In these Terms and Conditions the following terms shall have the following meanings:
- Shall mean collectively the personal information, Payment Details and credentials provided by User to access Content or Services or for Communication on the Website;
- Shall mean any means of online communication that Company makes available through the Website either now or in the future including without limitation webbased email, message boards, live chat facilities and email links;
- Shall mean Eat-A-CD Limited (Registered Number SC306284) having its registered office in Scotland at PO Box 19593, Howwood, PA9 1WX, Scotland;
- Shall mean any text, graphics, images, audio, video, software, data compilations and any other form of information capable of being stored in a computer that appears on or forms part of the Website including without limitation biographies, photographs, video, the Recording(s) and all other content that is uploaded by User to the Website;
- Shall mean all expenses actually incurred by Company acting reasonably and in good faith that are directly and identifiably attributable to the exploitation of the rights licensed hereunder and payable to any third party operating at arms length from Company (including without limitation mechanical royalties but for the avoidance of doubt excluding Company’s own overheads);
- Shall mean the musical works and/or literary works which are performed or narrated on the Recording(s);
- “Net Receipts”
- Shall mean all income that is directly and identifiably attributable to the sale of downloads of the Recording(s) that is actually received by Company after deduction by Company of the Expenses;
- “Payment Details”
- Shall mean any details required for the purchase of Products from the Website including without limitation credit and debit card numbers, bank account numbers and sort codes;
- Shall mean any products that Company advertises and/or makes available for sale through the Website;
- Shall mean the sound recording(s) that are uploaded by User to the Website in accordance with clause 4;
- “Rights Period”
- Shall mean the period commencing on the date hereof and continuing for a period of twelve (12) calendar months and continuing thereafter until terminated by either Company or User giving not less than sixty (60) days written notice of termination to the other;
- Shall mean Sixty Five per cent (65%) of Net Receipts;
- Shall mean collectively any online facilities, tools, services or information that Company makes available through the Website either now or in the future;
- Shall mean the World;
- Shall mean any party who has an account with the Website;
- Shall mean the website at www.eatacd.com and any sub-domains of same.
2 Acceptance of Terms and Conditions
The Website is owned and operated by Company. By visiting the
Website or by using any of the Content or Services that is available
through the Website each User of the Website signifies his/her agreement
to these Terms and Conditions and to the Payment Policy. A User should
not use the Website if such User does not understand and accept the
Terms and Conditions or the Payment Policy in their entirety.
3 User’s Account
3.1 User shall be required to create an Account prior in order to
purchase Products and to uploading Content.
3.2 Company accepts no liability for any losses or damages
incurred as a result of Account details being shared by User.
3.3 If User has reason to believe that User’s Account details
have been obtained by a third party without User’s consent, User shall
contact Company immediately to suspend User’s Account and to cancel any
unauthorised purchases that may be pending. Purchases may only be
cancelled prior to being dispatched. Company shall accept no liability
or responsibility for an unauthorised purchase that is dispatched prior
to User notifying Company of such unauthorised purchase.
3.4 When choosing a username User shall adhere to the terms set
out above in clause 7. Any failure to do so could result in the
suspension and/or deletion of User’s Account.
4 Submission of Content
4.1 User may upload Content to the Website by completing the Submission Form on the Website and
submitting the same to Company via the Website and by simultaneously
uploading the Content to the Website. Subject to User conforming with
the terms of this Agreement Company shall make such Content available on
the Website for visitors to the Website.
4.2 By complying with sub-clause 4.1 User hereby licenses the
following rights to Company throughout the Territory and for the
duration of the Rights Period:
4.2.1 the non-exclusive right to store digital files of the
Content that has been uploaded by User and (subject to sub-clause 4.5 of
these Terms and Conditions) the Material and to make the same available
to third parties on the Website to view to stream and to download (as
applicable) via the internet; and
4.2.2 the non-exclusive right to use on the Website the name, the
trademark, the logo, the approved likeness and the approved biographical
information of the performers and recordingartists who are featured in
Content that is uploaded by User; and
4.2.3 the right to sub-license to third parties the rights
referred to in sub-clauses 4.3.1 and 4.3.2.
4.3 All rights in Content that is uploaded by User that are not
hereby licensed to Company are hereby reserved by User.
4.4 To the extent that Material is owned or controlled by a third
party and/or is registered with a collection society Company shall be
responsible for securing all necessary licences in respect of such
Material and for the payment of royalties in respect of same.
5 Payments to User
Subject to providing Company with details of User’s PayPal
account User shall be entitled to receive the Royalty in respect of Net
Within thirty (30) days following the end of each three (3) month
period ending 31 March 30 June 30 September and 31 December in each
calendar year Company shall send User a statement setting forth accurate
and up to date details of all monies actually received by Company during
the preceding three (3) month accounting period from exploitation of
Content that is uploaded by User and the basis for calculation of Net
Receipts arising from same (including without limitation itemisation of
Expenses) and the User’s share of such Net Receipts in accordance with
clause 5 of this Agreement which share of such Net Receipts Company
shall remit to User once the amount of monies payable to User exceeds
ten pounds sterling (£10.00) or such other sum which Company may elect
from time to time (acting reasonably and in good faith).
User represents warrants and undertakes that:
7.1 User has the full right and authority to enter into this
7.2 User owns or exclusively controls throughout the Territory
the copyright and all other rights in the Content that is uploaded by
User and User will during the Rights Period and throughout the Territory
remain entitled to license the rights hereby licensed to Company;
7.3 User has obtained all necessary consents of the performers
and recording artists whose performances are embodied in the
7.4 Company’s exploitation of the rights licensed hereunder shall
not infringe upon or violate the rights of any third party;
7.5 the information supplied by User to Company shall be complete
and accurate in every respect;
7.6 Company and its licensees shall not be required to make
payments of any sort in respect of the exploitation of the rights
hereunder other than payment of the Royalty (including without
limitation any payments to recording artists record producers trade
unions Phonographic Performance Limited or any other industry
associations) and royalties payable in accordance with sub-clause 4.5;
7.7 User shall keep User’s username and password confidential and
7.8 User shall be responsible for any taxes payable in respect of
monies remitted to User under this Agreement;
7.9 the Content that is uploaded by User shall not be offensive
or defamatory illegal or unlawful
7.10 User shall not use the Website to advertise other businesses
without Company’s prior express written permission;
7.11 User shall communicate using the English language;
7.12 User shall not use Communication for unauthorised
mass-communication such as “spam” or “junk mail”;
7.13 User shall not use the Website for unauthorised
mass-communication such as “spam” or “junk mail”.
7.14 all information that User submits is accurate and truthful;
7.15 User has consent to submit Payment Details where consent may
7.16 User will keep User’s Account details accurate and
User shall indemnify and hold Company harmless from any and all
claims, liabilities, costs, losses, damages or expenses, including
reasonable outside solicitors fees, incurred by Company and arising from
a breach or alleged breach by User of the warranties representations or
undertakings by User contained in this Agreement.
9 Offer and Acceptance
No part of the Website is intended to constitute a contractual
offer capable of acceptance. User’s order constitutes a contractual
offer and Company’s acceptance of that offer is deemed to occur only
upon Company sending to such User an email indicating that such order
has been fulfilled and is on its way to the User.
10 Age Restrictions
Persons under the age of 18 may only use the Website with the
supervision of an adult. Payment Details shall be provided by or with
the consent of an adult.
11 Business Customers
These Terms and Conditions do not apply to User buying Products
in the course of business.
12 Intellectual Property
All Intellectual Property rights in all Content excluding Content
that is uploaded by User but including but not limited to text,
graphics, logos, icons, images, sound clips, video clips, data
compilations, page layout, underlying code, software trademarks, trade
names, patents, registered designs and any other automatic intellectual
property rights derived from the aesthetics or functionality of the
Website is and shall remain the property of Company, Company’s
affiliates or other relevant third parties. User acknowledge that the
Content is protected by the applicable United Kingdom and International
laws. User may only reproduce, copy, distribute, store or in any other
fashion re-use Content from the Website to the extent that User is given
express written consent to do so by Company either on the Website or
directly in writing or as permitted or required to do so by law.
13 Links to and from the Website
The inclusion of a link to another website on the Website that is
not under the control of Company or Company’s affiliates does not imply
any endorsement of that website or the third party in control of it.
Company assumes no responsibility for the content of any such website
and will accept no liability for any and all forms of loss or damage
arising out of the use of any such website. User may place a link to the
home page of the Website on other websites without Company’s prior
consent. User may only place a link to specific pages within the Website
with Company’s prior written consent.
14 Termination of Accounts and Cancellation of Purchases
An Account may be terminated by Company or the relevant User. If
Company terminates an Account the relevant User will be notified by
email and will usually be given an explanation for the termination of
such Account. Notwithstanding the foregoing Company reserves the right
to terminate an Account without giving reasons.
15 Description of Products
15.1 Whilst every effort has been made to ensure that all
graphical representations and descriptions of Products available from
Company correspond to the actual Products, Company is not responsible
for any variations from these descriptions. This does not exclude
Company’s liability for mistakes due to negligence on Company’s part and
refers only to variations of the correct Products, not different
15.2 If User receives a Product that does not match that ordered
User will be given the option to have the Product replaced with that
ordered (if available) or to be refunded through the payment method used
by User when purchasing the Products subject to User requesting same
from Company in writing within forty eight (48) hours of original
16 Pricing of Products
All pricing information on the Website is correct at the time of
going online. Company reserves the right to change prices and to alter
or remove any special offers from time to time as necessary. In the
event that prices are changed during the period between an order being
placed for Products and Company processing that order and taking payment
User will be contacted prior to User’s order being processed with
details of the new price. All prices on the Website will include sales
tax (e.g. VAT) where applicable.
17 Delivery of Products
Each Product that is purchased by a User will be delivered to
User by means of User downloading the Product from the Website.
reference is incorporated into these Terms and Conditions.
19.1 Company makes no warranty or representation that the Website
will meet User’s requirements, that it will be of satisfactory quality,
that it will be fit for a particular purpose, that it will not infringe
the rights of third parties, that it will be compatible with all
systems, that it will be secure and that all information provided will
be accurate. Company’s make no guarantee of any specific results from
the use of the Products or Services.
19.2 No part of the Website is intended to constitute advice and
the Content of the Website should not be relied upon when making any
decisions or taking any action of any kind.
19.3 To the maximum extent permitted by the law Company gives no
warranty (express or implied) of the accuracy of information provided or
that the Services will be free of defects and/or faults or of the
compatibility, quality or fitness of Products for a particular purpose.
19.4 Company accepts no liability for any disruption or
non-availability of the Website resulting from external causes including
but not limited to ISP equipment failure, host equipment failure,
communications network failure, power failure, natural events, acts of
war or legal restrictions and censorship.
19.5 To the maximum extent permitted by law, Company accepts no
liability for any direct or indirect loss or damage, foreseeable or
otherwise, including any indirect, consequential, special or exemplary
damages arising from the use of the Website or any information contained
therein. User uses the Website the Products the Services and the Content
at User’s own risk.
19.6 Nothing in these Terms and Conditions excludes or restricts
Company’s liability for death or personal injury resulting from any
negligence or fraud on the part of Company.
19.7 Company will under no circumstance be liable for indirect,
special, or consequential damages including any loss of business,
revenue, profits, or data in relation to User’s use of the Website.
Without prejudice to any rights or remedies that either party may
have at law or otherwise under this Agreement, either party shall be
entitled to terminate the Rights Period in the event that:
20.1 the other party fails to perform its Content obligations
hereunder and such failure is not cured within sixty (60) days after
written notice thereof being given to such party; or
20.2 the other party enters into compulsory liquidation or makes
any compromise for the benefit of its creditors or the other party
becomes the subject of insolvency or bankruptcy proceedings.
20.3 Company shall be entitled to close User’s account and to
remove all Content that has been uploaded by User in the event that
there are no sales of the Recording(s) or if in the opinion of Company
has been little or no interest in the Recording(s) over a three (3)
month period. Company will notify User by email prior to closure of
User’s account and removal of the Content that has been uploaded by User
due to inactivity.
Whilst every effort has been made to ensure that these Terms and
Conditions adhere strictly with the relevant provisions of the Unfair
Contract Terms Act 1977, in the event that any of these terms is found
to be unlawful, invalid or otherwise unenforceable, that term shall be
deemed to have been deleted from these Terms and Conditions and shall
not affect the validity and enforceability of theremaining Terms and
Conditions. This term shall apply only to the jurisdiction within which
such term is illegal.
In the event that any party to these Terms and Conditions shall
fail to exercise any right or remedy contained in these Terms and
Conditions this shall not be construed as a waiver of that right or
23 Prior Terms and Conditions
In the event of any conflict between these Terms and Conditions
and any prior versions of same the provisions of these Terms and
Conditions shall prevail unless it is expressly stated otherwise.
Company shall be entitled but not obliged to assign the whole or
a part of this Agreement to any third party. User shall not be entitled
to assign the whole or a part of this Agreement to any third party.
25 Changes to the Services and to these Terms and Conditions
Company reserves the right to change the Website, its Content or
these Terms and Conditions at any time. User will be bound by any
changes to the Terms and Conditions from the first time User uses the
Website following the changes. If Company is required to by law make any
changes to the Terms and Conditions such changes will apply
automatically to any orders placed by User in the future and to those
orders currently pending at the relevant time.
User acknowledges that Company reserves the right to monitor any
and all communications between User and Company whether using
Communication or otherwise.
All notices to either party shall be made in writing by email.
Company shall use the email address supplied by User and User shall use
the Contact section of the
28 Applicable Law and Jurisdiction
These Terms and Conditions and the relationship between User and
Company shall be governed by and construed in accordance with the Laws
of Scotland and Company and User agree to submit to the exclusive
jurisdiction of the Courts of Scotland.