Effective as from 14th January 2012
This agreement (“Agreement”) is a legally binding agreement between you and Bardowl Limited, a company registered in the UK under number 7088281 (“Bardowl”), and registered at Bardowl Ltd, Carpenter House, Broad Quay, Bath, BA1 1UD, that governs your use of Bardowl’s Software Application and online streaming Bardowl Service (as defined below). The Bardowl Service can be accessed as paid-for service, having either a monthly limit on listening time (“Restricted Service”) or no monthly limit on listening time (“Unlimited Service”), collectively referred to as the “Bardowl Service”. Please note that you must read and agree to the terms and conditions of this Agreement before you use the Bardowl Software Application or the Bardowl Service. If you do not agree to the terms and conditions of the Agreement, you may NOT use the Bardowl Software Application or the Bardowl Service. For a detailed description of the features of the Bardowl Service, please see the Bardowl website, www.bardowl.com.
By creating a Bardowl account, or by downloading or using the Bardowl Software Application or the Bardowl Service, you confirm that you are 18 years of age or more, or that you are 12 years of age or more and that you have received your parent’s or guardian’s consent to enter into this Agreement, that you have your residence in one of the countries in which Bardowl provides the Bardowl Service, that any registration information that you submit to Bardowl is true, accurate and complete, that you will update such information in order to keep it current, and that you agree to the terms and conditions of this Agreement and the Bardowl Privacy Statement, www.bardowl.com/privacy/. This Agreement replaces any previous agreements entered into between you and Bardowl.
Changes to the Agreement
Bardowl may make changes to this Agreement at its sole discretion. Any material changes will be communicated to you and your acceptance of and / or continued use of the Bardowl Software Application or the Bardowl Service after such notification of changes to this Agreement will constitute your acceptance of such changes.
Grant of license
You are granted a limited, non-exclusive, revocable licence to make personal non-commercial use of the Bardowl Software Application (including a right to download said application) and the Bardowl Service and to receive the media content made available through the Bardowl Service in your home country. You do not have a right to transfer or sublicense your rights under this Agreement.
Purchase of the Bardowl Service
If you agree to pay the fee for access to the Bardowl Service such fee will be charged by the company designated by Bardowl in accordance with the payment method you have chosen for your purchase. If you are paying by credit or debit card, by designating a card to be billed, you confirm that you are authorised to make such purchase and that you are the holder of such card (i.e. that the card is issued in your name). All prices stated on the Bardowl websites are inclusive of VAT (where applicable) and other applicable taxes and fees. Bardowl’s VAT registration number is GB 996 906 155.
Use of cached content
The Bardowl Service permits you to download temporary copies of content and play it locally for so long as you maintain your subscription to the Bardowl Service. As a subscriber to the Bardowl Service, you are permitted to store such cached content on up to three (3) personal computers including smartphones and tablets.
Bardowl may change the price for the Bardowl Service from time to time, such changed price will take effect after the expiry of the then current paid-for period (i.e. the term that you have already paid for). Any price change will be communicated to you. If you do not wish to be bound by such changed price relating to your Bardowl Service you may terminate your subscription of your Bardowl Service in accordance with Clause 13 (Term and termination). Your continued use of the Bardowl Service after the communication of such price change to you constitutes an acceptance of such new price.
Automatic subscription renewal
Your subscription to the Bardowl Service will automatically renew at the end of each subscription term unless you terminate your subscription prior to the end of such subscription term in accordance with Clause 12 (Term and termination). Such renewal will always be for a monthly subscription term. At the time of renewal the payment method you have designated to be charged for the purchase of the Bardowl Service will automatically be charged with the applicable amount.
If you have subscribed to the Bardowl Service online, you have the right to cancel your purchase and receive a full refund within 14 days of purchase. Please note, however, by logging in to the Bardowl Service during this 14 day period you agree to the early provision of the Bardowl Service and you will not be able to cancel the purchase and receive any refund.
Restrictions of use
For the avoidance of doubt, you agree that you may not (without limitation):
- copy, reproduce, record, “rip”, make available to the public or otherwise use any part of the Bardowl Software Application or the Bardowl Service or its content (including but not limited to audio books, images and text) in a manner not expressly permitted under this Agreement;
- sell or attempt to sell any invitation to access the Bardowl Service, or resell any code used to access the Bardowl Paid for Service;
- provide your password to any other person or use any other person’s user name and password;
- reverse-engineer, decompile, disassemble, modify or create derivative works based on the Bardowl Software Application or the Bardowl Service or any part thereof, except under permitted law;
- circumvent any technology used by Bardowl, its licensors, or any third party to protect content accessible through the Bardowl Software Application and Bardowl Service;
- use the Bardowl Software Application or the Bardowl Service in a way that violates the terms of this Agreement;
- circumvent any territorial restrictions applied by Bardowl;
In addition to the above, you agree to take all reasonable care to prevent unauthorised use of the Bardowl Software Beta Application and the Bardowl Beta Service and its content. You also acknowledge and agree that Bardowl may remove or reclaim your username at any time if Bardowl in its absolute discretion considers such action appropriate.
The Bardowl Software Application and the Bardowl Service incorporate a feature that automatically generates and distributes ‘quotes’, which are short extracts of audio content not exceeding thirty seconds in length. Notwithstanding the restrictions set out in Section 9 above, you may use this feature to create ‘quotes’ which you may then share with other persons.
Advertising and use of computational resources
As consideration for your rights under this Agreement, you agree that (i) Bardowl and its business partners have a right to provide advertising and other information to you, and that (ii) Bardowl has a right to allow the Bardowl Software Application and the Bardowl Service to utilise the processor, bandwidth and storage hardware on your computer or other relevant device for the limited purpose of facilitating the communication and transmission of content and other data or features to you and other users of the Bardowl Software Application and the Bardowl Service, and to facilitate the operation of the network on which the Bardowl Software Application and the Bardowl Service runs.
If you have any questions concerning the Bardowl Software Application, the Bardowl Service or this Agreement, please contact Bardowl customer service by visiting the help section of the Bardowl website, www.bardowl.com.
Term and termination
This Agreement will become effective in relation to you when you create a Bardowl account or when you start using the Bardowl Software Application or the Bardowl Service and will remain effective until terminated by you or Bardowl. You may cancel your subscription of the Bardowl Service at any time by visiting your Bardowl account page, for purchases made there, or your Apple iTunes account page, for purchases made there. Termination shall have effect at the expiry of the then-current subscription period that you have already paid for (e.g. one month). Bardowl reserves the right to terminate this Agreement or suspend your Bardowl account at any time in case of unauthorised, or suspected unauthorised use of the Bardowl Software Application or the Bardowl Service whether in contravention of this Agreement or otherwise. If Bardowl terminates this Agreement, or suspends your Bardowl account for any of the reasons set out in this section, Bardowl shall have no liability or responsibility to you, and Bardowl will not refund any amounts that you have previously paid.
Upon termination for any reason:
- all rights granted to you under this Agreement shall cease;
- you must cease all activities authorised by this Agreement;
- you must immediately pay to Bardowl any sums due to Bardowl under this Agreement; and
- you must immediately delete or remove the Software from all computer equipment in your possession, and immediately destroy or return to Bardowl (at Bardowl’s option) all copies of the Software then in your possession, custody or control and, in the case of destruction, certify to Bardowl that you have done so.
The use of the Bardowl Software Application and the Bardowl Service (including but not limited to its content) is at your own risk. You acknowledge that the Bardowl Software Application and the Bardowl Service have not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the facilities and functions of the Bardowl Software Application and the Bardowl Service meet your requirements. You acknowledge that the Bardowl Software Application may not be free of bugs or errors, and agree that the existence of minor errors shall not constitute a breach of this Agreement. Bardowl does not warrant, endorse, guarantee or assume responsibility for any product or service advertised or offered by a third party on or through the Bardowl Service or any hyperlinked website, or featured in any banner or other advertising. Consequently Bardowl will in no way be responsible for any transaction between you and third-party providers of products or services advertised on or through the Bardowl Service. No advice or information whether oral or in writing obtained by you from Bardowl shall create any warranty on behalf of Bardowl in this regard.
Limitation of liability
This clause sets out the entire financial liability of the parties (including any liability for the acts or omissions of their respective employees, agents and subcontractors) to each other in respect of:
- any breach of this Agreement however arising;
- any use made of the Bardowl Software Application or the Bardowl Service by you, or of any product or service incorporating any of the Bardowl Software Application or the Bardowl Service; and
- any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
Nothing in this Agreement shall limit or exclude the liability of either party for:
- death or personal injury resulting from negligence; or
- fraud or fraudulent misrepresentation; or
- breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
- breach of section 2 of the Consumer Protection Act 1987; or
- the deliberate default or wilful misconduct of that party, its employees, agents or subcontractors.
Without prejudice to clause above, neither party shall under any circumstances whatever be liable to the other, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any:
- loss of income;
- loss of business profits or contracts;
- business interruption;
- loss of the use of money or anticipated savings;
- loss of information;
- loss of opportunity, goodwill or reputation;
- loss of, damage to or corruption of data; or
- any indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise;
provided that this clause shall not prevent any other claims for direct financial loss that are not excluded by any of categories (a) to (h) inclusive of this clause.
Subject to this agreement, Bardowl’s maximum aggregate liability under or in connection with this Agreement, or any collateral contract, whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to a sum equal to 100% of the subscription fee paid by you to Bardowl in the previous 3 months.
This Agreement sets out the full extent of Bardowl’s obligations and liabilities in respect of the supply of the Bardowl Software Application and the Bardowl Service. In particular, there are no conditions, warranties, representations or other terms, express or implied, that are binding on Bardowl except as specifically stated in this Agreement. Any condition, warranty, representation or other term concerning the supply of the Bardowl Software Application or the Bardowl Service which might otherwise be implied into, or incorporated in, this Agreement, or any collateral contract, whether by statute, common law or otherwise, is hereby excluded to the fullest extent permitted by law.
You agree to indemnify and hold Bardowl and its officers, directors, employees and licensors harmless from any claim or demand (including but not limited to reasonable legal fees) made by a third party due to or arising out of or related to your violation of the terms and conditions of this Agreement or your violation of any laws, regulations or third party rights.
You acknowledge that all intellectual property rights in the Bardowl Software Application, the Bardowl Service and the content provided through the Bardowl Service anywhere in the world belong to Bardowl or Bardowl’s licensors, that rights in the Bardowl Software Application, the Bardowl Service and the content provided through the Bardowl Service are licensed (not sold) to you, and that you have no rights in, or to, the Bardowl Software Application, the Bardowl Service or the content provided through the Bardowl Service other than the right to use them in accordance with the terms of this Agreement. You acknowledge that you have no right to have access to the Bardowl Software Application, the Bardowl Service or the content provided through the Bardowl Service in source code form or in unlocked coding or with comments. Furthermore, you must not infringe any third party’s intellectual property rights in using the Bardowl Service. Further, you may not remove or alter any copyright, trade mark or other intellectual property notices contained on or provided through the Bardowl Software Application or the Bardowl Service.
Technology limitations and modifications
Bardowl will use reasonable endeavours to keep the Bardowl Software Application and the Bardowl Service operational. However, certain technical difficulties or maintenance requirements may, from time to time, result in temporary interruptions. Bardowl reserves the right at any time to modify or discontinue, temporarily or permanently, functions and features of the Bardowl Software Application and the Bardowl Service with or without notice to you.
Transfer of rights and obligations
This Agreement is binding on you and us, and on our respective successors and assigns. You may not transfer, assign, charge or otherwise dispose of this Agreement, or any of your rights or obligations arising under it, without our prior written consent. We may transfer, assign, charge, sub-contract or otherwise dispose of this Licence, or any of our rights or obligations arising under it, at any time during the term of the Agreement.
If we fail, at any time during the term of this Agreement, to insist upon strict performance of any of your obligations under this Agreement, or if we fail to exercise any of the rights or remedies to which we are entitled under this Agreement, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations. A waiver by us of any default shall not constitute a waiver of any subsequent default. 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..
If any of the terms of this Agreement 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.
Governing law and disputes
This Agreement, its subject matter or its formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law and submitted to the non-exclusive jurisdiction of the English courts.
English version prevails
In the event that this Agreement is translated into other languages and there is a discrepancy between the two language versions, the English language version shall prevail.