1 Definitions

In these Terms and Conditions the following terms shall have the following meanings:

“Account”	Shall mean collectively the personal information, Payment Details and credentials provided by User to access Content or Services or for Communication on the Website;
“Communication”	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;
“Company”	Shall mean Eat-A-CD Limited (Registered Number SC306284) having its registered office in Scotland at PO Box 19593, Howwood, PA9 1WX, Scotland ;
“Content”	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;
“Expenses”	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);
“Material”	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;
“Privacy Policy”	Shall mean Company’s privacy policy that is found in the section of the Website entitled “Privacy Policy” and is incorporated into these Terms and Conditions by reference;
“Products”	Shall mean any products that Company advertises and/or makes available for sale through the Website;
“Recording(s)”	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;
“Royalty”	Shall mean Sixty Five per cent (65%) of Net Receipts;
“Services”	Shall mean collectively any online facilities, tools, services or information that Company makes available through the Website either now or in the future;
“Territory”	Shall mean the World;
“User”	Shall mean any party who has an account with the Website;
“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 Receipts.

6 Accounting

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).

7 Warranties

User represents warrants and undertakes that:

7.1 User has the full right and authority to enter into this Agreement;

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 Recording(s);

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 secure;

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 be required;

7.16 User will keep User’s Account details accurate and up-to-date.

8 Indemnity

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 Products altogether.

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 Delivery.

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.

18 Privacy

Use of the Website is also governed by Company’s Privacy Policy which by this reference is incorporated into these Terms and Conditions.

19 Disclaimers

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.

20 Termination

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.

21 Invalidity

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.

22 Waiver

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 remedy.

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.

24 Assignment

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.

26 Communication

User acknowledges that Company reserves the right to monitor any and all communications between User and Company whether using Communication or otherwise.

27 Notices

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 Website.

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.