Thank you for your interest in Tell History LTD, (“Tell History”, “we,” or “us”), our Web site at tellhistory.com (the “Site”), and our related web sites and other services provided by us and on which a link to these Terms of Service is displayed (our “Service”). The Service provides an online marketplace for historians, filmmakers, storytellers, and others (the “Vendors”) to offer services relating to a variety of content, including without limitation photographs, pictures, images, moving images, videos, or other media, so that the same may be licensed to third parties, who can request, purchase, and/or download such content (the “Customers”). The Service also allows users (the “Users”) to upload, search, view, share, request, and license content to Tell History.
If you are a Tell History Vendor, be sure to review our Vendor Policy, which forms part of these Terms of Service.
If you are a Tell History Customer, be sure to review our Customer Policy, which forms part of these Terms of Service.
As provided in greater detail in the Terms (and without limiting the express language of the Terms below), you agree and acknowledge that the Terms include the following material terms:
- your use of the Service may be subject to separate third party terms of service and fees, including without limitation your mobile network operator’s (the “Carrier”) terms of service and fees, including fees charged for data usage and overage, which are your sole responsibility;
- the Service is provided “as is” without warranties of any kind and Tell History’s liability to you is limited;
- all disputes between you and Tell History will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please review the “Dispute Resolution and Arbitration” section below for the details regarding your agreement to arbitrate any disputes with Tell History;
- You agree that these Terms don’t create any agency, partnership, joint venture, employment or franchisee relationship between you and Tell History.
- Eligibility. You must be at least thirteen (13) years of age to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least thirteen (13) years of age; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with all applicable laws and regulations. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to these Terms and you agree to be bound by these Terms on behalf of that organization.
- Accounts and Registration. To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your e-mail address or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. You agree that it is not vulgar, obscene, and you are not impersonating anyone. When you register, you may be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password. You agree to accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at email@example.com.
- Ownership; Proprietary Rights. The Service is owned and operated by Tell History. Unless otherwise indicated, all of the content featured or displayed on the Service, including without limitation text, graphics, data, images, moving images, video, visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, and all other elements of the Service (the “Tell History Content”) provided by Tell History is owned by Tell History or its licensors, including its third party content contributors. All elements of the Service, including the Tell History Content, are protected by intellectual property and other laws. Except as expressly authorized by Tell History or otherwise permitted by applicable law, you may not make use of the Tell History Content. Tell History reserves all rights to the Tell History Content not granted expressly in these Terms or in a separate written agreement between you and Tell History. Tell History does not assume ownership to content uploaded by vendors and customers post while using the Services (“Member Content”). This includes anything vendors and buyers post using our Services (such as but not limited to usernames, business names, profile pictures, listing photos, listing descriptions, reviews, comments, videos, etc.). Tell History vendors and customers (“Members”) understand they are solely responsible for Member Content. They represent that they have all necessary rights to Member Content and that they are not infringing or violating any third party’s rights by posting it on Tell History.
- Use of the Service and the Tell History Content. Your rights to use the Service are expressly conditioned on the following:
- You agree and understand that the Service, including the Tell History Content, contains proprietary content, information and material that is protected by applicable intellectual property and other laws, including but not limited to copyright, and that you will not violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right, or otherwise engage in the unauthorized use of any proprietary content, information or materials;
- Unless expressly permitted, you may not alter, modify, create derivative works of, sell, license or in any way exploit any part of the Service, including the Tell History Content, and unless expressly authorized as between you and Tell History or otherwise permitted by applicable law, you agree not to copy, reproduce, distribute, publish, display, perform, transmit, stream or broadcast any part of the Service, including the Tell History Content;
- You agree not to bypass any security or other features of the Service designed to control the manner in which the Service is used, harvest or mine any content from the Service, or otherwise access or use the Service in a manner inconsistent with individual human usage;
- You agree not to use the Service for any illegal purpose or in violation of any local, national, or international law;
- You agree not to perform any fraudulent activity, including impersonating any person or entity, accessing any other Service account without permission, or falsifying your age;
- Except to the extent that the activity is permitted by applicable law, you agree not to decipher, reverse engineer, decompile or disassemble the Service, including the Tell History Content therein, or the software used to provide the Service or the Tell History Content therein, in whole or in part, or authorize, direct, or cause a third party to do so;
- You agree not to use, display, mirror, frame or utilize framing techniques to enclose the Service or the Tell History Content, or any portion thereof, unless and solely to the extent Tell History makes available the means for embedding any part of the Service or the Tell History Content therein;
- You agree not to access, tamper with, or use non-public areas of the Service, Tell History’s (and its hosting company’s) computer systems and infrastructure, or the technical delivery systems of Tell History’s providers;
- You agree not to use the Service in any way that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate, and that Tell History is not in any way responsible for any such use by you;
- You agree that your use of the Service may incur third party fees, such as fees charged by your Carrier for data usage, and may be subject to third party terms, such as your Carrier’s terms of service, and you agree to pay all such fees and abide by all such terms;
- You agree not to interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (a) uploading or otherwise any disseminating virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Service; (c) attempting to collect, personal information about another user or third party without consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service, or violating any regulation, policy, or procedure of any network, equipment, or server;
- You agree not to sell or otherwise transfer the access granted under these Terms or any Tell History Content (as defined in Section 4) or any right or ability to view, access, or use any Tell History Content; or
- You agree not to do any of the acts described in this Section 4, or to assist or permit any person in engaging in any of the acts described in this Section 4 .
- Feedback. While our own staff is continually working to develop and evaluate our own product ideas and features, we pride ourselves on paying close attention to the interests, feedback, comments, and suggestions we receive from the user community. If you choose to contribute by sending Tell History or our employees any ideas for products, services, features, modifications, enhancements, refinements, technologies, content offerings, promotions, strategies, or product/feature names, or any related documentation, artwork, computer code, diagrams, computer code, or other materials (collectively “Feedback”), then regardless of what your accompanying communication may say, the following terms shall apply, so that future misunderstandings can be avoided. Accordingly, by sending Feedback to Tell History, you agree that:
- Tell History has no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason;
- Feedback is provided on a non-confidential basis, and Tell History is not under any obligation to keep any Feedback you send confidential or to refrain from using it in any way; and
- You irrevocably grant Tell History and its successors and assigns perpetual and unlimited permission to use, reproduce, modify, and distribute, display, and perform Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services which incorporate or embody Feedback whether in whole or in part, and whether as provided or as modified.
- Digital Millennium Copyright Act
- DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material or content posted on the Service, you may contact our Designated Agent at the following address: Tell History LTD, Tanglin, Cokes Lane, Chalfont St. Giles, HP8 4TX, United Kingdom. Email: firstname.lastname@example.org
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
(a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
(b) a description of the copyright-protected work or other intellectual property right that you claim has been infringed;
(c) a description of the material that you claim is infringing and where it is located on the Service;
(d) your address, telephone number, and email address;
(e) a statement by you that you have a good faith belief that the use of those materials on the Service is not authorized by the copyright owner, its agent, or the law; and
(f) a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Repeat Infringers. Tell History will promptly terminate without notice the accounts of users that are determined by Tell History to be “repeat infringers.” A repeat infringer is a user who has been notified of infringing activity or has had Contributor Content removed from the Service at least twice.
- Third Party Services and Linked Websites. Tell History may provide tools through the Service that enable you to export information to third party services, including [to third party payment processors] or through features that allow you to link your account on Tell History with an account on the third party service, such as Twitter or Facebook, or through our implementation of third party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that we may transfer that information, to the applicable third party service. Third party services are not under our control, and we are not responsible for any third party service’s use of your exported information. The Service may also contain links to third party websites. Linked websites are not under our control, and we are not responsible for their content.
- Termination of Use; Discontinuation and Modification of the Service. If you violate any provision of these Terms or the terms of any other agreement with us, your permission from us to use the Service will terminate automatically. In addition, Tell History may in its sole discretion terminate your user account on the Service or suspend or terminate your access to the Service at any time, with or without notice. We also reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service) without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service. You may terminate your account at any time by contacting customer service at email@example.com If you terminate your account, you remain obligated to pay all outstanding fees, if any, relating to your use of the Service incurred prior to termination.
- Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service, such as the rules that are applicable to a particular feature or content on the Service, [including but not limited to the Tell History Contributor Agreement and the Tell History Customer License Agreement or such other agreement that may be entered into between Tell History and any Customer from time to time] (the “Additional Terms”), subject to Section 11 below. All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
- Modification of these Terms. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, we will use reasonable efforts to notify you of the change, such as through sending an email to any address you may have used to register an account, through a pop-up window on the Service, or other similar mechanism . Any material modifications to these Terms will be effective upon the earlier of (i) your first use of the Service with actual notice of such change, or (ii) 30 days from posting of such change. Immaterial modifications are effective upon publication. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose. If you do not agree to the modified Terms, your sole and exclusive remedy is to terminate your account and you may no longer use the Service.
- Indemnity. You agree that you will be responsible for your use of the Service, and you agree to defend and indemnify Tell History and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Tell History Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
THE SERVICE, INCLUDING WITHOUT LIMITATION THE TELL HISTORY CONTENT, IS PROVIDED “AS IS” AND THE TELL HISTORY ENTITIES EXCLUDE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. THE TELL HISTORY ENTITIES WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THE SERVICE OR THE TELL HISTORY CONTENT, OR THE UNAVAILABILITY OF THE SAME, INCLUDING, BUT NOT LIMITED TO LOST PROFITS, AND DIRECT, INDIRECT, INCIDENTAL, PUNITIVE AND CONSEQUENTIAL DAMAGES. THE FUNCTIONS EMBODIED ON OR IN THE MATERIALS OF THIS SERVICE ARE NOT WARRANTED TO BE UNINTERRUPTED OR WITHOUT ERROR. YOU, NOT TELL HISTORY, ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION DUE TO YOUR USE OF THIS SERVICE OR THE TELL HISTORY CONTENT. WE MAKE NO WARRANTY THAT THE SITE OR THE TELL HISTORY CONTENT IS FREE FROM INFECTION BY VIRUSES OR ANYTHING ELSE THAT HAS CONTAMINATING OR DESTRUCTIVE PROPERTIES.
Tell History uses reasonable efforts to ensure the accuracy, correctness and reliability of the Tell History Content, but we make no representations or warranties as to the Tell History Content’s accuracy, correctness or reliability.
Tell History may offer a search feature within the Service. Tell History explicitly disclaims any responsibility for the content or availability of information contained in our search index or directory. Tell History also disclaims any responsibility for the completeness or accuracy of any directory or search result.
SOME US STATES AND FOREIGN COUNTRIES DO NOT PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY FOR CERTAIN CATEGORIES OF DAMAGES. THEREFORE, SOME OR ALL OF THE LIMITATIONS ABOVE MAY NOT APPLY TO YOU TO THE EXTENT THEY ARE PROHIBITED OR SUPERSEDED BY LOCAL OR NATIONAL PROVISIONS.
- Limitation of Liability.
IN NO EVENT WILL THE TELL HISTORY ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY TELL HISTORY ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
YOU AGREE THAT THE AGGREGATE LIABILITY OF THE TELL HISTORY ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: GBP100 OR THE AMOUNT SET FORTH IN A SEPARATE WRITTEN AGREEMENT ENTERED INTO BY AND BETWEEN YOU AND TELL HISTORY, IF APPLICABLE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 15 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Governing Law. These Terms are governed by the laws of the United Kingdom with regard to conflict of law principles. If a lawsuit or court proceeding is permitted under these Terms, then, unless another location is expressly specified in these Terms, you and Tell History agree to submit to the personal and exclusive jurisdiction of the England and Wales for the purpose of litigating any dispute. We operate the Service from our offices in California, and we make no representation that the Service is appropriate or available for use in other locations.
- Dispute Resolution and Arbitration.
- Generally. In the interest of resolving disputes between you and Tell History in the most expedient and cost effective manner, you and Tell History agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND Tell History ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
- Exceptions. Despite the provisions of Section 17.1, we both agree that nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either of us to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable national or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
- Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or if we do not have a physical address on file for you, by electronic mail (“Notice”). Tell History’s address for Notice is: Tell History LTD, Tanglin, Cokes Lane, Chalfont St. Giles,HP8 4TX, United Kingdom. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Tell History may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Tell History must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If our dispute is finally resolved through arbitration in your favor, Tell History will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Tell History in settlement of the dispute prior to the arbitrator’s award; or (iii) GBP1,000.
- Modifications. If Tell History makes any future change to this arbitration provision (other than a change to Tell History’s address for Notice), you may reject the change by sending us written notice within 30 days of the change to Tell History’s address for Notice, in which case your account with Tell History will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject will survive.
- Enforceability. If Section 17.4 is found to be unenforceable or if the entirety of this Section 17 is found to be unenforceable, then the entirety of this Section 17 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 15 will govern any action arising out of or related to these Terms.
- Contact Information. The Service is offered by Tell History LTD. located at Tell History LTD, Tanglin, Cokes Lane, Chalfont St. Giles, HP8 4TX, United Kingdom. You may contact us by sending correspondence to that address or by emailing us at firstname.lastname@example.org.
- Obtaining a Copy of These Terms. You may have these Terms mailed to you electronically by sending a letter to the address in Section 20 with your electronic mail address and a request for a copy of these Terms.