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TERMS & CONDITIONS
1. COPYRIGHT
All rights including copyright in the content of these web pages ("the Website") are owned and controlled by Boomkat Limited ("Boomkat") save that the dissemination sale and distribution of non-physical copies of recordings via the Website (whether as so called "streams" or "downloads") is undertaken by Boomkat Digital Limited ("Digital"). Neither the Website nor any portion thereof may be reproduced, duplicated, copied, sold, transmitted, adapted or otherwise exploited for any commercial purpose without the express prior written consent of Boomkat. Non-physical copies of recordings may not be reproduced, duplicated, copied, sold, broadcast, downloaded, transmitted, adapted or otherwise exploited for any commercial purpose without the express prior written consent of Digital.
2. ACCEPTANCE OF TERMS AND CONDITIONS
By placing an order on the Website you accept these terms and conditions ("the Conditions"). Each of Boomkat and Digital (as the case may be) reserve the right to make changes to the Conditions relevant to them at any time and you will be subject to the relevant Conditions as published on the Website at the time you place your order. For the avoidance of doubt in respect of Digital the Conditions applicable below constitute a legal contract between you and Digital governing your use of Digital's online music download sales service ("the Service").
PROVISIONS APPLICABLE TO SALES OF PHYSICAL PRODUCT BY BOOMKAT
3. ORDERS & PRICING
It is Boomkat's aim to ensure that pricing of products on the Website is accurate at all times but prices are subject to change and the Website may not reflect the correct price at the moment you place your order. The price you will be charged for goods ordered will be that detailed in the email sent to you by Boomkat confirming that your order has been received.
4. AVAILABILITY
All orders are subject to product availability. It is Boomkat's policy not to charge customers' accounts until the date of despatch of goods ordered and in the event that an item ordered by you is not available your account will not be charged in respect of that item.
5. CONTRACT
An order placed by you on the Website represents an offer to Boomkat to purchase an item. A legally binding contract between you and Boomkat will be formed when you receive an email from Boomkat confirming that your order has been despatched to you. If Boomkat confirms to you that some but not other items that you have ordered have been despatched, the items that have not been despatched will not form part of the contract between you and Boomkat.
6. SHIPPING
All goods ordered will be subject to Boomkat's standard shipping charges on a per item basis.
7. RETURNS
You may cancel your order within seven (7) working days of receipt of the item from Boomkat provided that you have not broken the seal on the packaging of the item if it is a video, DVD, audio recording or computer software. Please note that Boomkat cannot accept returned magazines or goods that are returned in a condition different from that in which they were despatched to you. On receipt of returned goods Boomkat will refund onto your credit card the amount charged (excluding shipping fees) within thirty (30) days. Boomkat will not be able to give a refund if the goods returned are not received and for your protection Boomkat recommends that you return any items via recorded delivery.
8. FAULTY GOODS
If any item of physical product included with your order is faulty Boomkat will replace it or, if the item is no longer available, refund the purchase price provided you notify Boomkat in writing of the nature of the fault and you return the item concerned to Boomkat in suitable packaging enclosing details of your name and order number.
9. DUTIES AND TAXES
If you order from the Website goods for delivery overseas you will be responsible for any import duties and taxes.
PROVISIONS APPLICABLE TO THE SERVICE AS OPERATED BY DIGITAL
10. AGE OF CUSTOMER
You must be at least 18 years of age to register for use of the Service.
11. THE SERVICE
The Service allows you to listen to Clips (as defined below) and buy non-physical digital sound recordings ("Tracks") for permanent ownership (including CD burning and transfer to portable devices) and related digital content. Please note that the Service and the Tracks are solely for personal non-commercial use.
12. USE OF THE SERVICE
(a) SOFTWARE: All software made available by Digital on or through the Service is protected by intellectual property laws and your use of it is governed by these Conditions as well as any applicable end-user licence agreements.
(b) TRACKS: The Tracks are owned by Digital, its business partners, affiliates and/or licensors, as applicable, and are protected by intellectual property laws. You agree that the content rights holders that license their musical or other content to Digital for use in the Service are intended third-party beneficiaries under these Conditions with the right to enforce the provisions that directly concern their content. You understand that your use of the Tracks is subject to the Usage Rules discussed below. You may not authorise, encourage or allow any Tracks used or obtained by you to be reproduced, modified, displayed, performed, transferred, distributed, communicated to the public or otherwise used by anyone else. You agree to advise Digital promptly of any such unauthorised use(s).
(c) USAGE RULES: Your access to and/or use of any Track(s) will be limited by the rules assigned to the Track(s) by Digital ("Usage Rules") and described in this section. You may not attempt (or support others' attempts) to circumvent, reverse engineer, decrypt, or otherwise alter or interfere with any Usage Rules or Tracks. Digital reserves the right to modify the Usage Rules at any time and your continued use of the Service after each such modification shall be deemed acceptance of any such modification.
You may burn each Purchased Track to a CD up to five (5) times as part of any particular playlist of songs. A "playlist" is a discrete group of Purchased Tracks that are arranged together in a particular order. Once you have burned a Purchased Track to a CD, you agree not to copy, distribute, or transfer the track from that CD to any other media or device.
You may transfer a Purchased Track to up to three (3) portable devices that are compatible with the Service's Usage Rules and security requirements. Once you have transferred a Purchased Track to a compatible portable device, you agree not to copy, distribute, or transfer it from that device to any other media or device.
The burning or transfer permissions provided for herein shall not operate to waive or limit any rights of the copyright owners in Tracks or any works embodied in them.
A "Clip" is a portion of a Track or promotional music video that you can play (and, if applicable, view) directly from and while you are logged on to the Service on a promotional basis at no cost to you. You may play as many Clips as you like. You may not attempt (or support others' attempts) to capture, copy, or download a Clip.
A "Purchased Track" is a Track that you can keep permanently and may (1) save to the hard drives of up to three (3) of your personal computers and play back at any time, (2) burn to a CD and/or (3) transfer to a compatible portable device. Any security technology that is provided with a Purchased Track is an inseparable part of it. If you have Purchased Tracks, it is your responsibility not to lose, destroy or damage them. Digital shall have no liability to you in the event of any such loss, destruction, or damage.
(d) PRODUCT AVAILABILITY: Technical problems or expiry of Digital's right to make certain Tracks available may at times delay or prevent delivery of Purchased Tracks to you. Receipt of your order or request does not guarantee that Digital can supply the selected products to you. All of the Tracks featured as part of the Service are subject to availability. Your sole remedy with respect to content or Purchased Tracks not delivered will be a refund of the price paid for such content or Purchased Tracks.
(e) RESTRICTIONS: You may not use the Service to transmit, display, perform or otherwise make available any messages, content or materials (i) that are illegal, obscene, pornographic, inflammatory, threatening, of a "spamming" nature, defamatory, or invasive of privacy; (ii) that constitute political campaigning or commercial solicitation or that contain software viruses or other computer code designed to interfere with the functionality of any computer systems; or (iii) that infringe third party rights or harm minors in any way. Digital will fully co-operate with any appropriate authority or Court order requesting or directing Digital to disclose the identity of anyone posting any such information or materials. You may not interfere with or disrupt the Service or any networks connected to or by the Service. In addition, you may not use a false email address or otherwise mislead Digital or other members as to your identity or to the origin of a message or content. By posting messages, inputting data, or engaging in any other form of communication through the Service, you agree that Digital may copy, sublicense, adapt, transmit, publicly perform or display any such content to provide and/or promote the Service subject always to applicable legal restrictions, and/or to respond to any legal requirement, claim or threat. If Digital's use of such content exploits any proprietary rights you may have in such material, you agree that Digital has an unrestricted, royalty-free, non-exclusive and perpetual worldwide right to use such material as described above. You agree that any loss or damage of any kind that you incur as a result of the use of any messages, content or material that you upload, post, transmit, display or otherwise make available through your use of the Service is solely your responsibility.
(f) All rights not expressly granted are reserved to Digital and/or its licensors.
13. CHARGES / BILLING
(a) Agreement to Pay. You agree to pay for all Tracks that you purchase through the Service and Digital may charge your credit card for any such payment(s). Digital may, in its discretion, post charges to your credit card individually or may aggregate your charges with other purchases you make on the Service. Your credit card will only be charged after we have verified your card details, received credit authorisation and confirmed product availability. You are responsible for keeping your Digital account secure and confidential and you will be responsible for any charges that are incurred by any person through your account. All charges will be billed to the credit card you designate when you first make a purchase or incur a charge. All prices include VAT (where applicable) at the current rates but exclude any delivery charges for goods, which are stated when you place your order (as these may vary depending on delivery option and location).
(b) Right to Change Prices. All prices for products within the Service are subject to change by Digital at any time. While Digital tries to ensure that all prices on the Website are accurate, errors may occur. If Digital discovers an error in the price of any goods or services you have ordered it will give you the option of reconfirming your order at the correct price or cancelling it. If Digital is unable to contact you it will treat the order as cancelled.
(c) Electronic Contracts. You agree that any submissions you make for electronic purchases constitute your intent and agreement to be bound by the terms of and to pay for such purchases. To the extent that such electronic purchases are offered to you by a third party, you acknowledge that Digital shall not be responsible or liable to you for the products or services purchased.
(d) Cancellation. You have the right to cancel certain purchases made online with Digital, namely purchases of physical goods, such as shirts.
14. EXPLICIT CONTENT
Certain albums may be subject to the Recording Industry Association of America ("RIAA") "Parental Advisory Label" (as defined at www.riaa.com/issues/parents/advisory.asp) or to the British Phonographic Industry ("BPI") "Voluntary Stickering Scheme" for labeling recordings that contain explicit or offensive lyrics or other content. The RIAA assigns the Parental Advisory Label to an entire album and not the individual songs on the album. BPI recommends that its member companies apply a warning sticker to any recordings which they release or distribute which contain explicit lyrics or other content which may offend. This is a subjective decision that should be made by a senior executive of the company. All Tracks from such labelled albums (whether by RIAA or BPI) will be labelled as "explicit" within the Service ("Stickered Tracks"). If any of your searches on the Service return Stickered Tracks, they will be identified as such in the search results area. Note that Tracks that were recorded prior to 1985 are not subject to the RIAA Parental Advisory Label. Also, the BPI Voluntary Stickering Scheme may not apply to all content released in the United Kingdom since it is a voluntary process. Digital shall have no liability or responsibility to you for any content or materials, including Stickered Tracks, that may be available in connection with the Service that you might find objectionable.
15. INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS
If Digital receives a notice alleging that you have engaged in behaviour that infringes Digital's or any other party's intellectual property rights or reasonably suspects the same, Digital may suspend or terminate your account without notice to you. If Digital suspends or terminates your account under this paragraph, it shall have no liability or responsibility to you, including for any amounts that you have previously paid.
16. PROMOTIONS AND ADVERTISING
Digital and/or its business partners may present advertisements or promotional materials on or through the Service. Your participation in any promotional event is subject to the terms and conditions associated with that event. Your dealings with, or participation in promotions by, any third party advertisers on or through the Service are solely between you and such third party. You agree that Digital shall not be responsible or liable for any loss or damage of any kind incurred by you as the result of any such dealings or as the result of the presence of such third parties on the Service.
17. MODIFICATIONS TO THE SERVICE
Digital reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice to you, without any liability to you or to any third party.
18. REMEDIES
You agree that any unauthorised use of the Service, the Tracks or any related software or materials may result in irreparable injury to Digital and/or its affiliates or licensors for which money damages would be inadequate, and in such event Digital, its affiliates and/or licensors, as applicable, shall have the right, in addition to other remedies available at law and in equity, to seek immediate injunctive relief against you. Nothing contained in these Conditions shall be construed to limit the remedies available pursuant to statutory or other legal authority that Digital, its affiliates and/or licensors may have.
19. DISCLAIMERS
You understand and agree that your use of the Service and Tracks is at your own sole risk. The Service and Tracks (the "Products") are provided "as is" and without warranty by Digital or its agents, employees, parents, subsidiaries, affiliates, licensors, business partners and/or suppliers (the "Digital Entities"), as applicable, and, to the maximum extent allowed by applicable law, the Digital Entities expressly disclaim all warranties, express or implied including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and any warranty of non-infringement. The Digital Entities do not warrant, guarantee, or make any representations regarding the use or the results of the use of the Products with respect to performance, accuracy, reliability, security capability or otherwise. You will not hold any Digital Entity responsible for any damages that result from you accessing the Service or using the Products including, but not limited to, damage to any computer, software or systems or portable devices you use to access the same. No oral or written information or advice given by any person shall create a warranty in any way whatsoever relating to any of the Digital Entities.
Digital makes no warranty that any particular CD burner or portable device will be compatible with the software used to download Purchased Tracks or other material or that any CD burned using the software to download the Purchased Tracks or other material will function in all CD players. It is your sole responsibility to ensure that your system(s) will function correctly.
Under no circumstances shall any Digital Entity be liable for any unauthorised use of the Service, Tracks or any other materials.
Under no circumstances shall any Digital Entity be liable to you for any consequential, incidental or special damages (including damages for loss of business profits, business interruption, loss of business information, and the like) arising out of the use of or inability to use the Products, even if the Digital Entity has been advised of the possibility of such damages.
GENERAL PROVISONS APPLICABLE TO BOTH BOOMKAT & DIGITAL
20. USE OF WEBSITE
You may use the Website for lawful purposes only and you agree not to use the Website in any way which may cause the Website or access to it to be interrupted or impaired in any manner.
21. REGISTRATION
In order to purchase goods from Boomkat or use the Service provided by Digital you must first register and provide certain information including a member (user) name, a password and a valid email address ("Registration Data"). You agree to provide accurate Registration Data and to update your Registration Data as necessary to keep it accurate. Boomkat and Digital will keep and use your Registration Data in accordance with their privacy policy which forms part of these Conditions. You agree that you will not allow others to use your member name, password and/or account and you are solely responsible for maintaining the confidentiality and security of your account. You agree to notify Boomkat and Digital immediately of any unauthorised use of your password and/or account. Neither Boomkat nor Digital shall be responsible for any losses arising out of the unauthorised use of your member name, password and/or account and you agree to indemnify and hold harmless Boomkat, Digital, their officers, partners, parents, subsidiaries, agents, affiliates and/or licensors, as applicable, for any improper, unauthorised or illegal uses of the same.
22. CREDIT CARD SECURITY
Boomkat and Digital both place great importance on keeping secure the credit card details you provide and to that end Boomkat and Digital use security systems which comply with the Payment Card Industry Data Security Standard, a worldwide standard for data protection across the payment industry.
23. LINKS TO THIRD PARTY SITES
The Website may present links to third party websites not owned or operated by Boomkat or Digital. Neither Boomkat nor Digital is responsible for the availability of these sites or their contents. You agree that neither Boomkat nor Digital is responsible nor liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with your use of or reliance on any content of any such site or goods or services available through any such site.
24. PATENTS AND TRADEMARKS
All trade marks, service marks, trade names, slogans, logos, and other indicia of origin that appear on or in connection with Website are the property of Boomkat and/or its affiliates, licensors and/or licensees (with the exception of those relating to the Service which are the property of Digital). You may not copy, display or use any of these marks without prior written permission of the mark owner. The Service may be protected under patent law and may be the subject of issued patents and/or pending patent applications.
25. FORCE MAJEURE
Notwithstanding clause 10 above in the event that, due to circumstances outside Boomkat's control, you do not receive the whole or part of order or any of the items ordered by you are defective or there is a delay in your order reaching you, Boomkat shall not be liable to you.
26. LIMITATION OF LIABILITY
In the event that either Boomkat or Digital is held to be in breach of the Conditions the extent of any such liability shall be limited to loss that would have been reasonably foreseeable by you and Boomkat or Digital (as the case may be) at the time the contract between you and Boomkat and/or Digital (as the case may be) was formed (as determined in accordance with the foregoing provisions) and in any event any liability of Boomkat or Digital (as the case may be) shall be limited to the value of the goods ordered by you in the relevant transaction. Nothing contained in the Conditions shall be deemed however to limit Boomkat's or Digital's (as the case may be) liability for death or personal injury arising as a result of negligence on the part of Boomkat or Digital (as the case may be). To the extent that any disclaimer or limitation on damages or liability in these Conditions is prohibited or limited by applicable law, then Boomkat and Digital (and if applicable the Digital Entities) shall be entitled to the maximum disclaimers and/or limitations on damages and liability available at law or in equity and in no event shall such damages or liability exceed £100.00.
27. LAW AND LEGAL NOTICES
These Conditions and any other terms or documents referred to herein represent your entire agreement with Boomkat and Digital with respect to your use of the services offered by them respectively. If any part of the Conditions is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as closely as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. The laws of England and Wales govern the Conditions and your use of the Service and the Tracks. You agree that the English Courts have jurisdiction over any claim or dispute whether with Boomkat or with Digital or relating in any way to your account or your use of the Service or the Tracks.
