Music Download (MP3) Terms and Conditions

Terms and Conditions for the use of www.ellashaw.co.uk (our site) and the purchase of a licence to allow the playing of MP3 music content on certain authorised devices.

This page (together with the documents referred to on it) tells you the Terms and Conditions on which we supply any of the MP3 music content (Music Content) and if available their related cover art listed on our site Music Content to you. Please read these Terms and Conditions carefully before ordering any Music Content Licence (as defined below in clause 2.6) from our site. You should understand that by ordering any Music Content Licence, you agree to be bound by these Terms and Conditions.
You should make a copy of these Terms and Conditions for future reference.

1. INFORMATION ABOUT US

ellashaw.co.uk is operated by Ella Shaw Ltd (we, us, our) registered in England and Wales under company number 08127979 and with our registered office and main trading address Kinross, Whitehalgh Lane, Lancashire BB6 8ET.

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2. HOW THE CONTRACT IS FORMED BETWEEN YOU AND US

2.1 Our site is operated by Mckenzie Creative, and by placing an order on our site you are contracting directly with Ella Shaw Ltd.

2.2 During the checkout process by clicking on the ‘Confirm digital order’ button you are agreeing to these Terms and Conditions.

2.3 When purchasing Music Content available for immediate download, you confirm, by clicking on the ‘Confirm digital order’ button that the Music Content available for immediate download should be downloaded immediately and agree that your rights under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 to cancel the order within 14 days, (the ‘Cooling Off Period’) shall not apply. If you do not wish to download Music Content available for immediate download immediately then we regret that we are unable to delay such download until the 14 day Cooling Off Period has expired and you should not use our site. This does not affect your statutory rights or any rights you may have under our Refund Policy.

2.4 When purchasing Music Content in advance of its availability for immediate download (Pre-Order) you confirm by clicking on the ‘Complete Purchase’ button that your rights under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 to cancel the contract within 14 days starting on the date of order will run concurrently with the period between order and delivery of the Music Content. You may cancel your order by entering ‘My Account’ and cancelling the order on the ‘Outstanding Order’ page at any time during the period between order and delivery of the Music Content. Where the Pre-Ordered Music Content is available for download in advance of the expiry of the 14 day Cooling Off Period, you agree, by clicking on the ‘Confirm digital order’ button that any remaining Cooling Off rights under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 will not apply and agree that the Music Content should be immediately downloaded as soon as it is available. If you do not agree then you should not use our site. This does not affect your statutory rights or any rights you may have under our Refund Policy.

2.5 Each order by you constitutes an offer to us to buy a Music Content Licence or Licences. Each order for a Music Content Licence made by you through our site is subject to acceptance by us. We may choose not to accept your order for any reason but will inform you if we do choose not to accept your order. You will make your order when you click on the ‘Pay now’ button during the checkout process. The contract between us (Contract) will only be formed when we accept your order for the Music Content Licence or Licences at the point after you have clicked the ‘Pay now’ button AND you have been forwarded to a page telling you your “payment was successful”. A confirmation email will also be sent to your registered email address.

2.6 Once the Contract is made we will grant you the non-exclusive and non-transferable right to use the Music Content to which the Contract applies for your own personal and non-commercial use only, strictly subject to these Terms and Conditions, in particular clause 8 below, and in accordance with the usage rules at clause 6.8 below. This right we grant to you is the Music Content Licence.

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3. SITE AVAILABILITY

Our site is only intended for use by people resident in the United Kingdom. We do not accept orders from individuals outside of the United Kingdom.

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4. YOUR STATUS

4.1 By registering with us and placing an order through our site, you warrant that:

(a) You are legally capable of entering into binding contracts;

(b) You are at least 18 years old;

(d) All the information you provide to us is true, accurate, current and complete in all respects including your name, email address and any other details we may request in order to process your order or resolve any customer service issue;

(e) You will inform us immediately of any changes to the information you supplied when registering by updating your personal details; and

(f) You will use the Music Content you obtain from us under the Music Content Licence in accordance with these Terms and Conditions and only for lawful purposes and in a lawful manner.

4.2 We reserve the right to:

(a) Decline a new customer registration or suspend a customer’s account at any time and at our sole discretion.

(b) Terminate, at our absolute discretion, your access to all or part of the services with or without notice.

4.3 Registration data and certain other information about you is subject to our Privacy Policy. We recommend that you read ourPrivacy Policy. before you accept these Terms and Conditions.

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5. OUR STATUS

We may also provide links on our site to the websites of other companies, whether affiliated with us or not. We cannot give any undertaking that products you purchase from third party sellers through our site, or from companies to whose website we have provided a link on our site, will be of satisfactory quality, and any such warranties are DISCLAIMED by us absolutely. This DISCLAIMER does not affect your statutory rights against the third party seller.

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6. DELIVERY OF MUSIC CONTENT, VIEWING REQUIREMENTS AND USAGE RULES

6.1 Once your order has been accepted and your payment processed successfully you will be able to access the Music Content for which you have purchased a Music Content Licence.

6.2 You will be asked to download our Download Manager, if you haven’t already, which will allow you to download the Music Content provided you have an Internet connection. YOU WILL ONLY BE ABLE TO DOWNLOAD THE MUSIC CONTENT ONCE.

6.3 Music Content can be played on any properly functioning MP3 player.

6.4 Music Content usage rules:

The Music Content Licence only permits your non-exclusive, non-transferable, personal, non-commercial use of the Music Content.
You may only make copies of the Music Content as reasonably necessary for your personal and non-commercial use of the Music Content and any other copying is strictly prohibited.

6.5 In the event of any problems with downloading the Music Content you should contact customer support at www.mckenziecreative.co.uk

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7. CONSUMER RIGHTS

7.1 We reserve the right to withdraw Music Content at any time from our site and we will not be liable to you for withdrawing any Music Content.

7.2 In the event that Music Content is withdrawn after your purchase of a Music Content Licence but prior to your download of it your sole remedy will be a refund of the price paid for such Music Content Licence. We will not make any refunds for Music Content where you have already downloaded a playable copy to an MP3 player.

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8. YOUR RIGHTS TO USE MUSIC CONTENT AND INTELLECTUAL PROPERTY RIGHTS

8.1 You acknowledge and agree that all copyright, trademarks and all other intellectual property rights in all material subsisting in our site, its design, structure, graphics, video, music and audio content and all software and source codes connected with and comprised in our site including for avoidance of doubt the Music Content, shall remain at all times vested in us or our licensors. You are permitted to use the Music Content only as expressly authorised by us, and in particular in accordance with the usage rules in clause 6 above.

8.2 You acknowledge and agree that Music Content comprised within our site is made available under the Music Content Licence for your non-exclusive, non-transferable, personal, non-commercial use only and Music Content can only be downloaded by you if you are located within the United Kingdom however once you have downloaded Music Content to an MP3 player you may, subject to these Terms and Conditions (including for the avoidance of doubt the usage rules in clause 6 above), play the Music Content on that MP3 player outside of the United Kingdom.

8.3 You may make copies of the Music Content but only as is reasonably necessary for your personal and non-commercial use of the Music Content and you agree that any other copying is strictly prohibited.

8.4 Except in the case of Music Content sold expressly as “ringtones” you shall not be permitted to use, modify, edit or repurpose Music Content as a musical ringtone on a mobile device in connection with phone calls.

8.5 Except as expressly set out above, without limitation, you may not do, or allow third parties to do, any of the following without prior written permission from us: broadcast, communicate to the public, copy, redistribute, reproduce, rent, sub-license, synchronize with a moving image, sell, transmit, modify, adapt, create derivative works of or in any way commercially exploit any of the Music Content; remove the copyright, trade mark notice or other rights management or identifier information from any copies of the Music Content; deep link to or frame any of the Music Content; interfere with, or in any other way circumvent any copy protection mechanism utilised by us in providing Music Content; or use the Music Content for any illegal activity or illegal purpose in any way.

8.6 All rights not expressly granted herein are expressly reserved by us and our licensors. You do not acquire any ownership rights in any Music Content that you have acquired under a Music Content Licence from our site.

8.7 You acknowledge that the Music Content contains intellectual property rights belonging to and/or controlled by third parties which are protected by law.

8.8 The owners and/or controllers of the Music Content, for example the record labels, distributors, aggregators and collections societies who are our licensors, are intended as third party beneficiaries under our Contract with you and may enforce this clause 8 of the Terms and Conditions against you.

8.9 In the event that you fail to comply with any of these Terms and Conditions the rights granted to you by us concerning your use of the Music Content will automatically terminate without notice and you must immediately cease all use of the Music Content and any copies thereof. Furthermore we will be entitled to restrict your access to our site and Music Content, where applicable, without notice.

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9. PRICE AND PAYMENT

9.1 The price of any Music Content Licence will be as quoted on our site from time to time, except in cases of obvious error, and will be in £ Sterling, we reserve the right to amend the price in cases of obvious error.

9.2 These prices include VAT. The prices on our site reflect the current rate of VAT that you will be charged. If you require a VAT invoice for a Music Content Licence purchased by you please contact customer services.

9.3 Prices are liable to change at any time, but changes will not affect orders that we have accepted unless there is a Pre-Order Price Promise.

9.4 For some Music Content it may be possible to pre-order Music Content Licences and there may be an additional discount (Pre-Order Price Promise) to which you are entitled. You will be notified by email on the Music Content’s release date of any Pre-Order Price Promise discount and your credit card or debit card will be charged the price of the Music Content Licence LESS the Pre-Order Price Promise discount.

9.5 Our site contains a large amount of Music Content and it is always possible that, despite our best efforts, some of the Music Content listed on our site may be incorrectly priced.

9.6 The prices quoted on our site apply only to Music Content Licences sold via our site. Where the same Music Content is available in Sainsbury’s stores or via Sainsbury’s grocery website different prices may apply.

9.7 Payment for all Music Content must be by credit or debit card. We accept payment with MasterCard and Visa cards through the Barclays Smartpay Portal. We do not accept payments with American Express, Maestro or pre-paid Mastercards. No debit or credit cards can be used on our site for cashback purposes.

You can register a new payment card at any time, but the card associated with a given order cannot be changed once you have checked out.

9.8 Your credit or debit card will be charged at the same time as we accept your order. HOWEVER in the case of a PRE-ORDERED Music Content Licence your credit or debit card will be charged the Music Content Licence price less any applicable Pre-Order Price Promise immediately prior to your being advised by email that the Music Content is available for access by you.

9.9 To ensure that your credit or debit card is not being used without your consent, we will validate name, address and other personal information supplied by you during the order process against appropriate third party databases. By accepting these Terms and Conditions you consent to such checks being made. In performing these checks personal information provided by you may be disclosed to a registered Credit Reference Agency which may keep a record of that information. This is done only to confirm your identity, a credit check is not performed and your credit rating will be unaffected.

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10. CANCELLATION AND RETURNS

10.1 Due to the nature of digital Music Content and the fact that you are given immediate access to the Music Content through the Music Content Licence you will NOT be able to cancel the order or return the Music Content once you have completed your order by clicking on the ‘Pay now’ button during the checkout process. This will not apply to pre-ordered Music Content Licences, you will be able to cancel a pre-order for a Music Content Licence at any time prior to the release date of the relevant Music Content ( see clause 2.4 above).

10.2 You are responsible for ensuring that you have carefully checked your order prior to clicking on the ‘Pay now’ button.

10.3 In circumstances where Music Content has been downloaded to a fully functioning MP3 player and fails to play (and subject always to clause 15 below) we will either provide you with replacement Music Content (of the same title) or a refund will be issued at our sole discretion.

10.4 We will usually refund any money received from you using the same method originally used by you to pay for your purchase.

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14. USE OF OUR SITE

14.1 You may not use our site for any of the following purposes:

a) disseminating any unlawful, harassing, libellous, abusive, threatening, harmful, vulgar, obscene, or otherwise objectionable material;

b) transmitting material that is or which encourages conduct that constitutes a criminal offence, results in civil liability or otherwise breaches any relevant laws, regulations or code of practice;

c) gaining unauthorised access to other computer systems;

d) interfering with any other person’s use or enjoyment of our site;

e) breaching any laws concerning the use of public telecommunications networks;

f) interfering or disrupting networks or websites connected to our site;

g) making, transmitting or storing electronic copies of materials protected by copyright without the permission of the owner; and/or

h) engaging in technically harmful behaviour, which includes but is not limited to: computer viruses, logic bombs, trojan horses, worms, harmful components, corrupted data and other malicious software or harmful data.

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15. OUR LIABILITY

15.1 The Music Content is provided “as is”, all other conditions, warranties or other terms which might have effect between the you or us or be implied or incorporated into this agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.

15.2 Our liability for losses you suffer as a result of us breaching this agreement is strictly limited to the purchase price of the Music Content Licence you purchased.

15.3 This does not include or limit in any way our liability:

(a) For death or personal injury caused by our negligence;

(b) Under section 2(3) of the Consumer Protection Act 1987;

(d) For any matter for which it would be illegal for us to exclude, or attempt to exclude, our liability.

15.4 We are not responsible for indirect losses which happen as a side effect of the main loss or damage and which are not foreseeable by you and us and even if such losses result from a deliberate breach of these Terms and Conditions by us that would entitle you to terminate the Contract between us, including but not limited to:

(a) Loss of income or revenue;

(b) Loss of business;

(d) Loss of anticipated savings; or

(e) Loss of data.

provided that this clause 15.4 shall not prevent claims for loss of or damage to your tangible property that fall within the terms of clause 15.2 or clause 15.3 or any other claims for direct financial loss that are not excluded by any of categories (a) to (e) inclusive of this clause 15.4.

15.5 We will not be liable to you for any Music Content that you find offensive or obscene irrespective of whether or not it is marked up as containing explicit material. Your use of the Music Content is at your own risk.

15.6 Although we will take all reasonable care to ensure that all descriptions and details of Music Content appearing on our site are correct at the time when the information was inputted onto the system, the information appearing on our site at any time may not reflect the exact position at the moment you place an order.

15.7 We will not be liable to you in the event of any action brought against you by an artist, record company, collection society or other party in relation to your use of the Music Content or any breach by you of any intellectual property rights protecting any Music Content.

15.8 Subject to the other provisions contained in these Terms and Conditions, our liability is limited to delivery of Music Content to the first MP3 player or other recipient device on which you download or stream the Music Content, and we shall not be deemed to be liable for any transfer or access made via any further PC or other medium, including for any upgrades to your hardware or software that may affect your access to the Music Content.

15.9 WHERE YOU BUY ANY CONTENT FROM A THIRD PARTY SELLER THROUGH OUR SITE, THE SELLER’S INDIVIDUAL LIABILITY WILL BE SET OUT IN THE SELLER’S TERMS AND CONDITIONS.
16. WRITTEN COMMUNICATIONS

Applicable laws require that some of the information or communications we send to you should be in writing. When using our site, you accept that communication with us will be mainly electronic. We will contact you by e-mail or provide you with information by posting notices on our site. For contractual purposes, you agree to this electronic means of communication and you acknowledge that all contracts, notices, information and other communications that we provide to you electronically comply with any legal requirement that such communications be in writing. This condition does not affect your statutory rights.

17. NOTICES

All notices given by you to us must be given to Ella Shaw Ltd by sending us an email at www.mckenziecreative.co.uk We may give notice to you at the e-mail address you provide to us when placing an order, or in any of the ways specified in clause 16 above. Notice will be deemed received and properly served immediately when posted on our site or 24 hours after an e-mail is sent. In proving the service of any notice, it will be sufficient to prove, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee.

18. TRANSFER OF RIGHTS AND OBLIGATIONS

18.1 The Contract between you and us is binding on you and us and on our respective successors and assigns.

18.2 You may not transfer, assign, charge or otherwise dispose of a Contract, or any of your rights or obligations arising under it (including for the avoidance of doubt the Music Content Licence), without our prior written consent. We may transfer, assign, charge, sub-contract or otherwise dispose of a Contract, or any of our rights or obligations arising under it (including for the avoidance of doubt the Music Content Licence), at any time during the term of the Contract.

19. EVENTS OUTSIDE OUR CONTROL

19.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under a Contract that is caused by events outside our reasonable control (Force Majeure Event).

19.2 Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) the following:

(a) Strikes, lock-outs or other industrial action.

(b) Civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war.

(d) Impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport.

(e) Impossibility of the use of public or private telecommunications networks including mass telecommunication failures or denial of service attacks.

(f) The acts, decrees, legislation, regulations or restrictions of any government.

19.3 Our performance under any Contract is deemed to be suspended for the period that the Force Majeure Event continues, and we will have an extension of time for performance for the duration of that period. We will use our reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which our obligations under the Contract may be performed despite the Force Majeure Event.

20. WAIVER

20.1 If we fail, at any time during the term of a Contract, to insist upon strict performance of any of your obligations under the Contract or any of these Terms and Conditions, or if we fail to exercise any of the rights or remedies to which we are entitled under the Contract, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.

20.2 A waiver by us of any default shall not constitute a waiver of any subsequent default.

20.3 No waiver by us of any of these Terms and Conditions shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing in accordance with clause 17 above.

21. SEVERABILITY

If any of these Terms and Conditions or any provisions of a Contract are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.

22. ENTIRE AGREEMENT

22.1 These Terms and Conditions and any document expressly referred to in them represent the entire agreement between us in relation to the subject matter of any Contract and supersede any prior agreement, understanding or arrangement between us, whether oral or in writing.

22.2 We each acknowledge that, in entering into a Contract, neither of us has relied on any representation, undertaking or promise given by the other or be implied from anything said or written in negotiations between us prior to such Contract except as expressly stated in these Terms and Conditions.

22.3 Neither of us shall have any remedy in respect of any untrue statement made by the other, whether orally or in writing, prior to the date of any Contract (unless such untrue statement was made fraudulently) and the other party’s only remedy shall be for breach of contract as provided in these Terms and Conditions.

23. OUR RIGHT TO VARY THESE TERMS AND CONDITIONS

23.1 We have the right to revise and amend these Terms and Conditions from time to time to reflect changes in market conditions affecting our business, changes in technology, changes in payment methods, changes in relevant laws and regulatory requirements and changes in our system’s capabilities.

23.2 We reserve the right to alter these Terms and Conditions at any time at our sole discretion by posting the amended Terms and Conditions on our site. In the event of your use of our site after the posting of the amended Terms and Conditions this will indicate your acceptance of such amended Terms and Conditions.

24. LAW AND JURISDICTIONS

24.1 Contracts for the purchase of Music Content Licences through our site and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) will be governed by English law. Any dispute or claim arising out of or in connection with such Contracts or their formation (including non-contractual disputes or claims) shall be subject to the non-exclusive jurisdiction of the courts of England and Wales.