DOWNLOAD CENTRE USER
AGREEMENT
PARTIES
1. You, the User; and
2. Downloadhome.co.uk
[agents for SIMPLEMINDS Ltd],
RECITALS
1. The User wishes to access
the Website ‘SIMPLEMINDS DOWNLOAD CENTRE’, hosted by Downloadhome,
in order to view and/or purchase certain music-related content.
OPERATIVE PROVISIONS
1. Definitions &
Construction
1.1 Unless the context
otherwise requires the following words and phrases shall have the following
meanings respectively:-
"the
Act"
means the Copyright Designs and Patents Act 1988;
"this
Agreement"
means the agreement made between the parties embodied in
this document together with any documents incorporated by reference;
"Bonus
Material"
means any material other than Recordings made available to
Members by Downloadhome at the Website;
"Content
Providers"
means the respective owners of Recordings and/or Bonus
Material administered by Downloadhome and made
available at the Website;
"Data"
means information acquired at or displayed at the Website;
"Database"
means any collation of information stored by Downloadhome in electronic form relating to Website Users;
"Internet"
means the internet and any other interactive online
platform;
"Member"
means any registered user of the SIMPLEMINDS DOWNLOAD
CENTRE Website;
"Messages"
means any information posted at the Website by Content
Providers, Visitors and/or Members;
"Payment
Partner"
means such third party payment agent authorised
by Downloadhome to effect payments in relation to the
Website;
"Personal
Data"
means personal data acquired at the Website relating to
the User;
"Privacy
Policy"
means the privacy policy displayed at the Website from
time to time relating to the use of Personal Data;
"Public Noticeboards"
means any part of the Website, such as message boards and chatrooms, where Members and/or Visitors may post Messages;
"Recordings"
means audio and/or audio-visual recordings made available
by Downloadhome at the Website;
"Visitor"
means any unregistered user of the Website;
"the
Webmaster"
means webmaster@downloadhome.co.uk or such other email
address as may be displayed at the Website from time to time;
"the
Website"
means the SIMPLEMINDS
DOWNLOAD CENTRE website, the homepage of which is currently found attached to
www.simpleminds.com and any other webpages hosted by Downloadhome which are accessed solely from this website
and any temporary or replacement incarnations of this website;
"Website
Content"
means all Recordings, Bonus Material, Data and any other
software, artwork, layout, trademarks or other materials comprising the Website
or made available at the Website;
"Website
Users"
means Downloadhome, the Content
Providers, Visitors and Members.
1.2 Unless the context
otherwise requires the words and expressions used in this Agreement shall have
the same meanings as are given to them in the Act.
1.3 Where the context
requires in this Agreement words denoting the singular shall include the plural
and vice versa, words denoting the masculine gender shall include the feminine
gender and words denoting persons shall include corporate entities.
1.4 Unless the context
otherwise requires references in this Agreement to any clause shall be deemed
to be a reference to a clause in this Agreement, and references to any schedule
shall be deemed to be a reference to a schedule to this Agreement.
1.5 Unless the context
otherwise requires any reference in this Agreement to any statute or other
regulation or any guild agreement shall be a reference to such as the same may
from time to time be amended or replaced.
1.6 The liability of any
party to this Agreement comprising more than one person shall be joint and
several.
1.7 References to a party
shall be deemed to include that party's successors in title and shall unless
the context requires otherwise be deemed to be a reference to a party to this
Agreement.
1.8 The recitals and
headings used in this Agreement shall be deemed not to be a part of this
Agreement nor act in the construction of any provision of this Agreement.
1.9 Unless expressly
provided otherwise the provisions of the Contracts (Rights of Third Parties)
Act 1999 shall not apply to this Agreement and no provision of this Agreement
shall confer any right on any third party.
2. User Obligations
2.1 The User shall not use
the Website in any manner likely to injure, offend or become a nuisance to any
Website User.
2.2 The User shall not copy
any of the Website Content without the consent of Downloadhome
or use the Website Content in any unlawful manner.
2.3 The User shall not use
or republish any of the Data without the consent of the parties to which the
Data relates. In particular the User shall refrain from so-called spamming
activities which may affect any Website User.
2.4 The User shall not post
Messages likely to offend or defame any person or incite persons to commit any
unlawful act.
2.5 If the User acquires a
password from Downloadhome for access to any part of
the Website then the user shall not disclose that password to third
parties.
2.6 The User shall refrain
from any act which would interfere with the operation of the Website nor
attempt any unauthorised access to (so-called "hacking" of) any Website Content.
2.7 The User shall promptly
notify the Webmaster of any person impersonating the User at the Website or
using the User's password without the User's permission. [by
logging in and clicking ‘CONTACT
3. Data Protection
3.1 Subject to clause 3.2
the User consents to Downloadhome retaining Personal
Data as part of a Database and dealing with such data for the purpose of marketing
and exploiting the Website.
3.2 Notwithstanding the
provisions of clause 3.1 Downloadhome shall not use
Personal Data other than in accordance with data protection legislation and/or
the Privacy Policy. In particular, Downloadhome shall
not make Personal Data available to third parties without the consent of the
User.
3.3 The consent of the User
shall be deemed given to Downloadhome for all uses of
Personal Data which are necessary for the purpose for which it is supplied (eg. delivery of Recordings purchased at the Website or maintaining
the User as a Member) and/or for all uses which are elected by the User using
so-called "tick boxes" or other opt in / opt out procedures commonly utilised on the Internet.
3.4 Subject to clause 3.2 Downloadhome may retain Personal Data as part of a Database
notwithstanding that the User may cease to be a Website User.
4. Acquisition of Content
via the Website and Member Fees
4.1 All Recordings and Bonus
Material acquired by the User shall be subject to any additional agreements and
restrictions displayed at the Website or otherwise notified to the User as part
of the acquisition procedure.
4.2 Unless expressly
notified to the contrary, all Recordings and Bonus Material are acquired under
a non-transferrable licence
personal to the User.
4.3 Payment for Recordings
and Bonus Material (and Member fees, if applicable) shall be transacted by the
Payment Partner. The User shall abide by the terms of the Payment Partner for
such transactions and shall refer any queries relating to such transactions to
the Payment Partner.
4.4 In respect of any fees
as a Member (if applicable), the User may terminate its status as a Member
within seven (7) days of first joining and to receive a full refund of such
fees.
4.5 In respect of any
payments made for the acquisition of Recordings or Bonus Material delivered in
electronic form, the User acknowledges that such material is deemed consumable
and therefore not capable of being returned.
4.6 The User shall not
attempt to alter or otherwise carry out any unauthorised
act in respect of any so-called digital rights management applications or data
embedded in Recordings or Bonus Material.
4.7 The User acquires all
Recordings and Bonus Material at its own risk. Downloadhome
accepts no liability for any offence, injury or other harm suffered by the User
as a result of acquiring any Recordings or Bonus Material other than arising
from the negligent act of Downloadhome.
5. Public Noticeboards
5.1 Downloadhome
reserves the right in its sole discretion to remove any Messages or disable in
whole or in part any Public Noticeboard without
notice.
5.2 The User acknowledges
that Downloadhome makes no warranty as to the
accuracy, lawfulness or otherwise appropriateness of the content of Messages
and accepts no liability for any offence, injury or other harm suffered by the
User as a result of viewing Messages or accessing the Public Noticeboards save in respect of physical injury suffered by
the User arising from Downloadhome's negligence.
5.3 The User warrants that
Messages posted by the User shall not infringe the rights of any third
party.
5.4 Notwithstanding the
provisions of clause 5.2 Downloadhome shall promptly
investigate and, if necessary, remove Messages causing harm or offence to any
person, where the Webmaster has been notified of such.
5.5 All Messages posted by
the User shall become the property of Downloadhome.
6. Indemnity and Limitation
of Liability
6.1 The User indemnifies Downloadhome against any loss (including legal fees) that Downloadhome may suffer resulting from any claim against Downloadhome inconsistent with any representation or
agreement made by the User in this Agreement.
6.2 Downloadhome's
liability under this Agreement shall, other than in respect of personal injury
caused by negligence, be limited as follows:
6.2.1 in respect of any
claim arising from the purchase of Recordings or Bonus Material, or payment of
Member fees, the amount paid by the User for the same; and/or
6.2.2 in respect of any
other claim, or aggregate claims, one pound (£1).
7. Miscellaneous
7.1 The User shall not
disclose without Downloadhome's prior written consent
any confidential information that the User may receive pursuant to entering
into this Agreement save as required in legal proceedings or to the User's
professional advisers. A disclosure by the User's professional advisers shall
be deemed to be a disclosure by the User.
7.2 Downloadhome
shall not be in breach of those obligations where performance is reasonably
prevented by a so-called force majeure provided that Downloadhome takes all reasonable steps to mitigate its
effect.
7.3 This Agreement
represents the entire agreement between the parties in respect of its subject
matter.
7.4 If any clause or any
part of this Agreement or the application of such to any party shall for any
reason be adjudged by a court or other legal authority of competent
jurisdiction to be invalid, such judgement shall not
affect the remainder of this Agreement, the terms of which shall remain in full
force and effect.
7.6 All notices referred to
in this Agreement shall be sent:
7.6.1 in the case of notices
to the User, if applicable, to the email address provided by the User;
7.6.2 in the case of notices
to Downloadhome, to the Webmaster.
7.7 The User may not assign
its rights under this Agreement.
7.8 The laws of