1 APPLICATION OF TERMS
1.1 These Terms apply to your use of the services that Spalk Limited of 32 Nikau Street, Eden Terrace, Auckland provides you under the Spalk brand, including all associated domains, subdomains and subdirectories in the Spalk Website (the “Website”) and where our Player (the “Player”) is available on other sites for use (collectively referred to as “Website”). By accessing and using the Website:
- you agree to these Terms; and
- where your access and use is on behalf of another person (e.g. a company), you confirm that you are authorised to, and do in fact, agree to these Terms on that person’s behalf and that, by agreeing to these Terms on that person’s behalf, that person is bound by these Terms.
1.2 If you do not agree to these Terms, you are not authorised to access and use the Website, and you must immediately stop doing so.
2.1 We may change these Terms at any time by updating them on the Website. Unless stated otherwise, any change takes effect immediately. You are responsible for ensuring you are familiar with the latest Terms. By continuing to access and use the Website, you agree to be bound by the changed Terms.
2.2 We may change, suspend, discontinue, or restrict access to, the Website without notice or liability.
2.3 These Terms were last updated on 28th November 2016.
In these Terms:
Commentator means users with an account on Spalk who distribute live streamed and pre-recorded audio and audio-visiual commentaries and other related activities.
Content means audio and/or video content available on the Website or Player
including and similar words do not imply any limit
Loss includes loss of profits, savings, revenue or data, and any other claim, damage, loss, liability and cost, including legal costs on a solicitor and own client basis
Personal information means information about an identifiable, living person
Player means the Spalk embdeeded player accessible or 3rd party websites which provides access to Spalk originated audio and/or video.
Underlying System means any network, system, software, data or material that underlies or is connected to the Website
User Content means any written, audio, video, audiovisual or other content posted by a User on the Website
User ID means a unique name and/or password allocated to you to allow you to access certain parts of the Website
We, us or our means Spalk Limited, a New Zealand Limited Liability Corporation located at 32 Nikau Street, Eden Terrace, Auckland, New Zealand
Website means www.spalk.tv and all associated subdirectories and subdomains.
You means you or, if clause 1.1b applies, both you and the other person on whose behalf you are acting.
4 YOUR OBLIGATIONS
4.1 You must provide true, current and complete information in your dealings with us (including when setting up an account), and must promptly update that information as required so that the information remains true, current and complete.
4.2 If you are given a User ID, you must keep your User ID secure and:
- not permit any other person to use your User ID, including not disclosing or providing it to any other person; and
- b immediately notify us if you become aware of any unauthorised use or disclosure of your User ID, by sending an email to firstname.lastname@example.org
4.3 You must:
- not act in a way, or use or introduce anything (including any virus, worm, Trojan horse, timebomb, keystroke logger, spyware or other similar feature) that in any way compromises, or may compromise, the Website or any Underlying System, or otherwise attempt to damage or interfere with the Website or any Underlying System; and
- unless with our agreement, access the Website via standard web browsers only and not by any other method. Other methods include scraping, deep-linking, harvesting, data mining, use of a robot or spider, automation, or any similar data gathering, extraction or monitoring method.
4.4 You must obtain our written permission to establish a link to our Website. If you wish to do so, email your request to email@example.com
4.5 You indemnify us against all Loss we suffer or incur as a direct or indirect result of your failure to comply with these Terms, including any failure of a person who accesses and uses our Website by using your User ID.
5 USING THE SERVICE
5.1 The performance of the streaming or playing of Content via the Website or the Player depends on your internet connection, the specifications of your device and other functions being performed by your device at the time. We will have no responsibility for poor perofmrance of the Website or Player or any delay or inability to stream or play any Content due to these factors.
5.2 You may not be able to access the Spalk Service if your network configuration prohibits you from streaming video (e.g. if your firewall or filtering mechanisms prevent access to certain websites or file types).
5.3 We decide what Content is available on the Website and the Player and the viewing or listening period that applies to the Content whether the Content is available on a live or delayed basis. Unless we specificy otherwise, not all live Content will necessarily be available on a delayed basis, and vice versa.
5.4 The Website may contain 3rd party information, including advertising, marketing materials, images, editorial commentary and links to third party websites. We do not endorse that advertising and are not resposinsble for any reliance that you place on it.
5.5 In using the Website or the Player, you must not:
- Display or make the Content available in any public place or to the public or any section of the public;
- Distribute, transmit or resupply the Content to any other person;
- Republish or re-transmit Content from the Site or Broadcast Software (including republication on another website);
- Sell, rent, lease or sub-license the Content;
- Copy, edit, modify, reproduce, create derivative works from, alter or adapt the Content or any portion thereof (including without limitation by “burning”, peer-to-peer file sharing, posting, uploading or downloading or in any other way breach copyright in the Content;
- Use the Content for any commercial purposes.
5.6 The Spalk service is not available to persons under the age of 13. If you are between the ages of 13 and 18 (or between 13 and the age of legal majority in your country of residence), you may only use the Spalk service under the supervision of a parent or legal guardian who agrees to be bound by these Terms of Service.
6 INTELLECTUAL PROPERTY
We (and our licensors) own all proprietary and intellectual property rights in the Website (including all information, data, text, graphics, artwork, photographs, logos, icons, sound recordings, videos and look and feel), and the Underlying Systems.
7.1 Spalk respects the intellectual property rights of others and expects its users to do the same. It is Spalk's policy in appropriate circumstances and at its discretion, to disable and/or terminate the accounts of users who repeatedly infringe or are repeatedly charged with infringing the copyrights or other intellectual property rights of others.
7.2 If you believe that User Content has been posted to Spalk which infringes upon your intellectual property rights, please contact Spalk at firstname.lastname@example.org detailing:
- Your Contact Name;
- Your Contact Email;
- Information to help us identify Content (URL, Spalk Channel Name, Date and Time); and
- Supporting evidence or proof of ownership for your claim(s).
We commit to investigating claims and, if we believe your rights have been infringed, providing a summary resolution within 15 business days from the time of email.
7.3 We retain the right to remove content and/or accounts who are infringing upon others intellectual property rights.
8.1 To the extent permitted by law, we and our licensors have no liability or responsibility to you or any other person for any Loss in connection with:
- the Website being unavailable (in whole or in part) or performing slowly;
- any error in, or omission from, any information made available through the Website;
- any exposure to viruses or other forms of interference which may damage your computer system or expose you to fraud when you access or use the Website. To avoid doubt, you are responsible for ensuring the process by which you access and use the Website protects you from this; and
- any site linked from the Website. Any link on the Website to other sites does not imply any endorsement, approval or recommendation of, or responsibility for, those sites or their contents, operations, products or operators.
8.2 We make no representation or warranty that the Website is appropriate or available for use in all countries or that the content satisfies the laws of all countries. You are responsible for ensuring that your access to and use of the Website is not illegal or prohibited, and for your own compliance with applicable local laws.
9.1 License from Spalk: If you sign up for an account on Spalk, subject to your compliance with these Terms of Service, Spalk hereby grants to you a personal, limited, non-exclusive, non- transferable, freely revocable license to use the Spalk Website for the uploading and distributing of authorized digital content including, videos, audio commentary and other user generated content ("User Content").
9.2 License to Spalk: Unless otherwise agreed to in a written agreement between you and Spalk that was signed by an authorized representative of Spalk:
- By distributing or disseminating User Content through the Spalk Website, you hereby grant to Spalk a worldwide, nonexclusive, royalty-free, perpetual, transferable and fully sublicensable right to use, host, convert for streaming, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, display and otherwise exploit your User Content, in any form, format, media or media channels now known or later developed or discovered. You grant Spalk and our sublicensees the right to use the name that you submit in connection with that content, if we or they choose.
- Except for User Content already downloaded by users, the foregoing license granted by you terminates regarding a specific piece of User Content once you remove or delete that User Content from the Spalk Website.
10 USER CONTENT REPRESENTATIONS & WARRANTIES
10.1 You are solely responsible for your User Content and the consequences of posting or publishing it. By uploading and publishing your User Content, you represent, and warrant that: (1) you are the creator and owner of the User Content or otherwise have sufficient rights and authority to grant the rights granted herein; (2) your User Content does not and will not (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right or (b) slander, defame, or libel any other person or (3) your User Content does not contain any viruses, adware, spyware, worms, or other harmful or malicious code. Spalk reserves all rights and remedies against any Commentators who breach these representations and warranties.
11 USER CONTENT IS POSTED AT YOUR OWN RISKS
11.1 Spalk uses reasonable security measures in order to attempt to protect User Content. However, Spalk cannot guarantee that there will be no unauthorized copying or distribution of User Content nor will Spalk be liable for any copying or usage of the User Content not authorized by Spalk. You hereby release and forever waive any claims you may have against Spalk for any such unauthorized copying or usage of the Broadcaster Content, under any theory.
12.1 To the maximum extent permitted by law:
- you access and use the Website at your own risk; and
- we are not liable or responsible to you or any other person for any Loss under or in connection with these Terms, the Website, or your access and use of (or inability to access or use) the Website. This exclusion applies regardless of whether our liability or responsibility arises in contract, tort (including negligence), equity, breach of statutory duty, or otherwise.
- We do not represent of warrant that this website will be error-free, free of any viruses or bugs or compatible with any other software or material.
12.2 Except to the extent permitted by law, nothing in these Terms has the effect of contracting out of the New Zealand Consumer Guarantees Act 1993 or any other consumer protection law that cannot be excluded. To the extent our liability cannot be excluded but can be limited, our liability is limited to NZD100.
12.3 To the maximum extent permitted by law and only to the extent clauses 7.1 and 7.2 of these Terms do not apply, our total liability to you under or in connection with these Terms, or in connection with the Website, or your access and use of (or inability to access or use) the Website, must not exceed NZD100.
14 SUSPENSION AND TERMINATION
14.1 Without prejudice to any other right or remedy available to us, if we consider that you have breached these Terms or we otherwise consider it appropriate, we may immediately, and without notice, suspend or terminate your access to the Website (or any part of it).
14.2 On suspension or termination, you must immediately cease using the Website and must not attempt to gain further access.
15.1 If we need to contact you, we may do so by email or by posting a notice on the Website. You agree that this satisfies all legal requirements in relation to written communications.
15.2 These Terms, and any dispute relating to these Terms or the Website, are governed by and must be interpreted in accordance with the laws of New Zealand. Each party submits to the non-exclusive jurisdiction of the Courts of New Zealand in relation to any dispute connected with these Terms or the Website.
15.3 For us to waive a right under these Terms, the waiver must be in writing.
15.4 Clauses which, by their nature, are intended to survive termination of these Terms, including clauses 4.5, 5, 6, 7, 10.1, continue in force.
15.5 If any part or provision of these Terms is or becomes illegal, unenforceable, or invalid, that part or provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If a modification is not possible, the part or provision must be treated for all purposes as severed from these Terms. The remainder of these Terms will be binding on you.
15.6 These Terms set out everything agreed by the parties relating to your use of the Website and supersede and cancel anything discussed, exchanged or agreed prior to you agreeing to these Terms. The parties have not relied on any representation, warranty or agreement relating to the Website that is not expressly set out in the Terms, and no such representation, warranty or agreement has any effect from the date you agreed to these Terms.