ONLINE BUSINESS AND CONSUMER DIGITAL CONTENT

TERMS & CONDITIONS

OUR TERMS

1          These terms

1.1       What these terms cover. These are the terms (on which we will supply digital content to you.

1.2       Why you should read them. Please read these terms carefully before you submit your order to us. These terms tell you who we are, how we will supply the digital content to you, how you and us may change or end the contract between you and us, what to do if there is a problem, and other important information. If you think that there is a mistake in these terms, then please contact us to discuss.

1.3       Are you a business customer or a consumer? In some areas you will have different rights under these terms depending on whether you are a business or a consumer. You are a consumer if you are an individual and you are buying digital content from us wholly or mainly for your personal use (and not for use in connection with your trade, business, craft or profession).

1.4       If you are a business customer this is our entire agreement with you. If you are a business customer these terms constitute the entire agreement between you and us in relation to your purchase. You acknowledge that you have not relied on any statement, promise, representation, assurance or warranty made or given by us or on our behalf which is not set out in these terms, and that you will have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these terms.

2          Information about us and how to contact us

2.1       Who we are. We are LOUISE BYRNE MUSIC, a sole trader whose business address is Louise Byrne Music, Studio 18839, PO Box 6945, London W1A 6US, England. We are not registered for VAT.

2.2       How to contact us. You can contact us by emailing us at studio@louisebyrnemusic.com or by writing to us at Louise Byrne Music, Studio 18839, PO Box 6945, London W1A 6US, England or by telephoning us on ++44(0) 7758 596 089.

2.3       How we may contact you. If we have to contact you we will do so by emailing you at the email address you gave us in your order.

2.4       ‘Writing’ includes emails. When we use the words ‘writing’ or ‘written’ in these terms, this includes emails.

3          Our contract with you

3.1       How we will accept your order. Our acceptance of your order will take place when we email you to accept it, and at which point a contract will come into existence between you and us.

3.2       If we cannot accept your order. If we are unable to accept your order, we will inform you of this and will not charge you. This might be because of unexpected limits on our resources which we could not reasonably plan for, or because we are unable to meet a delivery deadline you have specified.

3.3       Your order number. We will assign an order number and tell you what it is when we accept your order. It will help us if you can tell us the order number whenever you contact us about your order.

4          Our grant to you of a LICENCE to use the digital content

4.1       What is digital content? In these terms ‘digital content’ means the audio material and any other digital content which we are to supply under our contract with you.

4.2       Who owns the digital content? You acknowledge and agree that as between you and us we are the owner of all the copyright and other intellectual property rights in the digital content which now or at any time in the future will subsist in any part of the world.

4.3       The licence we are granting to you. We will grant to you a non-transferable and non-exclusive licence to use the digital content. For the avoidance of doubt, the granting of this licence does not affect our ownership of the copyright and other intellectual property rights in the digital content.

4.4       You cannot assign or sub-licence the licence. Although the licence granted will permit you to use the digital content yourself, you must not at any time assign this licence (or any part of it) or grant any sub-licence of any of the digital content to any third party. You are not permitted to re-sell all or any of the digital content, but you may incorporate the digital content into a product provided that the digital content is incidental to and not distinguishable from that product. For the avoidance of doubt, as owners of the digital content we may ourselves at any time and in any way use or otherwise commercially exploit any of the digital content, including by means of licensing it to third parties.

4.5       No changes etc to the digital content. You must not in any way change, amend or develop any of the digital content, or sample or use any of the digital content in any music production software. For the purpose of this clause, ‘sampling’ means the act of taking a portion, or sample, of one sound recording and reusing it as an instrument or a sound recording in a different song or piece.

4.6       What happens if digital content is changed? Without affecting your obligations under clause 4.5, if any of the digital content is changed, amended or developed, all copyright and other intellectual property rights in the changed, amended or developed digital content will belong to us. You must do all such acts and things as we may at any time reasonably require to ensure that we remain or become (as the case may be) the owner of these rights, including executing a deed of assignment. All such rights assigned to us under this clause shall form part of the digital content, and of the licence granted, from the date of that assignment.

4.7       Limits on your use of the digital content. You must ensure that any use of the digital content (or any part of it) will not in any way infringe any copyright or other intellectual property rights belonging to any third party, be unlawful, obscene or morally offensive in any country or in any jurisdiction, or prejudice or harm us or our business (or any part of it).

4.8       Your obligations if there is an infringement of copyright etc. If at any time you have any reason to believe that any of the digital content infringes any copyright or other intellectual property rights belonging to any third party, or is otherwise unlawful in any country or in any jurisdiction, you must promptly notify us and provide such documentation and information relating to the possible infringement or unlawfulness as we may reasonably request.

4.9       Our rights if there is an infringement of copyright etc. If at any time we have reason to believe that any of the digital content infringes any copyright or other intellectual property rights belonging to any third party, or is otherwise unlawful in any country or in any jurisdiction, we may require you to stop using that digital content. If this happens we may either provide you with suitable alternative digital content or end our contract with you in accordance with clause 10.1.

4.10     Your obligations to cooperate in any enforcement action. If at any time we have reason to believe that any third party is doing any act or thing which infringes any copyright or other intellectual property rights in any of the digital content, you must do all such acts and things as we may reasonably require in connection with the enforcement of such rights, including the issue of legal proceedings. We will be responsible for the cost of any such proceedings, and we will be entitled to any damages, account of profits and awards of costs recovered.

4.11     Our rights as the author of the digital content. We, being the sole author of the digital content, assert our moral right to be identified as the author of the digital content (under Chapter 4 of the Copyright, Designs & Patents Act 1988).

4.12     Your responsibility to obtain all required licences etc. You are responsible for obtaining all licences and other consents that are required in connection with your use of the digital content (including any applicable PRS for Music Ltd licence), and shall pay all applicable fees and royalties to the relevant collection societies in accordance with its rules.

4.13     What happens to the licence if the contract between you and us ends? If the contract between you and us ends for any reason (whether in accordance with these terms, by operation of law or otherwise), the licence granted under clause 4.3 shall automatically end as well, and you must immediately stop using the digital content and thereafter you will have no right to use any of the digital contact for any purpose. For the avoidance of doubt, all the copyright and other intellectual property rights in the digital content which now or at any time in the future will subsist in any part of the world will belong to us.

5          Your rights to make changes

If you wish to make a change to the digital content you have ordered please contact us. We will let you know if the change is possible. If it is possible we will let you know about any change to the price, the timing of supply, or anything else which would be necessary as a result of your requested change, and ask you to confirm whether you wish to go ahead with the change.

6          Our rights to make changes

We may update or require you to update any digital content you have ordered to reflect any changes in relevant laws and regulatory requirements or to implement minor technical adjustments and improvements, for example to address a security threat. These changes should not affect your use of the digital content.

7          Providing the digital content

7.1       When we will supply the digital content. We will make the digital content available for download by you on or before the delivery date specified in your order, and if no such date is specified then within a reasonable time (usually 28 days) after we accept your order.

7.2       How we will supply the digital content. We will supply you with an encrypted audio file attached to an email sent to you at the email address specified in your order.

7.2       We are not responsible for delays outside our control. If our supply of the digital content is delayed by an event outside our control then we will contact you as soon as possible to let you know, and we will take steps to minimise the effect of the delay. Provided we do this we will not be liable for any delays caused by the event, but if there is a risk of substantial delay you may contact us to end the contract between you and us and receive a refund for any digital content you have paid for but not received.

7.3       What will happen if you do not give any required information to us? We may need certain information from you so that we can supply the digital content to you. If so we will contact you to ask for this information. If you do not give us this information within a reasonable time of us asking for it, or if you give us incomplete or incorrect information, we may either end the contract between you and us (and clause 10.3 will apply) or make an additional charge of a reasonable sum to compensate us for any extra work that is required as a result. We will not be responsible for supplying any digital content late or not supplying any part of the digital content if this is caused by you not giving us the information we need within a reasonable time of us asking for it.

7.4       Reasons we may suspend the supply of digital content to you. We may have to suspend the supply of digital content to deal with any technical problems or make minor technical changes, update the digital content to reflect any changes in the relevant laws and regulatory requirements, or make changes to the digital content as requested by you or notified by us to you (see clause 6).

7.5       Your rights if we suspend the supply of digital content. We will contact you in advance to tell you we will be suspending the supply of any digital content, unless the problem is urgent or an emergency. You may contact us to end the contract between you and us if we suspend the supply of any digital content, or tell you we are going to suspend it, in each case for a period of more than 7 days. We will refund any sums you have paid in advance for the digital content in respect of the period after you end the contract.

7.6       We may also suspend the supply of the digital content if you do not pay. If you do not pay us for the digital content when you are supposed to (see clause 14.2) and you still do not make payment within 7 days of us reminding you that payment is due, we may suspend the supply of all or any of the digital content until you have paid us the outstanding amount. We will contact you to tell you we are suspending the supply of the digital content. We will not suspend the digital content where you dispute an unpaid invoice (see clause 14.5). We will not charge you for the digital content during the period for which it is suspended. As well as suspending the digital content we can also charge you interest on the overdue payment (see clause 14.4).

8          Your rights to end the contract between you and us

8.1       You can always end your contract with us. Your rights when you end the contract will depend on whether there is anything wrong with the digital content we have supplied, how we are performing, when you decide to end the contract, and whether you are a consumer or business customer…

  • If the digital content is faulty or misdescribed you may have a legal right to end the contract, or to get the digital content replaced, or to get some or all of your money back – if you are a consumer see clause 12 and if you are a business see clause 13.
  • If you want to end the contract because of something we have done, or have told you we are going to do – see clause 8.2.
  • If you are a consumer and have just changed your mind about the digital content – see clause 8.3. You may be able to get a refund if you are within the cooling-off period, but this may be subject to deductions.
  • In all other cases where if we are not at fault and you are not a consumer exercising your right to change your mind – see clause 8.6.

8.2       Ending the contract because of something we have done or are going to do. If you are ending the contract because there is a risk that the supply of the digital content may be significantly delayed because of events outside our control, we have suspended or have notified you that we are going to suspend the supply of any digital content for technical reasons for a period of more than 7 days, or you have a legal right to end the contract because of something we have done wrong, the contract will end immediately and we will refund you in full for any digital content which has not been supplied, and you may also be entitled to compensation.

8.3       Exercising your right to change your mind if you are a consumer (Consumer Contracts Regulations 2013). If you are a consumer then for most digital content bought online you have a legal right to change your mind within 14 days and receive a refund. These rights, under the Consumer Contracts Regulations 2013, are explained in more detail in these terms.

8.4       When consumers do not have a right to change their minds. Your right as a consumer to change your mind does not apply after you have started to download the digital content we have supplied.

8.5       How long do consumers have to change their minds? You have 14 days after the day we email you to confirm that we accept your order, or if earlier until you start downloading the digital content we have supplied. If we delivered the digital content to you immediately, and you agreed to this when ordering, you will not have a right to change your mind.

8.6       Ending the contract where we are not at fault and there is no right to change your mind. Even if we are not at fault and you are not a consumer who has a right to change their mind (see clause 8.1), you can still end the contract before it is completed, but you may have to pay us compensation. A contract for digital content is completed when the digital content is downloaded and paid for. If you want to end a contract before it is completed where we are not at fault and you are not a consumer who has changed their mind, just contact us to let us know. The contract will end immediately and we will refund any sums paid by you for any digital content not supplied, but we may deduct from that refund (or if you have not made an advance payment then charge you) reasonable compensation for the net costs we will incur as a result of you ending the contract.

9          How to end the contract between you and us (including if you are a consumer who has changed their mind)

9.1       Tell us you want to end the contract. To end the contract please let us know by emailing us at studio@louisebyrnemusic.com or by writing to us at Louise Byrne Music, Studio 18839, PO Box 6945, London W1A 6US, England or by telephoning us on ++44(0) 7758 596 089. Please provide your name and postal address, email address and telephone number, state the order number and date of order, and include a description of the digital content you bought. You may use the Model Cancellation Form at the end of these terms if you wish.

9.2       How we will refund you. If you are entitled to a refund under these terms we will refund you the price you paid for the digital content by the method you used for payment. However, we may make deductions from the price, as described below.

9.3       When your refund will be made. We will make any refunds due to you without undue delay. If you are a consumer exercising your right to change your mind then your refund will be made within 14 days of your telling us you have changed your mind.

10        Our rights to end the contract between you and us

10.1     We may end the contract where there is an infringement of copyright etc. We may end the contract at any time by writing to you if under clause 4.9 we have reason to believe that any of the digital content infringes any copyright or other intellectual property rights belonging to any third party, or is otherwise unlawful in any country or in any jurisdiction, and we have decided to end the contract. In such a situation, we will refund to you in full all money you have paid for the digital content.

10.2     We may end the contract if you break it. We may end the contract at any time by writing to you if you do not make any payment to us when it is due and you still do not make payment within 7 days of us reminding you that payment is due, you do not, within a reasonable time of us asking for it, provide us with information that is necessary for us to supply the digital content to you, or you do not download the digital content within a reasonable time.

10.3     You must compensate us if you break the contract. If we end the contract in the situations set out in clause 10.2, we will refund any money you have paid in advance for any digital content we have not supplied, but we may deduct or charge you reasonable compensation for any net costs we incur as a result of you breaking the contract.

11        If there is a problem with the digital content

11.1     How to raise a question or complaint. If you have any questions or complaints about the digital content we supply please contact us. You can do this by emailing us at studio@louisebyrnemusic.com or by writing to us at Louise Byrne Music, Studio 18839, PO Box 6945, London W1A 6US, England or by telephoning us on ++44(0) 7758 596 089.

11.2     No denigration etc. Each of you and us will not denigrate or make or permit to be made any adverse or derogatory comment about the other, and shall not do or permit to be done any act or thing which brings or may bring the other into disrepute.

12        Your rights in respect of defective digital content if you are a consumer

12.1     Your key legal rights as a consumer. If you are a consumer we are under a legal duty to supply digital content that is in conformity with the contract between you and us. See the summary below for your key legal rights. Nothing in these terms will affect your legal rights.

Summary of your key legal rights

This is a summary of your key legal rights. These are subject to certain exceptions. For detailed information please visit the Citizens Advice on their website www.adviceguide.org.uk or telephone them on ++44(0) 3454 04 05 06.

The Consumer Rights Act 2015 says digital content must be as described, fit for purpose and of satisfactory quality.

If your digital content is faulty, you are entitled to a repair or a replacement.

If the fault cannot be fixed, or if it has not been fixed within a reasonable time and without significant inconvenience, you can get some or all of your money back.

If you can show the fault has damaged your device and we have not used reasonable care and skill, you may be entitled to a repair or compensation.

Also see clause 8.3.

12.2     Your obligation to delete rejected digital content. If you wish to exercise your legal rights to reject any digital content we have supplied then you must irretrievably delete all copies of the digital content stored on any magnetic or optical disk or memory and all matter derived from such sources which is in your possession or under your control.

13        Your rights in respect of defective digital content if you are a business

13.1     If you are a business customer we warrant that on supply the digital content will conform in all material respects with its description and any relevant specifications, be free from material defects in design, material and workmanship, and be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).

13.2     Subject to clause 13.3, if you give us notice in writing within a reasonable time of discovery that any digital content does not comply with any of the warranties set out in clause 13.1 and we are given a reasonable opportunity of examining such digital content, we will replace the defective digital content or refund the price of the defective digital content in full.

13.3     We will not be liable for any digital content’s failure to comply with any of the warranties set out in clause 13.1 if you make any further use of such digital content after giving a notice in accordance with clause 13.2, the defect arises because you failed to follow our instructions as to its download, or if there are no such instructions then good download practice, the defect arises as a result of us following any specification supplied by you, you alter or amend the digital content without our written consent, or the defect arises as a result of wilful damage, negligence or abnormal working conditions.

13.4     Except as provided in this clause 13, we shall have no liability to you in respect of any digital content’s failure to comply with any of the warranties set out in clause 13.1.

13.5     These terms shall apply to any replacement digital content supplied by us under clause 13.2.

14        Price and payment

14.1     Where to find the price for the digital content. The price of the digital content (which includes any VAT or other sales tax that may be chargeable) will be the price indicated on the order page when you place your order.

14.2     When you must pay and how you must pay. We accept payment with all major credit and debit cards. You must pay for the digital content before you download it.

14.3     Our right of set-off if you are a business customer. If you are a business customer you must pay all amounts due to us under these terms in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

14.4     We can charge interest if you pay late. If you do not make any payment to us by the due date we may charge interest to you on the overdue amount at the rate of 8% a year above the base lending rate of the Bank of England from time to time. This interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. You must pay us interest together with any overdue amount.

14.5     What to do if you think an invoice is wrong. If you think an invoice is wrong please contact us promptly to let us know. You will not have to pay any interest until the dispute is resolved. Once the dispute is resolved we will charge you interest on correctly invoiced sums from the original due date.

15        Our responsibility for loss or damage suffered by you if you are a consumer

15.1     We are responsible to you for foreseeable loss and damage caused by us. If we fail to comply with these terms, we are responsible for any loss or damage you may suffer that is a foreseeable result of our breaking the contract between you and us or our failing to use reasonable care and skill, but we are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if either it is obvious that it will happen, or if at the time the contract was made both us and you knew it might happen.

15.2     We do not exclude or limit in any way our liability to you where it would be unlawful to do so. This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors, for fraud or fraudulent misrepresentation, or for breach of your legal rights in relation to the digital content as summarised at clause 12.1.

15.3     When we are liable for damage caused by defective digital content. If defective digital content which we have supplied damages a device or digital content belonging to you and this is caused by our failure to use reasonable care and skill we will either repair the damage or pay you compensation.

15.4     We are not liable for business losses. If you are a consumer we only supply the digital content for to you for domestic and private use. If you use any of the digital content for any commercial, business or re-sale purpose our liability to you will be limited as set out in clause 16.

16        Our responsibility for loss or damage suffered by you if you are a business

16.1     Liability which we do not seek to exclude or restrict. Nothing in these terms shall limit or exclude our liability for death or personal injury caused by our negligence, or the negligence of our employees, agents or subcontractors (as applicable), fraud or fraudulent misrepresentation, breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods & Services Act 1982, defective products under the Consumer Protection Act 1987, or any matter in respect of which it would be unlawful for us to exclude or restrict liability.

16.2     Implied terms which are excluded from the contract between you and us. Except to the extent expressly stated in clause 13.1, all terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3 to 5 of the Supply of Goods & Services Act 1982 are excluded.

16.3     Exclusions and restrictions of our liability to you. Subject to clause 16.1, we shall not be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with any contract between us, and our total liability to you for all other losses arising under or in connection with the contract between you and us, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall be limited to the total sums paid by you for the digital content under the contract.

17        How we may use your personal information

We will only use your personal information as set out in our privacy notice, a copy of which can be found on our website www.louisebyrnemusic.com or is available upon request.

18        Other important terms

18.1     We may transfer the contract between you and us to someone else. We may transfer our rights and obligations under these terms to another organisation. We will always tell you in writing if this happens, and we will ensure that the transfer will not affect your rights under the contract.

18.2     You need our consent to transfer your rights to someone else. You may only transfer your rights or your obligations under these terms to another person if we agree to this in writing.

18.3     Nobody else has any rights under the contract between you and us. This contract is between you and us. No other person shall have any rights to enforce any of its terms. Neither of us will need to get the agreement of any other person in order to end the contract or make any changes to these terms.

18.4     If a court finds part of the contract between you and us illegal, the rest will continue in force. Each of the paragraphs of these terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.

18.5     Even if we delay in enforcing the contract between you and us, we can still enforce it later. If we do not insist immediately that you do anything you are required to do under these terms, or if we delay in taking steps against you in respect of your breaking the contract, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date.

18.6     Which laws apply to the contract between you and us and where you may bring legal proceedings if you are a consumer? These terms are governed by English law, and you can bring legal proceedings in respect of the digital content in the English courts.

18.7     Which laws apply to this contract between you and us and where you may bring legal proceedings if you are a business? If you are a business, any dispute or claim arising out of or in connection with the contract or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England, and the courts of England shall have exclusive jurisdiction to settle any such dispute or claim.

September 2018

 

MODEL CANCELLATION FORM FOR CONSUMER CUSTOMERS

Complete and return this form only if you wish to withdraw from the contract

To        LOUISE BYRNE MUSIC

Date …………………………………………………..

I/We* hereby give notice that I/we* wish to cancel my/our* contract for the supply of the following digital content…                                                                                          * Delete as appropriate

Name of customer(s)   ……………………………………………………………………………

Postal address              …………………………………………………………………………..

…………………………………………………………………………..

…………………………………………………………………………..

…………………………………………………………………………..

Email address              …………………………………………………………………………..

Telephone number       …………………………………………………………………………..

Order number              ……………………………………………………

Date of order                ……………………………………………………

Description of  digital content              ……………………………………………………………

………………………………………………………….. (signed)

Signature(s) of customer(s)*                                                                            *Only if form is notified on paper