I. Introduction
This Code of Conduct and Terms of
Use (collectively referred to as the "Codes") will apply to each
subscriber who wishes to use the Roars not Whispers Website (the
"Website") and/or participate in its discussion groups
("Subscriber" or "You"). Each Subscriber must be over 16 and comply
and adhere to this Code in order to access and use the Website or participate
in any discussion group o the Website which contains detailed information on
Subscribers' goods, services, skills, resources, requirements, opportunities,
opinions, etc. In order to use and participate in this Website, all Subscribers
must accept this Code by clicking the "I accept" button at the end of
this document. Upon such acceptance, each Subscriber will be given a unique
[logon ID] for participation in discussion groups (which will, for the purpose
of security, be monitored and tracked by the administrators of Roars not
Whispers "Moderator"). Roars not Whispers (the "Website Owner")
reserves the right to amend these terms of use at any time by amending and
re-posting the terms on the Website.
Furthermore, should you not click
"
I
accept
"
button and become a subscriber but nevertheless wish to browse or
otherwise use the Website the Code shall apply to you and but by any such use you
agree to be bound by the Code.
1. Basic Requirements
1.1 Each Subscriber and any material
including (without limitation) films, text and videos which he/she posts onto
the Website or to its discussion groups ( "
Material") must comply with
the following basic standards:
(a) All information and activities must be legal, decent and honest (in
terms of the Subscriber's applicable law and standards);
(b) Data protection legislation within the Subscriber's applicable law must
be adhered to in order that the collection of personal information is not
traded or disclosed illegally;
(c) Any other applicable trading standards and laws and regulations as the
same are created from time to time and notified to Subscribers direct and on
this Website.
2. Specific Responsibilities
of Subscribers
2.1 Each Subscriber represents and
warrants on each and every visit to or use of the Website that:
(i) all Material submitted by the Subscriber is true and accurate;
(ii) the Subscriber is 16 years old or older and
(iii) the Subscriber’s use of the Website complies and will comply with all
applicable laws.
2.2 Each Subscriber is solely
responsible for the accuracy, legality, currency and compliance of its own
Material and will be solely liable for false, misleading, inaccurate, infringing
or other actionable material contained or referred to therein.
2.3 Each Subscriber is solely
responsible for maintaining the confidentiality of their unique logon ID, and
for its use. As traffic on this Website and in the discussion groups is monitored,
evidence of use of the logon ID can be produced to support or defend any
dispute or actionable cause or matter which arises in relation to the same.
2.4 Where Subscribers collaborate
with one another as a result of use of this Website or the discussion groups,
they do so as independent contracting parties. Subscribers acknowledge that the
Website Owner will not in any way be construed as a party to such collaboration
nor be liable nor responsible in any way for the dealings of such collaboration
or the parties to such collaboration.
3. Responsibilities of
the Website Owner
3.1 The Website Owner will
check/confirm the identity of Subscribers before a logon ID is given for any
Subscriber participating in discussion groups on the Website.
3.2 The Website Owner will manage
and oversee the Website and discussion group and will appoint a
"
Moderator
"
for such purpose. This appointee will also be responsible for administering the
Complaints and Sanctions Procedure specified in Section 4 below.
3.3 The Website Owner reserves the
right in its sole discretion to refuse to post, to remove any Material posted
by any Subscriber and to restrict any Subscriber access to any part of the
Website at any time at the Website Owner’s sole discretion.
3.4 You shall ensure that the
information you post on Roars not Whispers and that you provide to other Users.
Your Roars not Whispers profile shall not include the following items:
telephone numbers, street addresses, and any photographs or videos containing
nudity, or obscene, lewd, excessively violent, harassing, sexually explicit or
otherwise objectionable subject matter. Despite this prohibition, information
provided by other Roars not Whispers Members (for instance, in their Profile)
may contain inaccurate, inappropriate, offensive or sexually explicit material,
products or services, and Roars not Whispers assumes no responsibility or
liability for this material. If you become aware of misuse of the Roars not
Whispers Services by any person, please contact a Roars not Whispers staff
member by email, at the address in the Contact us section or click on the
"
Report Abuse
"
link in the forums.
4. Complaints and
Sanctions Procedure
4.1 The Website discussion group is
a self-regulatory facility for Subscribers only and any complaint by a
Subscriber will, in the first instance, be referred to the Website Moderator,
who shall have all the powers of an arbiter.
4.2 The Website Moderator will deal
with complaints expeditiously and where necessary, call upon evidence of the
applicable Subscribers in dispute.
4.3 Sanctions available to the Moderator
will include the following:
(i) suspending or expelling the guilty Subscriber;
(ii) referring the matter to the appropriate law enforcement agency, where
the dispute is of a criminal or illegal nature;
(iii) referring the matter to a court of competent jurisdiction if the
dispute necessitates the same (e.g requires an interdict/injunction, seizure or
similar judicial measure).
5. Indemnity and Waiver
5.1 Each Subscriber agrees to
indemnify and keep indemnified the Website Owner, their successors and assigns,
and each of their respective directors, officers, employees and agents
(collectively
"
Website Owner
"
) from and against any and all
liability, damages, losses, claims ( including reasonable legal fees) resulting
in any way from its use of and from any Material posted on this Website, to its
discussion groups or from any other matter relating to its participation herein
including but not limited to use of the information contained on the Website,
from discussion groups or arising from any introduction or collaboration
resulting there from or otherwise arising from using the Website or arising
from any breach of this Agreement and/or any breach of your representations and
warranties set forth above and/or if any Material that the Subscriber posts.
5.2 Each Subscriber waives any right
to bring any claim or action against the Website Owners for any loss, damage or
injury arising from use of the Website or any Material from the Website or from
this Code.
6. Exclusion of
Warranties and Liability
6.1 The Website Owners do not
warrant the Material, accuracy or veracity of any Material or other information
on the Website, the responsibility for which rests with each of the Subscribers
as specified in Section 2 above.
6.2 Each Subscriber accepts the
Website
"
AS IS
"
with any faults or failings and without any
representation, warranty or guarantee whatsoever, express or implied, including
without limitation any implied warranty of accuracy, completeness, quality,
merchantability, fitness for a particular purpose or non-infringement.
6.3 In no event will the Website
Owners be liable for any injury, loss, claim, damages or any special,
incidental, consequential, exemplary or punitive damages of any kind arising out
of or in connection with any Subscriber's access to, or use of the Website, any
Material thereon or any goods, materials or services available therefrom,
whether based in contract, tort and whether negligent or otherwise, even if any
Website Owner has been advised of the possibility of such damages. In the event
that this exclusion of liability is held by a court of competent jurisdiction
to be unlawful, but that liability may be lawfully limited, the Website Owners'
aggregate total liability to any Subscriber for all such damages and losses
shall be limited to the Website Subscriber fee (if any) paid by the Subscriber
suffering loss during the twelve months preceding the event giving rise to
liability.
7. Copyright &
Privacy Policies
7.1 The Subscriber’s use of the
Website is subject to the Website Owner’s Privacy Policy which is referred to
for its terms and incorporated herein by reference.
7.2 Copyright and any other
applicable intellectual property rights subsisting in any Materials is prima
facie owned by the Subscriber that has submitted that Material to the Website.
Subscribers hereby acknowledge and agree that they shall not, in relation to
any other party’s material commit any of the restricted acts under the
Copyright Designs and Patents Act 1988 as amended and subordinate regulations
(the “1988 Act”) without the express prior written consent of the Subscriber
that submitted the relevant Material, and shall not otherwise infringe the 1988
Act or any other laws protecting intellectual property in the Materials by its
use of the relevant Material.
8. Material Licence
8.1 Grant: The Subscriber hereby
grants to the Website Owner a non-exclusive worldwide, royalty free licence
with the right to sub-licence and the right to make the Material available through
its Website and for such purpose, to use, reproduce, distribute, transmit and
display such Material all in accordance with this Agreement.
8.2 Term: This Agreement shall
commence on the date any Material is posted to the Website by the Subscriber and
shall continue from year to year thereafter until or unless terminated by
either party giving to the other written notice through the Website subject
always to prior termination as hereinafter specified.
8.3 Delivery of Material
(a) The Subscriber shall supply/make available to the Website Owner the
Material in the manner, the Subscriber posts the Material on to the Website.
(b) In the event of any problems with the Material, the Website Owner may
liaise with the Subscriber's contact person whose name, email address and other
contact details are specified in the Second Schedule. Any changes of contact
will be communicated to the Website Owner by email. The Website Owner will use
its best endeavors to ensure that such enquiries are restricted to critical problems
with the material.
(c) The Website Owner shall have the right to request changes to: the
manner in which the Material is provided upon giving to the Subscriber prior
written notice; the format and/or specification of Material supplied, upon
giving to the Subscriber prior written notice; the update frequency of the Material.
(d) The Subscriber may only change the format or specification of the
Material with the consent of the Website Owner and upon giving the Website
Owner prior written notice. For the avoidance of doubt, the updates may include
new information as well as corrections and modifications to existing Material.
(e) The Subscriber will be responsible for its own costs of delivery or
transmission of the Material to the Website Owner and shall bear all costs
associated with any change to the Material, made upon the reasonable request of
the Website Owner in accordance with 9.3 above.
8.4 Use of the Material
(a) The Website Owner shall make the Material available through its Website
on as many relevant websites and webpages as it, in its sole discretion shall
deem appropriate PROVIDED the Website Owner has not been notified that any such
websites or webpages are illegal or harmful as determined in accordance with
Clause 6 below.
(b) The Website Owner may enter into arrangements with other networks to
display the Material on such terms as the Website Owner deems fit.
(c) The Website Owner may reformat or change the Material (including but
not limited to the “look and feel” of the Material ) in any manner as to deems
appropriate.
(d) The Website Owner will use its reasonable endeavours to sell banner
advertising space on the websites and webpages displaying the Material and to
enter into such other revenue generating arrangements to as it deems appropriate.
8.5 Fees and Charges: The Website
Owner shall not pay to the Subscriber any fee for the Material which the
Subscriber acknowledges and agrees with the Website Owner are provided on a
non-exclusive worldwide, royalty free and sub licence able basis.
8.6 Website Owner 's Undertakings
The Website Owner undertakes that,
so far as it is able, it will use all reasonable endeavours:
(a) not to allow the Material to be used in any website or webpages which,
under the laws of the country of the Website Owner or under international
conventions, codes or regulations applicable to the Internet:
(i) is in breach of those laws, codes or regulations including but not
limited to infringement of copyright and other intellectual property rights
(
"
IPR's
"
), defamation, theft, fraud, drug-trafficking,
money-laundering and terrorism;
(ii) may incite violence, sadism, cruelty or racial hatred;
(iii) may facilitate prostitution or paedophilia; is pornographic, obscene,
indecent, abusive, offensive or menacing;
(b) not intentionally to create and/or introduce into the Material any
virus, worm, trojan horse, cancelbot or other destructive or contaminating
program or advise or permit any other party so to do;
8.7 Copyright, Trade Marks, Domain
Names and Other Intellectual Property Rights
(a) Each Subscriber acknowledges and agrees that, prima facie, copyright
and any other intellectual property rights’ subsisting in any Material
submitted by any other Subscriber is owned by the Subscriber submitting same.
(b) The Subscriber acknowledges that any and all copyright, trade marks,
domain names and other intellectual property rights subsisting in or used in
connection with the Website and the Website Owner are and shall remain the
property of the Website Owner and the Subscriber shall not during or after
expiry or termination of this Agreement in any way question or dispute the
ownership thereof by the Website Owner.
(c) The Subscriber shall not during or after the expiry or termination of
this Agreement, without the prior written consent of the Website Owner, use or
adopt any domain name, trade mark, trade name, trading style or commercial
designation that includes or is similar to or may be mistaken for the whole or
any part of any domain name trade mark, trade name, trading style or commercial
designation used by the Website Owner.
8.8 Assignment: The Website Owner
may assign any of the rights and obligations under this Agreement, without the
express written consent of the Subscriber. The Subscriber shall not assign any
of their rights and obligations under this Agreement.
8.9 Termination
(a) Notwithstanding any other provisions herein contained this Agreement
may be terminated forthwith by either party by notice in writing only from the
party not at fault if any of the following events shall occur namely:
(i) if the other party commits any breach of the terms or conditions of
this Agreement and fails to remedy such breach (or in so far as such breach is
not capable of remedy, to furnish adequate compensation therefore) within 30
days after receiving written notice from the party not at fault requiring it to
do so;
(ii) if the other party shall present a petition or have a petition
presented by a creditor for its winding up enters into compulsory or voluntary
liquidation (other than for the purpose of a bona fide reconstruction or
amalgamation), shall have a receiver of all or any of its undertakings or
assets appointed, shall be deemed by virtue of the applicable law to be unable
to pay its debts, or shall cease to carry on business.
(b) In the event of termination by either party for any reason pursuant to
this Clause the Website Owner shall within seven (7) days of the date of
termination purge/expunge the Material from the Website in addition to any and
all back-up or archive copies of the same in/on whatever media (including any
hard copies) and furnish the Subscriber with a certificate signed by a duly
authorized employee of the Website Owner certifying that the same has been
done. In the event that the Website Owner fails to comply with the provisions
of this sub-clause, the Subscriber shall be entitled to access the Website for
the purpose of purging/expunging the Material from the Website and the Website
Owner hereby duly authorizes such access to its Network.
(c) The provisions of clauses 8 and 8.11 will survive termination of this
Agreement.
8.10 Warranty
(a) The Subscriber warrants that it owns any and all copyright, trade
marks, domain names and other intellectual property rights subsisting in or
used in connection with the Material and agrees to indemnify the Website Owner
fully against all loss, or damage suffered as a result of a breach of this
clause by the Subscriber.
(b) The Subscriber warrants that the Material does not nor has it been used
in any website or webpages which, under the laws of the country of the Website
Owner or under international conventions, codes or regulations applicable to
the Internet:
(i) is in breach of those laws, codes or regulations including but not
limited to infringement of copyright and other intellectual property rights
(
"
IPR's
"
), defamation, theft, fraud, drug-trafficking,
money-laundering and terrorism;
(ii) may incite violence, sadism, cruelty or racial hatred;
(iii) may facilitate prostitution or paedophilia; is pornographic, obscene,
indecent, abusive, offensive or menacing.
(c) The Subscriber warrants that neither the Material nor any update
contains or will contain any virus, worm, trojan horse, cancelbot or other
destructive or contaminating program or disabling device.
8.11 Liability and Indemnity
(a) Except to the extent that by statute liability may not lawfully be
excluded in an agreement of this nature and between the respective parties
hereto, the Website Owner shall not be liable in contract or otherwise for any
direct, indirect or consequential loss or damage sustained by the Subscriber by
the Website Owner making use of the Material in accordance with this Agreement.
(b) The Subscriber agrees to indemnify and keep indemnified the Website
Owner from and against any third-party or user claims against the Website Owner
arising from or relating to the Material or the Website Owner 's use thereof.
9. Term and Termination
Each Subscriber agrees to remain
bound by this Code (as amended from time to time) for as long as they remain a
Subscriber of the Website and wishes to use the Website unless the Website
Owner or the Website Moderator earlier terminates, suspends or otherwise limits
access to the Website and/or discussion group in accordance with Section 4
above or as it otherwise deems is appropriate.
10. Force Majeure
Neither party shall be liable to the
other in respect of anything which, apart from this provision, may constitute
breach of this Agreement arising by reason of force majeure, namely
circumstances beyond the control of either party which shall include (but shall
not be limited to) acts of God, perils of the sea or air, fire, flood, drought,
explosion, sabotage, accident, embargo, riot, civil commotion or civil
authority, including acts of local government and parliamentary authority acts
of war (declared or undeclared), terrorism.
11. Waiver
Failure or neglect by the Website
Owner to enforce at any time any of the provisions hereof shall not be
construed nor shall be deemed to be a waiver of the Website Owner's rights
hereunder nor in any way affect the validity of the whole or any part of this
Agreement nor prejudice the Website Owner’s rights to take subsequent action.
12. Headings
The headings of the terms and
conditions herein contained are inserted for convenience of reference only and
are not intended to be part of or to affect the meaning or interpretation of
any of the terms and conditions of this Agreement.
13. Severability
In the event that any of these
terms, conditions or provisions shall be determined by any competent authority
to be invalid, unlawful or unenforceable to any extent, such term, condition or
provision shall to that extent be severed from the remaining terms, conditions
and provisions which shall continue to be valid to the fullest extent permitted
by law.
14. Applicable Law
Each Subscriber agrees that this
Code and any dispute arising in any way in relation to the Website will be
governed by and construed in accordance with the applicable laws of Scotland.
15. General
(a) In the event that any provision in this Code is determined to be
unenforceable or invalid, such provision shall be severed and the remaining
provisions which shall be enforceable to the fullest extent permitted by the
Applicable Law.
(b) This Code represents the entire agreement between Subscriber and the
Website Owner relating to the subject matter hereof, and supersedes any prior
understanding or agreements regarding the Website.