Part A of these terms sets out conditions relating to your use of the Website. Part B sets out the conditions that will apply to the purchase of products (“Products”) in physical or non-physical formats, as the case may be, via the Website.
Boomkat.com is a site operated by Boomkat Limited (“Boomkat”, “we”, “us”), which is a limited company registered in England (company no. 05725006) with registered office at Riverside House Kings Reach Business Park, Yew Street, Stockport, Cheshire SK4 2HD, United Kingdom. Our VAT number is GB 693 0821 25.
Whilst Boomkat undertakes the fulfilment of orders of recordings in physical formats itself for administrative reasons the fulfilment of orders of recordings in digital (i.e. non-physical) formats is undertaken by Boomkat’s sister company Boomkat Digital Limited (“Digital”) which is a limited company registered in England (company no. 05960451) with registered office at Riverside House, Kings Reach Business Park, Yew Street, Stockport, Cheshire SK4 2HD, United Kingdom. Digital’s VAT number is GB 884 6350 90.
For the purposes of these terms Boomkat and Digital are referred to jointly and severally as “the Group”.
CHANGES TO THESE TERMS
PART A – GENERAL WEBSITE TERMS
Changes to the Website
- We may update the Website from time to time, and may change the content at any time. However, please note that any of the content on the Website may be out of date at any given time, and we are under no obligation to update it.
- We do not guarantee that the Website, or any content on it, will be free from errors or omissions.
Accessing The Website
- The Website is made available free of charge.
- We do not guarantee that the Website, or any content on it, will always be available or be uninterrupted.
- Access to the Website is permitted on a temporary basis. We may suspend, withdraw, discontinue or change all or any part of the Website without notice. We will not be liable to you if for any reason the Website is unavailable at any time or for any period.
- You are responsible for making all arrangements necessary for you to have access to the Website.
- When purchasing a product displayed for sale on the Website (a “Product”) you will be given the option to register by providing certain information including a member (user) name, a password and a valid email address ("Registration Data"). If you take up this option you agree to provide accurate Registration Data and to update your Registration Data as necessary to keep it accurate. Our use of that information will be in accordance with our Privacy Notice. You agree that you will not allow others to use your username, password and/or account and you are solely responsible for maintaining the confidentiality and security of your account. You agree to notify us at firstname.lastname@example.org immediately of any unauthorised use of your password and/or account. The Group shall not be responsible for any losses arising out of the unauthorised use of your Registration Data and/or account and you agree to indemnify and hold harmless the Group and its officers, partners, parents, subsidiaries, agents, affiliates and/or licensors, as applicable, for any improper, unauthorised or illegal uses of the same.
Intellectual Property Rights
- BOOMKAT is a registered Community Trade Mark (no. EU010630994) owned by Boomkat.
- The Group is the owner or the licensee of all intellectual property rights in the Website, and in the material published on it. Those works are protected by copyright laws and treaties around the world. All such rights are reserved.
- You may print off one copy, and may download extracts, of any page(s) from the Website for your personal use and you may draw the attention of others within your organisation to content posted on the Website.
- You must not modify the paper or digital copies of any materials you have printed off or downloaded in any way, and you must not use any illustrations, photographs, video or audio sequences or any graphics separately from any accompanying text.
- Our status (and that of any identified contributors) as the authors of content on the Website must always be acknowledged.
- You must not use any part of the content on the Website for commercial purposes without first obtaining our permission.
- Non-physical Products 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.
No Reliance On Information
- The content on the Website is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content on the Website.
- Although we make reasonable efforts to update the information on the Website, we make no representations, warranties or guarantees, whether express or implied, that the content on the Website is accurate, complete or up to date.
Limitation Of Our Liability
- To the extent permitted by law, we exclude all conditions, warranties, representations or other terms which may apply to the Website or any content on it, whether express or implied.
We will not be liable to any user for any loss or damage, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, even if foreseeable, arising under or in connection with:
- use of, or inability to use, the Website; or
- use of or reliance on any content displayed on the Website.
If you are a business user, please note that in particular, we will not be liable for:
- loss of profits, sales, business, or revenue;
- business interruption;
- loss of anticipated savings;
- loss of business opportunity, goodwill or reputation; or
- any indirect or consequential loss or damage.
- If you are a consumer user, please note that we only provide the Website for domestic and private use. You agree not to use the Website for any commercial or business purposes, and the Group will have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.
- The Group will not be liable for any loss or damage caused by a virus, distributed denial-of-service attack, or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of the Website or to your downloading of any content on it, or on any website linked to it.
- The limitations and exclusions that apply to liability arising as a result of the supply of any Products to you are set out in Part B below.
- We do not guarantee that the Website will be secure or free from bugs or viruses.
- You are responsible for configuring your information technology, computer programmes and platform in order to access the Website. You should use your own virus protection software.
- You must not misuse the Website by knowingly introducing viruses, trojans, worms, logic bombs or other material which is malicious or technologically harmful. You must not attempt to gain unauthorised access to the Website, the server on which the Website is stored or any server, computer or database connected to the Website. You must not attack the Website via a denial-of-service attack or a distributed denial-of service attack. By breaching this provision, you would commit a criminal offence under the Computer Misuse Act 1990. We will report any such breach to the relevant law enforcement authorities and we will co-operate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use the Website will cease immediately.
- If you wish to make any use of content on the Website other than that set out above, please contact us at email@example.com.
Third Party Links And Resources In The Website
- The Website may present links to third party websites not owned or operated by the Group. These links are provided for your information only.
- The Group is not responsible for the availability of these sites or their contents. We have no control over the contents of those sites or resources and you agree that the Group shall not be 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.
PART B – CONDITIONS APPLICABLE TO COMMERCIAL TRANSACTIONS
Acceptance Of Terms And Conditions
- By placing an order on the Website you accept the terms and conditions detailed below ("the Conditions").
- The Group reserves 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”).
- Please note that VAT invoices are issued on request.
Placing Orders for Physical Products
- The Website will guide you through the steps you need to take to place an order with us for physical Products. Our order process allows you to check and amend any errors before submitting your order to us. Please take the time to read and check your order at each step of the order process.
- After you successfully place an order you will receive an e-mail from us acknowledging that we have received it. However, please note that this does not mean that your order has been accepted. We will confirm our acceptance to you by sending you an email.
- If we are unable to supply you with the physical Product, for example because it is not in stock or is no longer available or because we cannot meet your requested delivery date or because of an error in the price on the Website we will inform you of this by email and we will not process your order. If you have already paid for the physical Product, we will refund you the full amount including any delivery costs charged as soon as possible.
Pricing & Delivery Charges
- The prices of physical Products will be as quoted on the Website at the time you submit your order. We use our best efforts to ensure that the prices of physical Products are correct at the time when the relevant information was entered onto the system, but please see 11.5 below for what happens if we discover an error in the price of physical Products.
- Prices for our physical Products may change from time to time, but changes will not affect any order you have already placed.
- Where you have requested delivery to an EU address, the price paid for the Product and applicable delivery charges will include either UK VAT or the equivalent tax in the country to which the product is to be delivered. Where you have requested delivery to a Non-EU Country address, the Products and the delivery service will normally be zero-rated i.e. not subject to UK VAT. However the price paid by you for the Products and/or the delivery service will remain the same as shown on the Website. Note that under the EU VAT Distance Selling Regulations, VAT must be charged for deliveries within the EU at the appropriate rate for the country of destination.
- The price of goods does not include delivery charges. Our delivery charges are as advised to you during the check-out process, before you confirm your order. To check relevant delivery charges and options please add items to your crate, choose the shipping destination and delivery service you would like to use and a shipping cost will be displayed.
- The Website contains a large number of goods. It is always possible that, despite our best efforts, some of the goods on the Website may be incorrectly priced. If we discover an error in the price of the Product we will contact you to inform you of this error and we will give you the option of continuing to purchase the Product at the correct price or cancelling your order. We will not process your order until we have your instructions. If we are unable to contact you using the contact details you provided during the order process, we will treat the order as cancelled and notify you in writing. Please note that if the pricing error is obvious and unmistakeable and could have reasonably been recognised by you as a mispricing, we do not have to provide the Product to you at the incorrect (lower) price.
- Products delivered to destinations outside the EU may be subject to taxes, fees, customs duty, levies or other charges as a result of local legislation or customs formalities. The recipient of your order is responsible for all customs formalities for the import of the Products, and will be required to pay any additional charges for international delivery, including import duty, formal customs entry, taxes, levies and other charges that may be levied outside the EU. The recipient of the Products, not the person placing the order, will typically receive a separate request for payment of these charges when the goods arrive in the country of destination. If you are ordering Products to be delivered to someone else, please ensure they are aware that they will be responsible for these additional charges. Please note that in some countries, such as the USA and Canada, the person ordering Products may receive a request for payment of these charges, in which case you will be responsible for paying these additional charges. Payment by you or the recipient (as applicable) must be received by the relevant customs authority before delivery of the Products will be made. Unfortunately we have no control over these charges and cannot predict what they may be, so we are unable to offer any assistance on these processes. We advise that you check any customs formalities and the import charges applicable in any Non-EU Country before ordering Products to be delivered there. We will use commercially reasonable efforts to provide you with information which we hold which relates to the Product or order which you may need in order to arrange customs clearance.
- If an order is placed and restrictions that we were not aware of at the time the order was made are applied by the customs authority of the destination country, then we will cancel the order and return payment to you.
All orders are subject to availability.
Your Right To Cancel The Contract
- When you buy physical Products online, you have cancellation rights detailed below. If you reside within the EU, you are entitled to these rights under the EU Directive on Consumer Rights 83/2011. If you reside in a non-EU country, we offer the same rights to you.
- Subject to 5.3 below you may cancel your contract with us for physical Products you order at any time up to the end of the seventh working day from the date you receive the physical Products concerned. You do not need to give us any reason for cancelling your contract nor will you have to pay any penalty.
- You cannot cancel your contract if the physical Product you have ordered has been taken out of the sealed package in which it was delivered to you.
- To cancel your contract you must notify us in writing.
- If you have received the physical Products before you cancel your contract then unless, under 5.3 above you do not have a right to cancel, you must send the physical Products back to our contact address at your own cost and risk.
- If you cancel your contract but we have already processed the physical Products for delivery you must not unpack the physical Products when they are received by you and you must send the physical Products back to us at our contact address at your own cost and risk as soon as possible.
- On receipt of the returned physical Products in a resalable condition we will refund you the amount charged for the physical Products in question (excluding delivery charges) within 30 days.
Our Right To Cancel The Contract
We reserve the right to cancel the contract between us if:
- we have insufficient stock to deliver the physical Products you have ordered; or
- we do not deliver to your area; or
- one or more of the physical Products you ordered was listed at an incorrect price due to a typographical error or an error in the pricing information received by us from our suppliers.
- If we cancel your contract we will notify you by email and will credit to your account any sum deducted by us from your credit card or PayPal as soon as possible. We will not be obliged to offer any additional compensation for disappointment suffered.
Delivery Of Physical Products To You
- We will deliver the physical Products ordered by you to the address you give us for delivery at the time you make your order.
- Delivery will be made as soon as reasonably possible after your order is accepted.
- You will become the owner of the physical Products you have ordered when they have been delivered to you. Once physical Products have been delivered to you they will be held at your own risk and we will not be liable for their loss or destruction.
Liability for Physical Products
- If the physical Products we deliver are not what you ordered or are damaged or defective or the delivery is of an incorrect quantity, we shall have no liability to you unless you notify us in writing at our contact address of the problem within 10 working days of the delivery of the physical Products in question.
- If you do not receive the physical Products ordered within 15 working days (in the UK), 25 working days (most of the rest of the world) and 60 working days (France, South America and Africa) of the date of our written confirmation of dispatch we shall have no liability to you unless you notify us in writing at our contact address no later than within 2 weeks after such 30 day period expires.
If you notify a problem to us under clauses 8.1 or 8.2 above, our only obligation will be, at your option:
- to make good any shortage or non-delivery;
- to replace or repair any physical Products that are damaged or defective; or
- to refund to you the amount paid by you for the physical Products in question in whatever way we choose.
- Save as precluded by law, we will not be liable to you for any indirect or consequential loss, damage or expenses (including loss of profits, business or goodwill) howsoever arising out of any problem you notify to us under this condition and we shall have no liability to pay any money to you by way of compensation other than to refund to you the amount paid by you for the physical Products in question under clause 8.3(c) above.
- You must observe and comply with all applicable regulations and legislation, including obtaining all necessary customs, import or other permits to purchase physical Products from the Website. The importation or exportation of certain of our goods to you may be prohibited by certain national laws. We make no representation and accept no liability in respect of the export or import of the goods you purchase.
- The Service allows you to listen to Clips (a "Clip" is a portion of a track that you can play directly from and while you are logged on to the Service on a promotional basis at no cost to you) and buy non-physical Product ("Music Content"). You may play as many Clips as you like but you may not attempt (or support others' attempts) to capture, copy, or download a Clip.
- Upon payment for the Music Content, Digital will grant you a non-exclusive, non-transferable right to use the Music Content only for your personal, non-commercial, entertainment use subject to this agreement.
- The Music Content is owned by Digital, its business partners, affiliates and/or licensors, as applicable. You must comply with all applicable copyright and other laws in your use of the Music Content. Except as expressly permitted hereunder you may not or allow others to redistribute, transmit, assign, sell, broadcast, rent, share, lend, modify, adapt, edit, sub-licence or otherwise transfer or use the Music Content. Digital does not grant you any synchronisation, public performance, promotional use, commercial sale, re-sale, reproduction or distribution rights for the Music Content. You agree to advise Digital promptly of any such unauthorised use(s).
- 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 agree that your access to and/or use of any Music Content will be limited by the rules assigned to the Music Content 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 Music Content. 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.
- Technical problems or expiry of Digital's right to make certain Music Content available may at times delay or prevent delivery of purchased Music Content to you. Receipt of your order or request does not guarantee that Digital can supply the selected Products to you. All of the Music Content featured as part of the Service is subject to availability. Your sole remedy with respect to content or purchased Music Content not delivered will be a refund of the price paid for such Music Content.
- All rights not expressly granted in Music Content are reserved to Digital and/or its licensors.
Payment for the Service
- You agree to pay for all Music Content that you purchase through the Service and Digital may charge your debit, credit card or Paypal account 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. 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 payment method you designate when you first make a purchase or incur a charge using the Service. All prices include VAT (where applicable) at the current rates chargeable in the UK for the time being.
- All prices for Music Content 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.
- 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.
- You cannot cancel your purchase of Music Content once delivery has started. By placing an order to purchase Music Content using the Service you acknowledge and agree to this.
Suspension of the Service
- 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.
- 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.
You agree that any unauthorised use of the Service, the Music Content 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.
- You understand and agree that your use of the Service and Music Content is at your own sole risk. The Service and Music Content 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 Service or Music Content 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 Music Content 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 Music Content or other material or that any CD burned using the software to download the Music Content 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 the Group be liable for any unauthorised use of the Service, Music Content 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.
- Digital shall have no liability or responsibility to you for any Music Content that you might find offensive, indecent or objectionable.
If you are under 18 you may only purchase goods or make use of the Service with the involvement of a parent or guardian.
Credit Card Security
The Group places great importance on keeping secure the credit card details you provide and uses security systems which comply with the Payment Card Industry Data Security Standard, a worldwide standard for data protection across the payment industry.
The Group shall have no liability to you for any failure to deliver any items which you have ordered or any delay in doing so or for any damage or defect to goods delivered that is caused by any event or circumstance beyond the Group’s reasonable control including, without limitation, strikes, lock-outs and other industrial disputes, breakdown of systems or network access, flood, fire, explosion or accident.
Limitation Of Liability
In the event that the Group is held to be in breach of the Conditions the extent of the Group’s liability shall be limited to loss that would have been reasonably foreseeable by you and the Group at the time the contract between you and the relevant Group company was formed (as determined in accordance with the foregoing provisions) and in any event the Group’s liability shall be limited to the value of the Products ordered by you and paid for by you in the transaction concerned. Nothing contained in these Conditions shall be deemed however to limit the Group’s liability for death or personal injury arising as a result of negligence on the Group’s part. To the extent that any disclaimer or limitation on damages or liability in these Conditions is prohibited or limited by applicable law, then the Group (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.
Third Party Rights
Except for the Group’s affiliates, directors, employees or representatives, a person who is not a party to this agreement has no right under the United Kingdom Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement but this does not affect any right or remedy of a third party that exists or is available apart from that Act.
Law And Legal Notices
- These Conditions and any other terms or documents referred to herein represent your entire agreement with Boomkat (in respect of your use of the Website and purchase of physical Products) and Digital (in respect of any purchases of Music Content). 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. You agree that the English Courts have jurisdiction over any claim or dispute in respect of your use of the Website or your purchase of Products from the Group.