve the issue quickly and amicably to the satisfaction of both the complainant and the contributing member. We may act as mediator between the parties if this will help to resolve complaint. Depending on the outcome the material in question will either be:
(a) reinstated without change, if the complaint was found to be without grounds;
(b) reinstated but only once it has been amended to remove the infringing material; or
(c) permanently removed from the Site.
13.6 If you have any queries relating to this Notice and Takedown Policy, please contact us at firstname.lastname@example.org.
14.1 All names, images, logos identifying us, or our Services, are our proprietary marks. All third party names, logos, images or branding relating to a company, product or service contained on this Site are the trademarks, service marks and trade names of their respective holders. Unless you have obtained the holders' explicit written consent (either from us or the appropriate third party), we do not give permission for any use of any such trademark, service mark or trade name by any person other than the holders. Any such use may constitute an infringement of the relevant holder's rights.
15 External links
15.1 The Site contains links to our partners' websites, which are outside of our control. We have not reviewed such websites and they are provided solely for information purposes. You hereby acknowledge that such websites are independent from the Site, that we have no control over the content of the linked third party websites and that you visit such third party website entirely at your own risk. In accordance with Clause 19.3 we accept no responsibility for the content of such websites nor do we accept responsibility or liability for any losses or penalties whatsoever that may be incurred as a result of your use of any links to any other websites or reliance on the content of any website to which this Site is linked or to which you are directed.
16 Framing, Linking and Deep-linking
You may not frame, link or deep-link this Site to any other website without our prior written consent. Should you wish to frame or to set up a link / deep-link to this Site please contact Paul Hensby at email@example.com.
If you have any complaints about the Site or the Service, we want to hear from you so we can improve our service. Please e-mail us at firstname.lastname@example.org and we will consider your comments carefully.
18 Disclaimer and no warranties
18.1 We are not medical professionals, lawyers or investment advisers and are not authorised or otherwise regulated by the Law Society, the UK Financial Services Authority or any other competent professional body.
18.2 We have made every effort to ensure that the information contained on this Site is accurate and up-to-date at the time of publication. However, you hereby acknowledge that some of the information (including the Uploaded Content) is provided by third parties and/or members of this Site. We do not guarantee the accuracy, timeliness, completeness or fitness for purpose of the information or the Uploaded Content provided on this Site nor that use of this Site will be uninterrupted or error-free. No responsibility is accepted by or on behalf of us for any errors, omissions or inaccurate information on the Site or its content (particularly the Uploaded Content).
18.3 The information and content of the Site is not intended to, nor does it, constitute legal, financial, tax, accounting, business, medical or other professional advice or services or a recommendation to purchase any product or service. The information and content is intended to supplement, not replace, the advice of a professional in the relevant field. It is provided for general information purposes only and does not address your particular circumstances. Accordingly, you should not rely upon the content of this site as a substitute for proper professional advice and should consider seeking your own independent legal, financial investment, tax, medical or other professional advice.
18.4 We do not accept any responsibility for the results of any action taken on the basis of the information provided on the Site and all warranties, including implied warranties of satisfactory quality, fitness for purpose, non infringement and accuracy are excluded to the full extent that they may be excluded under any applicable law.
18.5 Without prejudice to your statutory rights, the Site and all information, text, names, images, pictures, logos, links and icons and other materials (without limitation) are provided 'AS IS' and on an 'AS AVAILABLE' basis without representation warranty or endorsement, express or implied.
18.6 We do not guarantee that the Site or the content, including the Uploaded Content are compatible with your computer equipment nor that the Uploaded Content, the Site or its server is free of errors or viruses, worms, bugs or "Trojan Horses".
18.7 We do not represent or warrant that the Service will be uninterrupted or free from inaccuracies and errors. We will provide the Service using reasonable skill and care and we make no warranties other than those made expressly in these Terms. We hereby disclaim to the extent permitted by law all other express or implied warranties (including without limitation warranties of fitness for a particular purpose and merchantability) other than those which cannot be excluded by law.
19 Limitation of Liability
19.1 Except for liability for fraudulent misrepresentation or in relation to death and personal injury arising from negligence and subject to clause 19.4, neither party shall be liable to the other or any person for any indirect, incidental, punitive or consequential damages arising from the use of the Site, any information contained on the Site or our Services or products displayed on the Site, including, without limitation use or loss of use, loss of data, profits, revenue, business or anticipated savings, whether in action of contract, negligence or other tortious action arising out of or in connection with the use of the Site.
19.2 Except for liability for fraudulent misrepresentation or in relation to death and personal injury arising from our negligence and subject to clause 19.4, we will not be responsible or liable to you or any third party for:
(a) the content of websites to which the Site provides links and we do not accept responsibility or liability for any losses or penalties whatsoever that may be incurred as a result of your use of any links to any other websites or reliance on the content of any website to which this Site is linked or to which you are directed.
(b) any loss arising from use of the information on the Site;
(c) any loss, disruption, damage of your data or computer system which you may suffer as a result of the transmission of any errors or viruses, worms, bugs or "Trojan Horses" or other such destructive feature via the Site; and/or
(d) for deleting any Uploaded Content or other materials relating to your use of the Service on our servers or otherwise in our possession following termination of your use of the Site and/or the Service in accordance with Clause 20.3.
19.3 Except for liability for fraudulent misrepresentation or in relation to death and personal injury arising from our negligence and subject to clauses 19.1, 19.2 and 19.4, neither party's liability to the other or any third person for any and all damage or loss that may arise from the use of the Site, any information contained on the Site or our Services or products displayed on the Site shall exceed the greater of (i) the fees paid by you to us during the twelve months immediately preceding the event that gave rise to such liability or (ii) £2,000 (two thousand pounds sterling).
19.4 The exclusions and limitations of liability in this Clause 19 do not affect your statutory rights as a consumer which cannot under applicable law be excluded by agreement.
20.1 Either party may terminate these Terms upon notice to the other if the other is in material breach of these Terms If you are in material breach of these Terms we may (in our sole discretion) upon notice to you:
(a) suspend, limit your access to or terminate your use of the Site and/or the Service;
(b) suspend, limit your access to or terminate your account; and/or
(c) remove any and all of your Uploaded Content from our Site, servers and directories.
20.2 If you or we terminate your use of the Site and/or the Service, we may delete any Uploaded Content or other materials relating to your use of the Service on our servers or otherwise in our possession.
20.3 The terms and conditions in these Terms that are intended to survive termination of these Terms will survive termination of these Terms.
If any of the terms and/or conditions of these Terms should be determined to be illegal, invalid or otherwise unenforceable by reason of the laws of any state or country in which these Terms are intended to be effective, it/they shall be severed and deleted from these Terms. and all other terms and conditions shall remain in full force and continue to be binding and enforceable.
22 Entire Agreement
23 Rights of Third Parties
Notwithstanding anything else in these Terms, the Contracts (Rights of Third Parties) Act 1999 shall not apply to any contract between you and us and no contractual rights are conferred on any third parties.
24 Governing law and Jurisdiction
These Terms shall be governed by and construed in accordance with the laws of England. The courts of England and Wales shall have exclusive jurisdiction over any claims, dispute or matter arising under or in connection with these Terms.