The Nettl System is a subscription based software platform accessed on-line by you (subject to the agreement below).
Subscription Agreement
THIS AGREEMENT GOVERNS YOUR USE OF THE PLATFORM. IN CONSIDERATION OF US MAKING THE PLATFORM AVAILABLE TO YOU YOU AGREE TO BE BOUND BY THIS AGREEMENT AND ALL ADDENDUMS TO IT AND REVISIONS THEREOF. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU AND THAT YOU HAVE HAD AN OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO AGREEING TO BE BOUND BY IT. YOU FURTHER AGREE THAT THIS AGREEMENT AND ALL ADDENDUMS TO IT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN US AND SUPERSEDES ANY PROPOSAL OR PREVIOUS AGREEMENT, ORAL OR WRITTEN AND ANY OTHER COMMUNICATION BETWEEN US RELATING TO YOU ACCESSING OR USING THE PLATFORM. FOR THE AVOIDANCE OF ANY DOUBT HOWEVER, THIS CLAUSE DOES NOT SEEK TO EXCLUDE OR LIMIT OUR LIABILITY FOR FRAUDULENT MISREPRESENTATION.
Background
This subscription agreement is by and between Nettl of America LLC (“Licensor”, “Nettl”, “us” or “we”) and the subscriber (“Licensee” or “you”) detailed in the order confirmation or, where you have applied on-line, the email confirmation sent to you (together the “Order Confirmation”). It sets forth the terms and conditions of Licensee’s subscription to the Platform. As a condition of the Subscription, Licensee must accept this Agreement in its entirety. It is a fairly lengthy agreement and it contains important provisions that govern your rights and obligations. At our sole discretion we may modify the Agreement at any time and such changes will be effective immediately, you herby waive any right you may have to receive notice of such changes and you will be bound by such modifications and the Agreement will remain in full force and effect until terminated in accordance with termination provisions set forth below. If the Agreement is modified we will upload an amended Agreement to the web site located at www.nettl.com/us/system (or any alternative or replacement website, together the “Site”). At any particular time, the version of the Agreement that will govern your relationship with us and our rights and obligations with respect to the Platform will be that version of the Agreement appearing on the Site at the time you last accessed the Platform.
1 Definitions
In this Agreement the following expressions shall have the following meanings:
“Addendum”
Any document that on the face of it is expressed by the Licensor to be an addendum to this Agreement and which the Licensee (by virtue of the elements of the Platform that we have, at your request, made available to you) is subject to;
“Agreement”
means this Subscription Agreement and all Addendums to it;
“Authorised User”
Any individual who is employed or engaged under contract as part of the Licensee’s staff and in respect of whom the Licensor has set up a User Account;
“Client Templates”
Editable web-to-print templates prepared by the Licensee and hosted on the Platform and used by Customers in connection with Jobs;
“Customer”
Any person to whom the Licensee supplies products and/or services;
“Customer Information”
The Customer’s name, address, contact details and order details;
“End User Licence Agreement”
The Licensor’s (or its Affiliate’s) written terms and conditions which govern the use of Orderlink Microsites and w3shops by Customers;
“Group”
Any company at any time during the term of this Agreement within the Licensor’s group of companies composed of the principal company, its holding company and subsidiary companies (where ‘holding company’ and ‘subsidiary company’ shall have the meaning as set out in section 1159 the Companies Act 2006);
“Initial Subscription Fees”
Those sums set out in the Order Confirmation under the heading Initial Subscription Fee;
“Job”
Each Customer order pertaining to the Licensee’s Workgroup Account identified by a Unique Job Number;
“Licensee Confidential Information”
Any information about the Licensee and its business divulged by the Licensee and/or received or obtained by the Licensor prior to or during the period of this Agreement which is either marked or expressed by us as confidential or which may be reasonably considered to be confidential;
“Licensee Content”
All data, graphics and information including Customer Information that the Licensee submits in connection with its use of the Platform or the Subscription;
“Licensor Confidential Information”
Any information about the Group, and/or any aspect of the Platform and/or any aspect of the Group’s business or business methods divulged by the Licensor and/or received or obtained by the Licensee prior to or during the period of this Agreement which is either marked or expressed by us as confidential or which may be reasonably considered to be confidential;
“Monthly Subscription Fees”
During the Initial term those sums set out in the Order Confirmation under the heading Monthly Subscription Fee and thereafter the then-current monthly subscription fee charged by the Licensor for the Subscription Plan;
“OrderLink Microsite”
Each order management account within the Platform made available under password to the Licensee’s Customers;
“Platform”
Such of the Licensor’s (or its Affiliate’s) proprietary software (including but not limited to Flyerlink, OrderLink Microsite and w3shop modules) hosted by or on behalf of the Licensor and parts of which are accessible using internet web browser-based technology;
“Principal Location”
The address given in the Order Confirmation for the First Principal Location and where applicable any additional locations set out in the Order Confirmation under the heading Special Terms and Conditions;
“SLA”
The Service Level Agreement set out in Schedule 2;
“Subscription”
The Subscription Plan relevant to this Agreement, and which the Licensee has elected to take, as set out in the Order Confirmation;
“Subscription Plans”
The various packages offered by the Licensor which determine the degree of access to the Platform, level of support and ancillary services that are available to the licensee, the Licensee acknowledging that differing, and not all, elements and functionality of the Platform are made available pursuant to various different Subscription Plans offered by the Licensor;
“Trade Name”
any trade names and logos symbols, emblems, insignia or indicia, belonging to the Licensor or any member of the Group whether or not registered or capable of registration;
“Unique Job Number”
The unique identification number generated by the Platform in respect of each Job;
“User Account”
The password and username supplied to Authorised Users to access the Workgroup Account;
“User Guide”
The written specification of the methods, processes, techniques, systems and schemes devised and compiled by the Licensor to be observed and implemented by the Licensee in using the Platform at any time hereafter made available to the Licensee;
“w3shop”
any publicly accessible website (which is determined by the Platform as being a separate w3shop in its own right) made available to the Licensee by the Licensor pursuant to an Addendum to this Agreement.
“Workgroup Account”
the order management account within the Platform made available to the Licensee’s Authorised Users;
“Working Day”
any day, except a Saturday or a Sunday, on which the clearing banks in the City of London are open for ordinary business.
1.1 The headings used in this Agreement are included for convenience only and are not to be used in construing or interpreting this Agreement.
1.2 Any reference in this Agreement to any statute, decree, law, statutory instrument or other regulation having the force of law shall be deemed to include any lawful modifications thereto or re-enactments thereof after the date of signature of this Agreement.
1.3 Any reference to the plural shall include the singular and any reference to the singular shall include the plural and any reference to one gender shall include all genders.
1.4 Any reference to a person shall include natural persons, partnerships and other such unincorporated bodies, corporate bodies and all other legal persons of whatever kind or however constituted.
1.5 Any reference to a clause or schedule shall (unless otherwise specifically provided) be a reference to a clause or schedule of this Agreement.
1.6 Any obligation of a party not to do an act or thing shall be deemed to include an obligation not to permit such act or thing to be done by another person under the control of the party that is subject to the obligation in question.
1.7 The words include, includes, including and included would be construed without limitation
2 Appointment, Commencement and Term
2.1 The Licensor hereby grants to the Licensee during the continuance of this Agreement and upon the terms and conditions herein contained the non exclusive, non sub licensable, non transferable right and licence to use (limited to the number of Authorised Users and predominantly from, and in respect of the material business activities of the Licensee operated from, the Principal Locations) those functions and features of the Platform as the Licensor considers are universally available to all other licensees that have taken the same Subscription;
2.2 This Agreement shall commence on the date of the Agreement and shall continue (subject to earlier termination as provided in this Agreement) in force for the period set out in the Order Confirmation under the heading Term and thereafter for successive periods equal to the Term (each a “Renewal Term”) unless and until terminated by either party giving to the other party not less than three months prior notice expiring on the last day of the Term or Renewal Term.
3 Fees and Payment
3.1 The Licensee agrees to pay the Initial Subscription Fees to the Licensor within 7 days of the Order Confirmation or if different on the payment date(s) set out in the Order Confirmation;
3.2 In respect of each calendar month during which for any part of that calendar month this Agreement is in force the Licensee agrees and undertakes to pay to the Licensor the Monthly Subscription Fee which the Licensor shall invoice monthly in advance;
3.3 Unless otherwise stated, all sums payable by the Licensee to the Licensor under or in connection with this Agreement shall be paid as set out in the Order Confirmation under the heading Payment Terms to the Licensor’s bank account by the method set out in the Order Confirmation under the heading Payment Method or such other method as the Licensor may reasonably require. Further all such sums shall be deemed exclusive of applicable sales tax which shall be payable in addition;
3.4 The Licensor reserves the right to allocate funds received from the Licensee against invoices pursuant to this Agreement or any other Addendum to this Agreement or any other agreement between the Licensee or any member of the Group, as the Licensor determines;
3.5 In addition to any other remedy the Licensor may have under this Agreement or at law, and not withstanding any other provision of this Agreement over which this clause shall take precedence, if at any time any sum which is due to be paid by the Licensee to the Licensor (pursuant to this Agreement or any other Addendum to this Agreement or any other agreement between the Licensee or any member of the Group) has not been paid on the due date for payment, or where any credit limit granted by the Licensor to the Licensee (which for the avoidance of doubt shall be set by the Licensor at its absolute discretion and which it shall be entitled to vary at any time having regard to the Licensee’s credit worthiness or other information at the Licensor’s disposal) has been exceeded the Licensor or any member of the Group shall have the right to:
3.5.1 deactivate or suspend all or any part of the Licensee’s User Accounts relating to any systems or services made available to the Licensee pursuant to this Agreement or any other Agreement between the Licensee and the Licensor or any member of the Group;
3.5.2 charge interest from day to day at an annual rate pursuant to the Late Payment of Commercial Debts (Interest) Act 1998 as well after as before judgement in respect thereof;
3.5.3 charge an administration fee of $50 per month from the date which is thirty (30) days from the due date for every month (or part month) that the sums concerned remain overdue;
3.6.4 notwithstanding any other provision of this Agreement, over which this clause shall take precedence, offer to supply goods in transit and services ordered directly to Customers (including after termination of the Agreement) without incurring any liability whatsoever to the Licensee.
4 Obligations of the Licensor
The Licensor agrees and undertakes as follows:
4.1 as regards to training and/or support which having regard to the Subscription the Licensee is entitled to receive (the training and support applicable to the Subscription being set out in Schedule 1, or if different as set out in the Order Confirmation under the heading Special Terms and Conditions), the Licensor shall only be obliged to provide such training and/or support if it has received the Licensee’s written request for the training and/or support in question and the Licensor, having regard to the period of time for which the Licensee has been party to this Agreement and the volume and or type of training and/or support requested, considers that it is reasonable for it to provide the training and/or support requested. Following the Licensor’s receipt of a reasonable request the Licensor will offer such training and/or support at such times and such places as, having regard to all of its licensees which require the training and/or support in question, the Licensor considers reasonable. The Licensor shall notify the Licensee of the training and/or support that the Licensor requires the Licensee to attend. If the Licensee fails to attend such training and/or support the Licensor shall have no further liability whatsoever to provide, or offer to provide, the element of training and/or support of which the Licensee was notified;
4.2 to use its commercially reasonable endeavours to meet the service levels set out in Schedule 2. In the event that, in breach of the foregoing, such service levels are not achieved then, in respect of the calendar month in which the failure to achieve the service levels occurred, there shall be a reduction in the Monthly Subscription Fees payment according to the table set out in Schedule 2. The Licensee acknowledges and agrees that, notwithstanding any other provision of this agreement (including the provisions of clause 10.3) and notwithstanding any right or remedy that the Licensee may have under this Agreement or at Law, the reduction in Monthly Subscription Fees, as set out in this clause, shall be the only remedy available to the Licensee in respect of any breaches of this clause by the Licensor and accordingly the Licensee shall not be entitled to any other compensation, damages or similar in respect of a failure to achieve the service levels.
5 Obligations of the Licensee
The Licensee agrees:
5.1 that the Licensee is not granted any right or licence to use, in any way whether in writing or orally, any Trade Name and accordingly the Licensee is strictly prohibited from using and/or referring to any Trade Name in its dealings with its Customers or otherwise in connection with its business;
5.2 to comply with all reasonable technical advice and instructions given by the Licensor with regard to the use of the Platform and to use the Platform strictly in accordance with the User Guide and such advice, know how and guidance made available to it by the Licensor. The Licensee acknowledges and agrees that the Licensor shall have no liability to the Licensee in respect of any matter complained of by the Licensee where the matter in question would have been avoided if the Licensee had adhered to the User Guide or advice, know how and guidance made available to it by the Licensor;
5.3 to comply with all laws, statutes, byelaws, regulations and requirements of any government or other competent authority relating to the Licensee and/or the use of the Platform (including the Data Protection Act 1998 and any other data protection or similar legislation that concerns the collection and/or provision of personal data including the Customer Informationthat will be stored in the Licensor’s and/or Group’s database and passed on to and used by the Licensor and/or Group for such purposes as is necessary for the Licensor to fulfil its obligations and exercise its rights pursuant to this Agreement);
5.4 not to, or purport to, sell, assign, transfer, convey, charge or sublicense its rights under this Agreement, nor anything made available to it by the Licensor pursuant to this Agreement, including but not limited to providing, leasing, lending, subcontracting or using for timesharing or service bureau purposes any such rights.
6 Platform, OrderLink Microsites, w3shops and Licensee Content
6.1 The Licensee acknowledges and agrees that the Licensor may in its absolute discretion, at any time and without notice, make any additions, amendments, modifications and/or changes to any aspect of the Platform as it sees fit and the Licensee shall have no right whatsoever to use and/or require the Licensor to allow it to use and/or supply the Platform that was in operation prior to the addition, amendment, modification and /or change in question;
6.2 To the extent that the Licensee’s use of the Platform enhances and/or improves Customer experience and/or use and/or enjoyment of and/or interaction with any aspect of the Platform and in respect of any idea or invention that the Licensee makes in respect of the Platform the Licensee grants an irrevocable, payment and royalty free licence without limit in time (together with an unrestricted right to sub-license) to the Licensor to replicate such use and exploit such idea or invention;
6.3 The Licensee acknowledges and agrees that all OrderLink Microsites and w3shops are made available by the Licensor to Customers subject to the End User Licence Agreement which the Licensor shall be entitled to make accessible from such OrderLink Microsites, w3shops or in any other manner to the Customer;
6.4 The Licensee acknowledges and agrees that the number of active OrderLink Microsites that are available to it is limited to the aggregate number set out in the Order Confirmation (the Licensor may make additional OrderLink Microsites available at the rates it offers from time to time);
6.5 Upon the termination or expiration of this Agreement for any reason, the Licensor shall cease to make all Orderlink Microsites or w3shops available to the Customers and shall deactivate the Customers access rights, usernames or passwords and shall not exploit for financial gain any Licensee Content, Customer Information or Client Templates created by the Licensee and associated with such Customers. Notwithstanding the foregoing whilst the Licensee shall retain its copyright in any design created by it for any Client Template nothing in this Agreement shall give the Licensee any other rights in any Client Templates;
6.6 The Licensee retains all right, title and interest in and to the Licensee Content and during the continuance of this Agreement grants to the Licensor a non-exclusive, non-transferable, worldwide, fully-paid license to use, copy, and modify the Licensee Content solely to the extent necessary and for the sole purposes of complying with its obligations and exercising its rights under this Agreement.
7 Workgroup Account, User Accounts and Authorised Users
7.1 The Licensee acknowledges and agrees that it is responsible for ensuring its Authorised Users keep all User Accounts confidential and do not allow unauthorised persons to access User Accounts. Furthermore the Licensee acknowledges and agrees that it shall be liable for all activities that occur under all User Accounts and/or in connection with the Licensee’s Workgroup Account and in this regard, shall indemnify and keep the Licensor and any member of the Group, its directors, officers, employees indemnified against all claims, demands, actions, costs, expenses (including, but not limited, to legal costs and disbursements), losses, damages and any other liability whatsoever arising from or suffered or incurred by reason of any use or alleged use of the User Accounts or Workgroup Account by any person whether or not unauthorised by the Licensee. Furthermore the Licensee agrees to immediately notify the Licensor of any unauthorised use of any User Accounts or Workgroup Account. The Licensee accepts and agrees that the Licensor shall not be liable for any loss or damage arising from the Licensee’s failure to adhere to the forgoing.
8 Termination
8.1 The Licensor may terminate this Agreement forthwith by giving notice in writing to the Licensee on the happening of any of the following events:
8.1.1 the Licensee commits an irremediable material breach of its obligations under this Agreement;
8.1.2 the Licensee commits a remediable breach (other than a failure to pay money which is addressed in clause 8.1.3 below) which breach is not remedied to the satisfaction of the Licensor within 30 days of the date of service of a written notice outlining the breach and requiring its remedy;
8.1.3 if the Licensee shall at any time fail to pay any amounts due and payable to the Licensor hereunder within 7 days of the Licensor’s written notice demanding payment of such sum;
8.2 The Licensor may terminate this Agreement forthwith by notice to the Licensee (which notice may be given by any means, including orally over the telephone, that the Licensor considers the most expedient) in any of the following events, the Licensee is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, ceases or threatens to cease carrying on in business or suffers any event or takes any action which could reasonably be considered to indicate that the Licensee is insolvent or at risk of becoming so in the relatively near future including insolvent liquidation, a declaration of bankruptcy, the presentation of a bankruptcy or winding up petition which is not withdrawn, dismissed or discharged within 30 days of its presentation or the appointment of, or proposed appointment of, an administrator, receiver or similar over any of the licensee’s assets or undertaking;
8.3 Without prejudice to any other right or remedy available to the Licensor and / or any member of the Group (whether pursuant to this Agreement (including the right to terminate this Agreement), at law, or otherwise) in circumstances where the Licensor has the right to terminate this Agreement pursuant to clause 8.1 and / or 8.2 the Licensor or any member of the Group may deactivate or suspend all or any part of the Licensee’s User Accounts relating to any systems or services made available to the Licensee pursuant to this Agreement or any other agreement between the Licensee and the Licensor or any member of the Group;
8.4 the Licensee may terminate this Agreement forthwith by giving notice in writing to the Licensor in the event that the Licensor commits a material breach which breach is not remedied within 30 days of the date of service of a written notice outlining the breach and requiring its remedy.
9 Consequences of termination
9.1 Upon the termination or expiration of this Agreement for any reason, the Licensee shall:
9.1.1 immediately pay to the Licensor the full amount of all monies then or thereafter due together with any interest thereon up until the date of payment;
9.1.2 return to the Licensor or otherwise dispose of or destroy as the Licensor shall direct any Licensor Confidential Information or other property of the Licensor;
9.2 The expiration or termination of this Agreement shall be without prejudice to the accrued rights of the parties and any provision of this Agreement which expressly or by implication relates to or governs the acts of the parties subsequent to such expiry or termination shall remain in full force and effect and shall be enforceable notwithstanding such expiry or termination.
10 Warranties and Liability
10.1 Each party warrants that it has the right to enter into this Agreement;
10.2 The Licensor shall not in any event be liable for any, indirect, special or consequential loss, any loss of profits, any loss of bargain, any loss of opportunity or loss or corruption of data in connection with or arising howsoever out of or in connection with this Agreement and/or the Licensor’s negligence;
10.3 Without prejudice to the above provision of this clause 10 the Licensor’s entire liability in respect of any claim under or arising out of this Agreement (“a Claim”) shall be limited to the greater of, $25,000 less any amounts paid by the Licensor to and/or on behalf of the Licensee in respect of any other Claim and the amount that the Licensor can successfully recover in respect of the Claim in question under any policy of insurance it has in place;
10.4 Except in respect of liability for death or personal injury no action, regardless of form, arising out of the transaction under this agreement may be brought by the Licensee more than two years after the cause of action has accrued;
10.5 Subject always to clause 10.6 the Licensee agrees to notify the Licensor in writing of any breach by the Licensor of any of the terms covenants or conditions of this Agreement as soon as having become aware of such breach of the Licensor and in any event within 28 days of such breach of the Licensor failing which the Licensor shall thereafter have no liability in respect of such breach;
10.6 Neither party excludes or limits any liability (including liability for death or personal injury arising from a Party’s negligence and liability for fraudulent misrepresentation) that cannot, under English Law, be excluded or limited.
11 Confidentiality
11.1 The Licensee shall maintain secret and confidential all Licensor Confidential Information. The Licensee shall respect the Licensor’s proprietary rights in the Licensor Confidential Information and the Licensee shall use it exclusively for the purpose of this Agreement;
11.2 The Licensee shall procure that all members of its staff who have access to any Licensor Confidential Information shall, before being given access (whether as a result of the Licensee’s direct disclosure or otherwise) to such Licensor Confidential Information are made aware of and made subject to these obligations;
11.3 The Licensor shall only use and/or disclose the Licensee Confidential Information for the purposes of performing its obligations or exercising its rights under this Agreement or for the purposes of allowing another member of the Group to perform all or any part of the Licensor’s obligations or exercising its rights under this Agreement;
11.4 The obligations imposed by this clause 11 shall survive the variation, renewal, expiry or termination of this Agreement.
12 Acknowledgments by the Licensee
12.1 The Licensee hereby acknowledges the exclusive rights of the Licensor to own the Platform and all matters comprised therein and itself to utilise the same and to grant to any other person a licence to use the Platform and to amend and modify the same by variation, addition, renewal, substitution or howsoever otherwise. The Licensor retains all right, title and interest in and to the Platform and related intellectual property and nothing in this Agreement conveys any ownership interest to the Licensee;
12.2 The Licensee acknowledges and agrees that certain Customer facing tools and functionality within the Platform are configured on the understanding that the Licensee is registered for sales tax and that the Licensor shall have no obligation to modify the Platform to function differently in the event that the Licensee is not registered sales tax;
12.3 The Licensor shall make all reasonable efforts to keep the Platform secure notwithstanding this the Licensee acknowledges and agrees that the internet is not a fully secure medium and due to the nature of the internet it is possible that viruses, worms, trojan horses or other similar harmful or deleterious programming routines (‘Bugs’) may be inadvertently communicated by or downloaded from the Platform and that the Licensor shall not be responsible or liable for any Bugs that may infect or otherwise impact the Licensee’s use of its computer equipment or other property by virtue of its access to, use of, or browsing of the Platform or downloading of any content from the Platform, the Licensor recommends that the Licensee installs appropriate anti-virus or other protective software;
12.4 The Licensee acknowledges and agrees that the Licensor provides the Platform as-is and with all faults Accordingly, the Licensee agrees that, to the full extent permitted by law, all other warranties and representations, whether oral or in writing and whether implied by statute, common law or otherwise relating to the Platform (including but not limited to performance, security, non infringement of third party rights, integration, merchantability, satisfactory quality or fitness for a particular purpose) and which the Licensee would otherwise have the benefit of are hereby excluded;
12.5 The Licensee acknowledges and agrees that the Licensor makes the Platform available through the internet to the extent commercially reasonable, and subject to outages, communication and data flow failures, interruptions and delays inherent in internet communications. The Licensee acknowledges and agrees that the Licensor does not warrant that access to the Platform will be uninterrupted or error free and acknowledges that problems with the internet, including equipment, software and network failures, impairments or congestion, or the configuration of the Licensee’s computer systems, may prevent, interrupt or delay the Licensee’s access to Platform and that the Licensor is not liable for any delays, interruptions, suspensions or unavailability of the Platform attributable to problems with the internet or the configuration of the Licensee’s computer systems. The Licensee’s acknowledges that access to the Platform requires the use of services supplied by the Licensor’s (or its Affiliate’s) internet service providers and is made available subject to the relevant third party’s acceptable use policies which the Licensee agrees to be bound by and to adhere to. Notwithstanding anything to the contrary in this Agreement, access to any mobile friendly version of Platform accessed by mobile devices may be terminated or suspended at any time;
12.6 The Licensee acknowledges and agrees that the Platform may include products, services, software and content supplied by, and hypertext links to websites owned, operated, controlled and/or provided by, third parties (“Third Party Content”). The Licensee’s use of any Third Party Content may be subject to the relevant third party’s terms and conditions and the Licensee agrees to be bound by any such terms and conditions made aware to it by the Licensor. The Licensee further acknowledges and agrees that the Licensor gives no promises about the quality, security, accuracy or any other aspect of any Third Party Content, and excludes any and all liability arising from the Licensee’s use of it and that the presence of a third party’s advertising or other content on the Platform does not in any way give rise to, or otherwise imply, a recommendation, endorsement or other representation on the Licensor’s part in respect of the third party’s comments, products or services;
12.7 The Licensee acknowledges that the Platform contains Third Party Content which may cease to be available to the Licensor (including for example but not limited to Adobe Inc’s InDesign Server software) and agrees that the licensor shall be entitled, without incurring any liability whatsoever to the Licensee, to withdraw the availability of any part of the Platform that relies on such Third Party Content;
12.8 The Licensee acknowledges and agrees that it is the Licensee’s responsibility to obtain and maintain at its cost all necessary hardware and software required to access and use the Platform and that the Licensor shall have no obligation to the Licensee in this respect;
12.9 The Licensee acknowledges and agrees that it is a condition of this Agreement that the Licensee nor any officer, director or employee of the Licensee shall knowingly or having ought reasonably to have known give to the Licensor any false or misleading information or makes any misrepresentation howsoever in connection with this Agreement;
12.10 For the avoidance of any doubt the Licensee acknowledges and agrees that, save as expressly agreed with the Licensor in writing, no rights in the Licensor’s intellectual property (being any copyright, design, patent, trademark, trade name or other so called intellectual property right whatsoever (whether registered or unregistered and whether existing now or at any time in the future)), is granted to the Licensee by this agreement. Furthermore the Licensee acknowledges and agrees that the Licensor’s intellectual property, the goodwill and all other rights in and associated with the Platform (including any rights in and/or to any innovations and/or additions to the Platform made by the Licensee and which the Licensor has elected to incorporate into the Platform) and any other property (including any intellectual property rights, business methods, systems and know-how of the Licensor and/or any member of the Group) vest absolutely with the Licensor and that it is the intention of the parties that all such rights and property will at all times and for all purposes remain vested with the Licensor and in the event that any such rights or property at any time accrue to the Licensee by operation of law or otherwise the Licensee will at the Licensor’s request immediately on demand do all such acts and things and execute all such documents as the Licensor shall deem necessary to vest such rights and/or property absolutely with the Licensor;
12.11 The Licensee acknowledges and agrees that it shall not (and may not allow any third party to):
12.11.1 decompile, mirror, translate, disassemble or otherwise reverse engineer any part of the Platform, source code, algorithms, or underlying ideas of the Platform; or
12.11.2 provide, lease, lend, subcontract, sublicense, re-publish or use for timesharing, service bureau or hosting purposes any or all of the Platform; or
12.11.3 reproduce, modify, copy, distribute, publish, display or create derivative works of any or all of the Platform;
12.11.4 alter, remove, or obscure any copyright, trademark or other proprietary notices or confidentiality legends on or in the Platform.
13 No partnership or agency
13.1 The Licensee shall not pledge the credit of the Licensor nor represent itself as being the Licensor nor an agent, partner, employee or representative of the Licensor and shall not hold itself out as such nor as having any power or authority to incur any obligation of any nature express or implied on behalf of the Licensor and nothing in this Agreement shall operate so to constitute the Licensee an agent, partner, employee or representative of the Licensor.
14 Indemnity by Licensee
14.1 The Licensee hereby agrees and undertakes fully and effectively to indemnify and keep indemnified the Licensor and any member of the Group as well after as before the expiry or termination of this Agreement for and against all damages, loss, claims, demands, expenses (including legal and professional expenses), costs and any liabilities whatsoever which the Licensor and/or any member of the Group may at any time incur as a result of any breach by the Licensee of any provisions of this Agreement and/or the Licensee’s use of the Platform and/or graphic files, data or any other information supplied by the Licensee to the Licensor and/or the Licensee’s negligence.
15 General
15.1 The Licensor may assign, transfer, sub-contract or otherwise deal with any of its rights, benefits or obligations under this Agreement and this Agreement shall inure to the benefit of the successors and assigns of the Licensor and in this regard the Licensee shall do all such acts and things and execute all such documents as the Licensor shall require;
15.2 All rights and licences not specifically and expressly granted to and conferred upon the Licensee by this Agreement are for all purposes reserved to the Licensor;
15.3 Each of the restrictions and provisions contained in this Agreement and in each clause and sub clause hereof shall be construed as independent of every other such restriction and provision to the effect that if any provision of this Agreement or the application of any provision to any person, firm or company or to any circumstances shall be determined to be invalid and unenforceable then save as provided in clause 15.4 below such determination shall not affect any other provision of the Agreement or the application of such provision to any person, firm, company or circumstance all of which other provisions shall remain in full force and effect;
15.4 In the event that any provision of this Agreement shall be held to be invalid or unenforceable by a court of law or other competent authority in a way which in the sole opinion of the Licensor materially adversely affects, the right of the Licensor to receive payment or other remuneration or the terms on which the Licensor supplies goods or services to the Licensee then and in any such case the Licensor may without liability terminate this Agreement by notice in writing to the Licensee to that effect and in such circumstances the provisions of clause 9 above will apply;
15.5 The Licensor shall not be liable for any non performance of any of its obligations under this agreement to the extent that such non performance arises from circumstances beyond the reasonable control of the Licensor;
15.6 No failure of the Licensor to exercise any power given to it hereunder or to insist upon strict compliance by the Licensee or any Guarantor with any obligation or condition hereof and no custom or practice of the parties at variance with the terms hereof shall constitute a waiver of any of the Licensor’s rights hereunder;
15.7 No waiver by the Licensor of any particular default by the Licensee shall affect or impair the Licensor’s rights in respect of any subsequent default of any kind by the Licensee, nor shall any delay or omission of the Licensor to exercise any rights arising from any default affect or impair the Licensor’s rights in respect of the said default or any other default of the Licensee hereunder. Subsequent acceptance by the Licensor of any payments by the Licensee shall not be deemed a waiver of any preceding breach by the Licensee of any of the terms covenants or conditions of this Agreement. Any full or partial exercise of any remedy available to the Licensor under this Agreement shall be without prejudice to any other right or remedy available under this Agreement, at law or otherwise, to the Licensor all of which such remedies shall remain fully exercisable;
15.8 Unless otherwise specifically provided no notice given under this Agreement shall be effective unless it is in writing, addressed to the recipient at its address contained in this Agreement (or such other address as shall have been notified from time to time to the sender). A notice shall be deemed to have been properly given if delivered by hand during normal business hours, upon delivery or if sent by recorded delivery post, on the first Working Day after posting;
15.9 This Agreement (which for the avoidance of all doubt includes any Addendums to it) constitutes the entire agreement between the parties and supersedes all prior agreements in connection with the subject matter hereof. No director, employee or agent of the Licensor is authorised to make any representation or warranty not contained in this Agreement and the Licensee acknowledges that he has not relied on any such oral or written representations;
15.10 The parties agree that a person who is not a party to this agreement shall have no rights under the Contract (Rights of Third Parties) Act 1999 to rely upon or enforce any term of this Agreement;
15.11 This Agreement and all rights and obligations of the parties hereto shall be governed and construed in accordance with the Law of England and the parties hereto hereby submit to the exclusive jurisdiction of the English Courts.
Schedule 1
Training & Support
Training and Support is provided according to the table below;
| All subscriptions | |
| Documentation | On-line and access to a message board |
| Access to Webinars | Unlimited access to public group webinars hosted by the Licensor (i.e. may also be accessed by other licensors of the Platform) |
The Licensor may make additional on-site support and classroom classes available at the rates it offers from time to time.
Schedule 2
Service Level Agreement
The Licensor agrees to meet the following service levels;
- Availability of the Platform shall exceed 98%, excluding planned downtime for maintenance events. The Licensor will use all reasonable endeavours not to have planned downtime between the hours of 9am ‘ 5pm (local time for the Licensee) on any given Working Day (‘the Key Hours’), in the event that planned downtime is required during such hours the Licensor will give notice of such planned down time (by email, message board post, newsfeed or other such method as the Licensor shall decide), the Licensor shall endeavour to give as much notice as possible, planned downtime, outside of the Key Hours shall not exceed 8 hours;
- The Platform uses industry-standard system security, including without limitation firewall and intrusion detection, and 128 bit encryption via HTTPS/SSL protocols;
- The Platform uses industry-standard antivirus software and procedures;
- The Licensor performs weekly full and daily incremental backups of the Platform;
Platform availability
| excluding planned downtime | Reduction in relevant month’s Monthly Subscription Fees |
| Less than 98% and greater than 97% | 25% |
| Less than 97% and greater than 96% | 50% |
| Less than 96% and greater than 95% | 75% |
| Less than 95% | 100% |
ADDENDUM (Nettl websites)
1 Definitions
In this Addendum the following expressions shall have the following meanings:
“Agreement”
means the Subscription Agreement and all Addendums to it;
“Nettl Operating Manual”
the written specification of the methods, processes, techniques, systems and schemes devised and compiled by the Licensor to be observed and implemented by the Licensee in operating the Nettl Business and any amendment or variation thereof at any time hereafter published by the Licensor on its intranet;
“Nettl System”
the business methods and formats, know-how, confidential information and all other intellectual property developed or owned by the Licensor and required to provide Nettl Websites to Customers;
“Nettl Web Applications”
the Licensor’s proprietary Brambl website design tool together third party website development software, shopping baskets, payment gateways, booking applications and other such systems and apps hosted by or on behalf of the Licensor for use in the creation of websites;
“Nettl Website”
each website deployed utilising any part of the Nettl Web Applications;
“Tier 1 website”
each Nettl Website created by the Licensee utilising the Licensor’s proprietary Brambl website design tool;
“Tier 2 website”
each Nettl Website created by the Licensee utilising the WordPress third party software hosted by or on behalf of the Licensor for use in the creation of websites;
“Tier 3 website”
each Nettl Website created by the Licensee utilising the self install facility made available on the Platform by the Licensor, or the Woo Commerce or Prestashop third party software hosted by or on behalf of the Licensor, for use in the creation of websites;
“Website Hosting Fee”
the price charged by the Licensor, as detailed on the Platform, or as notified in writing by the Licensor to the Licensee from time to time, provided always that the Licensor will give the Licensee no less than 40 Working Days notice of any price changes, for each month’s hosting relevant to the type of Nettl Website deployed (being determined by the definitions of Tier 1, Tier 2 and Tier 3 herein) and the disk space, processing power, memory and bandwidth utilised;
“Website Deployment Fee”
the sum relevant to the type of Nettl Website deployed (being determined by the definitions of Tier 1, Tier 2 and Tier 3 herein) and set out in the Order Confirmation under the heading Deployment Fee;
“Good Industry Practice”
having regard to the sums payable to the Licensor in respect of Brambl Web Applications that degree of skill, diligence, prudence and foresight as would reasonably be expected from a contractor engaged in the provision of services similar to the Brambl Web Applications.
2 Obligations of the Licensor
2.1 The Licensor agrees and undertakes during the continuance of this Agreement:
2.1.1 to make available, applying Good Industry Practice, the range of Nettl Web Applications set out on the Platform. Notwithstanding the foregoing the Licensee acknowledges and agrees that whilst some of the Nettl Web Applications utilise the Licensor’s proprietary technologies others are open source software and third party applications which may not continue to be available to the Licensor and that the Licensor is under no obligation to make any particular Nettl Web Application available and may withdraw any Nettl Web Application from the Platform at the Licensor’s sole discretion, at any time without notice and without incurring any liability whatsoever to the Licensee;
2.1.2 to provide the Licensee with such advice, knowhow and guidance as the Licensee may reasonably require relating to methods of operation to be employed in connection with the Nettl System and to provide reasonable facilities for consultation with the Licensee in connection with any problems relating to the Nettl System from time to time arising with a view to assisting and enabling the Licensee to operate and maintain the Nettl System and for the avoidance of doubt it shall be at the Licensor’s discretion whether or not to charge the Licensee for such assistance;
2.1.3 to make available to the Licensee and its employees, such further training as may from time to time appear necessary in the light of improvements or developments, the Licensee bearing the cost of any travel and subsistence and the salaries of itself and of any of its employees involved in such further training, for the avoidance of doubt it shall be at the Licensor’s discretion whether or not to charge the Licensee for such training.
3 Obligations of the Licensee
3.1 The Licensee agrees and undertakes during the continuance of this Agreement:
3.1.1 to conform in all respects and at all times with the Nettl System as modified from time to time and not do or permit to be done anything which is additional to or not in accordance with the Nettl System without the prior consent in writing of the Licensor;
3.1.2 not to do or omit to do any act or thing which may in the reasonable opinion of the Licensor bring the Nettl Business, Nettl System into disrepute or which may in the reasonable opinion of the Licensor damage or conflict with the Licensor’s interests or those of other Nettl licensees;
3.1.3 to comply with all advice and instructions reasonably given by the Licensor with regard to the operation of the Nettl System, the Licensee acknowledging that on-line and web based operations change quickly and that it must use its best endeavours to implement improvements, additions or modifications of or to the Nettl System as the Licensor directs including undertaking appropriate training ;
3.1.4 to permit the Licensor and its representatives upon reasonable notice and at reasonable hours to enter upon the Premises for the purposes of ascertaining whether the provisions of this Agreement are being complied with.
4 Payment for Web Services
4.1 The Licensee agrees and undertakes to pay to the Licensor the Website Deployment Fee in respect of each Nettl Website which the Licensor shall invoice weekly in arrears;
4.2 In respect of each calendar month during which for any part of that calendar month this Agreement is in force the Licensee agrees and undertakes to pay to the Licensor the Website Hosting Fee in respect of each website published by the Licensee using any part of the Nettl Web Applications which the Licensor shall invoice monthly in advance.
5 Use of Nettl Web Applications
5.1 In addition to any other provision of the Subscription Agreement regarding use of the Platform the Licensee agrees and undertakes that it shall comply, and cause users to comply, with such policies (including acceptable use policies) applicable to Nettl Websites (which the Licensor may notify the Licensee of from time to time) and in respect of each Nettl Website it will:
5.1.1 not do any act which the Licensor reasonably requests the Licensee not to do;
5.1.2 do all such things as are necessary to prevent the use of Nettl Websites for spamming or sending of other unsolicited email, mail bombing, system flooding, mass downloading, distribution of Bugs or similar;
5.1.3 not utilise Nettl Websites for chat pages, contests or any other high volume activities, or in any way which may result in excessive load on the Licensor’s equipment;
5.1.4 not permit anything to appear on Nettl Websites that is or could be considered defamatory, politically extreme, immoral, obscene, blasphemous, or which could otherwise offend public decency;
5.2 The Licensee acknowledges and agrees that if the Licensor reasonably considers that a Nettl Website is being used for any purpose in breach of any of the above provisions or otherwise, in the common sense of the word, improper, then it may without prior notice suspend the Nettl Website in question without incurring any liability whatsoever to the Licensee;
5.3 The Licensee acknowledges and agrees that it is not envisaged that any Nettl Websites will exceed such bandwidth as the Licensor acting reasonably (having regard to the fact that it is envisaged that only low volumes of traffic will be driven through the Nettl Websites) considers appropriate, to the extent that such bandwidth is materially exceeded and/or is regularly exceeded the Licensor may charge the Licensee for each gigabyte of data (in and out) at a rate equivalent to the per gigabyte data charge of Licensor’s internet service provider and / or apply caps or throttling to bandwidth supplied or, without prior notice suspend or otherwise take down the Nettl Website in question, without incurring any liability whatsoever to the Licensee.
6 Defects
6.1 The Licensor’s entire liability (and the Licensee’s only remedies) in respect of any defective Nettl Website shall be to refund the greater of the sums paid by the Licensee to the Licensor or the sums paid by the Customer to the Licensee in respect of the Nettl Website. Further the Licensor shall only have any liability in respect of a defective Nettl Website if:-
6.1.1 the defect is proved to the Licensor’s reasonable satisfaction to be due to bad workmanship or materials or to negligence on the part of the Licensor;
6.1.2 the Licensee complies with the Licensor’s process for raising complaints regarding defective Nettl Websites and the Licensor is advised of the alleged defect as soon as possible and in any event within 7 days of the Licensee becoming aware of such alleged defect.
7 Acknowledgements by Licensee
7.1 The Licensee acknowledges that whilst the Licensor shall make all reasonable efforts to ensure the Nettl Web Applications are made available according to Good Industry Practice the Licensor gives no warranties, conditions, guarantees or representations as to the Nettl Web Applications merchantability or fitness for a particular purpose and all other warranties, conditions, guarantees or representations, whether express or implied, oral or in writing, except as expressly stated in this Addendum are hereby excluded;
7.2 The Licensee acknowledges and agrees that notwithstanding any other provision of the Agreement the total aggregate liability of the Licensor in respect of any and all causes of action arising out of or in connection with any Nettl Website (whether for breach of contract, strict liability, tort (including, without limitation, negligence), misrepresentation or otherwise) shall be limited to the fees paid by the Licensee in respect of the Nettl Website concerned;
7.3 The Licensee acknowledges and agrees that the Nettl Web Applications provide a framework within the Platform that enables the Licensee to develop Nettl Websites by selecting and populating functions within the Platform and that beyond those made universally available to all other licensees as standard the Licensor may offer add-on services and functions in respect of which there may be Additional Charges and terms and conditions. For the purposes of this clause 12.3 Additional Charges means those charges payable by the Licensee for add-on services and functions not included as standard in (standard functions and services being those that are universally available at no extra cost to all other licensees of the Nettl System). Details of the relevant charges that will be payable in respect of the non standard functionality / services can be found on the Platform and the Licensor shall invoice any such charges weekly in arrears and the licensor shall be entitled to vary the additional charges at any time and shall amend the relevant page of the Platform to reflect the change in question. Once the Platform has been so amended the variation in question shall be deemed effective. For the avoidance of any doubt, once the Platform has been so amended, the Licensee shall be deemed to have had notice of the change in question;
7.4 The Licensee hereby acknowledges the exclusive rights of the Licensor to own the Nettl System and all matters comprised therein and itself to utilise the same and to grant to any other person a licence to use the Nettl System and to amend and modify the same by variation, addition, renewal, substitution or howsoever otherwise7;
7.5 The Licensee acknowledges that he has been advised by the Licensor to discuss his intention to enter into this Agreement with other Nettl licensees and to seek other appropriate independent advice, and that the decision to enter into this Agreement has been taken solely on the basis of the personal judgement and experience of the Licensee having taken such independent advice. Accordingly, the Licensee acknowledges that no representation, warranty, inducement or promise express or implied had been made by the Licensor or relied upon by the Licensee in entering into this Agreement save such as may have been notified by the Licensee to the Licensor in writing and are annexed to and incorporated in this Agreement;
7.6 The Licensee acknowledges and agrees that it shall make no statement, representation or claim and shall give no warranty to any person in respect of the Nettl System or Nettl Websites;
7.7 It is hereby expressly agreed between the parties that each of the restrictions contained in this Agreement is reasonably necessary for the protection of the Licensor and its other Nettl licensees and of the Nettl System and does not unreasonably interfere with the freedom of action of the Licensee who enters into this Agreement with the benefit of legal advice in full knowledge of all the provisions hereof and the Licensee acknowledges that all such provisions are fair and reasonable;
7.8 The Licensee acknowledges and agrees that as regards to this Addendum any words and phrases which have a customarily accepted meaning within the IT industry shall have that meaning unless stated otherwise;
7.9 This Addendum shall commence on the date that the Nettl Web Applications are enabled by the Licensor and shall continue until the expiry or termination of the Subscription Agreement.
ADDENDUM (w3crossmedia)
1 Definitions
In this Addendum the following expressions shall have the following meanings:
“Fastpaths”
on-line documentation detailing processes and procedures for the implementation of Web Applications;
“Good Industry Practice”
having regard to the sums payable to the Licensor in respect of Web Applications and Web Services that degree of skill, diligence, prudence and foresight as would reasonably be expected from a contractor engaged in the provision of services similar to the Web Services and Web Applications;
“w3project”
project management software hosted by or on behalf of the Licensor for the management of Web Services;
“Web Applications”
Websites, webshops, apps and other similar ecommerce technologies hosted by or on behalf of the Licensor;
“Web Services”
Professional services and other activity and tasks as agreed between the parties and set out on w3project related to the implementation of Web Applications;
“Web Service Fees”
the prices charged by the Licensor in respect of the Web Services.
2 Description of the w3crossmedia
2.1 w3p crossmedia is the function of the Platform that makes Web Applications hosted by the Licensor available to the Licensee to sell design and hosting services to Customers. In addition to Web Applications w3p crossmedia provides the Licensee with access to w3project, Fastpaths and Web Services to assist the License in the implementation of Web Applications for use by Customers.
3 Fees and Payment
3.1 The Licensee may, from time to time, request that the Licensor provides Web Services to it and, on each occasion the parties shall work together in good faith to agree the price and scope of the Web Services requested.
3.2 The Licensor agrees and undertakes to make available, applying Good Industry Practice, the range of Web Applications set out on the Platform. Notwithstanding the foregoing the Licensee acknowledges and agrees that whilst some of the Web Applications utilise the Licensor’s proprietary technologies others are open source software and third party applications which may not continue to be available to the Licensor and that the Licensor is under no obligation to make any particular Web Application available and may withdraw any Web Application from the Platform at the Licensor’s sole discretion, at any time without notice and without incurring any liability whatsoever to the Licensee.
4 Payment for Web Services
4.1 The Licensee agrees and undertakes to pay the Licensor for all orders of Web Services supplied by the Licensor on the payment dates and by such method as is set out in the Quotation under the heading Payment Method and Payment Terms.
5 Supply of Web Services
5.1 The Licensor will deliver Web Services to the Licensee as agreed between the parties and specified on w3project. Any times or dates given for the completion of the Web Services shall be estimated only and, whilst the Licensor will use its reasonable endeavours to meet such times or dates, time shall not be of the essence of the contract and the Licensor shall not be liable for any failure to deliver or complete the work or any part thereof on such time or date. For the avoidance of doubt the Licensor shall be entitled to cease providing Web Services at any stage where the Licensee is in breach of its payment obligations to the Licensor or the provisions of clause 6 below.
5.2 The Licensee acknowledges that certain Web Services may be undertaken by other licensees of the Licensor or other third parties and that it is the Licensee’s responsibility to agree appropriate payment terms and other terms and conditions with such third parties.
5.3 The Licensee acknowledges that whilst the Licensor shall make all reasonable efforts to ensure Web Services and Web Applications are made available according to Good Industry Practice the Licensor gives no warranties, conditions, guarantees or representations as to the Web Services and Web Applications merchantability or fitness for a particular purpose and all other warranties, conditions, guarantees or representations, whether express or implied, oral or in writing, except as expressly stated in this Addendum are hereby excluded.
6 Use of Web Applications
6.1 In addition to any other provision of the Subscription Agreement regarding use of the Platform the Licensee agrees and undertakes that it shall comply, and cause users to comply, with such policies (including acceptable use policies) applicable to the Web Applications (which the Licensor may notify the Licensee of from time to time) and in respect of each Web Application it will:
6.1.1 not do any act which the Licensor reasonably requests the Licensee not to do;
6.1.2 do all such things as are necessary to prevent the use of Web Applications for spamming or sending of other unsolicited email, mail bombing, system flooding, mass downloading, distribution of Bugs or similar;
6.1.3 not utilise Web Applications for chat pages, contests or any other high volume activities, or in any way which may result in excessive load on the Licensor’s equipment;
6.1.4 not permit anything to appear on Web Applications that is or could be considered defamatory, politically extreme, immoral, obscene, blasphemous, or which could otherwise offend public decency;
6.2 The Licensee acknowledges and agrees that if the Licensor reasonably considers that a Web Application is being used for any purpose in breach of any of the above provisions or otherwise, in the common sense of the word, improper, then it may without prior notice suspend the Web Application in question without incurring any liability whatsoever to the Licensee;
6.3 The Licensee acknowledges and agrees that it is not envisaged that any Web Application will exceed such bandwidth as the Licensor acting reasonably (having regard to the fact that it is envisaged that only low volumes of traffic will be driven through the Web Application) considers appropriate, to the extent that such bandwidth is materially exceeded and/or is regularly exceeded the Licensor may charge the Licensee for each gigabyte of data (in and out) at a rate equivalent to the per gigabyte data charge of Licensor’s internet service provider and / or apply caps or throttling to bandwidth supplied or, without prior notice suspend or otherwise take down the web Application in question, without incurring any liability whatsoever to the Licensee.
7 Defects
7.1 The Licensor’s entire liability (and the Licensee’s only remedies) in respect of any defective Web Service or Web Application supplied shall be to refund the greater of the sums paid by the Licensee to the Licensor or the sums paid by the Customer to the Licensee in respect of the Web Service or Web Application. Further the Licensor shall only have any liability in respect of a defective Web Service or Web Application if:-
7.1.1 the defect is proved to the Licensor’s reasonable satisfaction to be due to bad workmanship or materials or to negligence on the part of the Licensor;
7.1.2 the Licensee complies with the Licensor’s process for raising complaints regarding defective Web Services or Web Applications and the Licensor is advised of the alleged defect as soon as possible and in any event within 7 days of the Licensee becoming aware of such alleged defect.
8 Acknowledgements by Licensee
8.1 The Licensee acknowledges and agrees that any rights granted to it pursuant to this Addendum shall only be enjoyed and exercised in respect of the business it operates and/or carries out from the Premises and warrants and represents that it shall not utilise, directly or indirectly, any rights granted to it pursuant to this Addendum from any other premises;
8.2 The Licensee acknowledges and agrees that any typographical, clerical or other error or omission in any Project Proposal shall be subject to correction without any liability on the part of the Licensor;
8.3 The Licensee acknowledges and agrees that in the event that it wishes to cancel, suspend, delay or modify an order for Web Services as set out in a Project Proposal the Licensor shall be entitled to payment for the Web Services already carried out and other additional costs associated with the carrying out of the said Web Services prior to such cancelation, suspension, delay or modification and in that respect the Licensee shall indemnify the Licensor in full against all loss (including loss of profit), costs (including the cost of all labour and goods used), damages, charges and expenses incurred by the Licensor as a result;
8.4 The Licensee acknowledges and agrees that notwithstanding any other provision of the Subscription Agreement the total aggregate liability of the Licensor in respect of any and all causes of action arising out of or in connection with any Web Services (whether for breach of contract, strict liability, tort (including, without limitation, negligence), misrepresentation or otherwise) shall be limited to the fees paid by the Licensee in respect of the Web Services concerned;
8.5 The Licensee acknowledges and agrees that w3p crossmedia functionality is a framework within the Platform that enables the Licensee to develop Web Applications by selecting and populating functions within the Platform and that beyond those made universally available to all other licensees as standard the Licensor may offer add-on services and functions in respect of which there may be Additional Charges and terms and conditions. For the purposes of this clause 8.5 Additional Charges means those charges payable by the Licensee for add-on services and functions not included as standard in each Web Application (standard functions and services being those that are universally available at no extra cost to all other licensees that have taken the w3p crossmedia Addendum). Details of the relevant charges that will be payable in respect of the non standard functionality / services can be found on the Licensor’s website and the Licensor shall invoice any such charges weekly in arrears and the licensor shall be entitled to vary the additional charges at any time and shall amend the relevant page of the Licensor’s website to reflect the change in question. Once the Licensor’s website has been so amended the variation in question shall be deemed effective. For the avoidance of any doubt, once the Licensor’s website has been so amended, the Licensee shall be deemed to have had notice of the change in question;
8.6 The Licensee acknowledges and agrees that as regards to this Addendum any words and phrases which have a customarily accepted meaning within the IT industry shall have that meaning unless stated otherwise;
8.7 This Addendum shall commence on the date that the w3p crossmedia function of the Platform is enabled by the Licensor pursuant to the Licensee’s request and shall continue until the expiry or termination of the Subscription Agreement.
ADDENDUM (w3shop)
1 Definitions
In this Addendum the following expressions shall have the following meanings:
“Additional Charges”
means those charges payable by the Licensee for add-on services and functions not included as standard in each w3shop (standard functions and services being those that are universally available to all other licensees that have taken the w3shop Addendum). Details of the relevant charges that will be payable in respect of the non standard functionality / services can be found on the Licensor’s website and the Licensor shall invoice any such charges weekly in arrears and the licensor shall be entitled to vary the additional charges at any time and shall amend the relevant page of the Licensor’s website to reflect the change in question. Once the Licensor’s website has been so amended the variation in question shall be deemed effective. For the avoidance of any doubt, once the Licensor’s website has been so amended, the Licensee shall be deemed to have had notice of the change in question;
2 Description of the w3shop
2.1 The w3shop is a function of the Platform that makes publicly accessible websites available for the Licensee to list and display products and services for sale by it together with facilities for taking electronic payment (a shopping cart) from Customers.
3 Use of w3shop
4.1 In addition to any other provision of the Subscription Agreement regarding use of the Platform the Licensee agrees and undertakes that it shall at all times use each w3shop as a conventional website, shall at all times comply, and cause users to comply, with such policies (including acceptable use and privacy policies) applicable to the w3shop (which the Licensor may notify the Licensee of from time to time) and in respect of each w3shop it will not:
3.1.1 do any act which the Licensor reasonably requests the Licensee not to do;
3.1.2 involve itself in spamming or sending of other unsolicited email, mail bombing, system flooding, mass downloading, distribution of Bugs or similar;
3.1.3 use a w3shop for chat pages, contests or any other high volume activities, or in any way which may result in excessive load on the Licensor’s equipment;
3.1.4 permit anything to appear on the w3shop that is or could be considered defamatory, politically extreme, immoral, obscene, blasphemous, or which could otherwise offend public decency.
3.2 The Licensee acknowledges and agrees that if the Licensor reasonably considers that a w3shop is being used for any purpose other than as a conventional website or in breach of any of the above provisions or otherwise, in the common sense of the word, improper, then it may without prior notice take down the w3shop in question without incurring any liability whatsoever to the Licensee;
3.3 The Licensee acknowledges and agrees that it is not envisaged that any w3shop will exceed such bandwidth as the Licensor acting reasonably (having regard to the size of the customer and the intended purpose of the w3shop and the fact that it is envisaged that only low volumes of traffic will be driven through the w3shop) considers appropriate, to the extent that such bandwidth is materially exceeded and/or is regularly exceeded the Licensor may charge the Licensee for each gigabyte of data (in and out) at a rate equivalent to the per gigabyte data charge of Licensor’s internet service provider or, without prior notice suspend or otherwise take down the w3shop in question, without incurring any liability whatsoever to the Licensee.
4 Acknowledgments by the Licensee
4.1 The Licensee acknowledges and agrees that notwithstanding any other provision of the Subscription Agreement the total aggregate liability of the Licensor in respect of any and all causes of action arising out of or in connection with this Addendum (whether for breach of contract, strict liability, tort (including, without limitation, negligence), misrepresentation or otherwise) shall be limited to the aggregate w3shop fees paid by the Licensee in the twelve (12) months preceding the claim;
4.2 The Licensee acknowledges and agrees that w3shop functionality is a framework within the Platform that enables the Licensee to develop a website by selecting and populating functions within the Platform and that beyond those made universally available to all other licensees as standard the Licensor may offer add-on services and functions in respect of which there may be Additional Charges and terms and conditions;
4.3 The Licensee acknowledges and agrees that as regards the provision of any w3shop pursuant to this Addendum any words and phrases which have a customarily accepted meaning within the IT industry shall have that meaning unless stated otherwise;
4.4 This Addendum shall commence on the date that the w3shop function of the Platform is enabled by the Licensor pursuant to the Licensee’s request and shall continue until the expiry or termination of the Subscription Agreement. Notwithstanding the foregoing the Licensee may terminate this Addendum by giving to the Licensor not less than three months prior written notice expiring on or after the date that is one year from the commencement of this Addendum. Not withstanding the foregoing the Licensee may terminate this Addendum by giving to the Licensor written notice at any time during the Trial Period and in the event that such notice is served the Licensee will be refunded any w3shop Fees paid. For the avoidance of any doubt the termination of this or any other Addendum shall not affect the remainder of the Subscription Agreement which shall continue in force until its termination or expiry.
ADDENDUM (Marqetspace)
1 Definitions
In this Addendum the following expressions shall have the following meanings:
“Carrier”
either of the Licensor Carrier, Licensor Approved Carrier or the Licensee Carrier or any other third party employed by the Licensee to collect orders for Licensor Products from the Licensor and deliver them to the delivery address stated by the Licensee;
“Carrier Fee”
the administration fee payable by the Licensee to the Licensor of $5 per Job dispatched by the Licensor to any Carrier other than the Licensor Carrier or Licensor Approved Carrier;
“Commencement Date”
The date of the Subscription Agreement as set out in the Order Confirmation;
“Licensee Carrier”
any carrier other than the Licensor Carrier or the Licensor Approved Carrier;
“Licensor Approved Carrier”
such third party carrier whose services the Licensor has made available to order on the Platform and where such services are to be paid for by the Licensee who shall have an account with such carrier;
“Licensor Carrier”
such third party carrier, who the Licensor is an agent of, and whose services can be ordered through the Licensor via the Platform the charges for such services being detailed, either on the Platform, service charter or other such section of the User Guide;
“Licensor Print Specification”
in respect of any printed Licensor Product the standards that the Licensor must comply with and the tolerances that an order of printed Licensor Product must fall within, such standards being detailed in the User Guide (Print Claims section);
“Licensor Products”
those products and services detailed on the Platform and which the Licensor is able to supply to the Licensee;
“Marqetspace Products”
those products and services detailed on the Platform and which Marqetspace Vendors are able to supply to the Licensee for resale to the Licensee’s Customers;
“Marqetspace Vendor”
A third party whose products and services are available to the Licensee via the platform;
“Print Claim”
a claim that an order for Licensor Product in question does not fall within the tolerances set out in the Licensor Print Specification;
“Print Credit”
a credit given by the Licensor in respect of a successful Print Claim, the amount of such credit being calculated in accordance with the User Guide (Print Claims section);
“Print Files”
the portable document format (PDF) graphic files prepared by the Licensee in accordance with the Printing Specifications;
“Printing Specifications”
the standards and specifications as detailed in the User Guide to which the Licensee must prepare Print Files;
“Transfer Price”
the prices charged by the Licensor in respect of the Licensor Products as detailed on the Platform or as notified in writing by the Licensor to the Licensee from time to time.
2 Description of the W3P Marqetspace
2.1 The W3P Marqetspace is the function of the Platform that makes products and services available for purchase by the Licensee from, as the case may be, the Licensor or a Marqetspace Vendor.
3 Obligations of the Licensee
3.1 The Licensee agrees and undertakes at all times during the continuance of this Addendum to ensure that each Print File is prepared in accordance with the Printing Specifications and if a Print File is delivered to the Licensor and found not to been accordance with the Printing Specification then the Licensor shall be entitled to reject the Print File and order for Licensor Products and require the Licensee to resubmit a Print File that meets the Printing Specification before the Licensor will accept the order concerned.
4 Supply of Licensor Products
4.1 The Licensor shall sell Licensor Products to the Licensee pursuant to orders placed with the Licensor by the Licensee from time to time which the Licensor shall be entitled to accept or reject at its discretion. For the avoidance of doubt the Licensor may reject an order for Licensor Products at any stage of production or supply where the Licensee is in breach of its payment obligations to the Licensor or where in the Licensor’s sole but reasonable opinion the Job is of an unethical nature, unlawful, does not comply with any relevant codes of conduct (including, but not limited to, the Code of Advertising Practice), untruthful, defamatory, obscene, blasphemous, racist or otherwise offensive and in respect of any rejection pursuant to this clause the Licensor shall have no liability whatsoever to the Licensee. For the avoidance of doubt the rejection of any order for Licensor Products pursuant to this Addendum (including but not limited to clause 3.1 and this clause 4.1) may result in Print Files not going to print and orders for Licensor Products not reaching the Licensee’s Customers, the Licensee acknowledges and accepts this and that the Licensor accepts no liability and is not liable in this respect;
4.2 The Licensor’s entire liability (and the Licensee’s only remedies) in respect of any defective printed Licensor Product supplied shall be to issue a Print Credit and the Licensor’s entire liability in respect of any other defective Licensor Product supplied (and the Licensee’s only remedies in respect of any such defective product) shall be to refund the Transfer Price of the defective Licensor Product ordered. Further the Licensor shall only be under any liability in respect of any defective order for Licensor Products if:-
4.2.1 the defect is proved to the Licensor’s reasonable satisfaction to be due to bad workmanship or materials or to negligence on the part of the Licensor;
4.2.2 the Print Files are not defective;
4.2.3 the Licensee complies with the Licensor’s process for raising complaints regarding defective Licensor Product and the Licensor is advised of the alleged defect as soon as possible and in any event within 7 days of the Licensee becoming aware of such alleged defect; and
4.2.4 if required by the Licensor the order alleged to be defective is adequately packed to prevent further damage and are returned to the Licensor in accordance with the Licensor’s instructions and at the Licensee’s cost which the Licensor shall reimburse to the Licensee up to a maximum of $200 in the event that the Licensee’s Print Claim is upheld. In this regard the Licensee acknowledges and agrees that the Licensor has the right to inspect all or part of any Licensor Products ordered and alleged to be defective, can only inspect the proportion of any Licensor Products ordered and alleged to be defective that are actually returned to it, and where only part of the Licensor Products ordered and alleged to be defective are returned to the Licensor the remainder of the Licensor Products shall be deemed to have been supplied in accordance with the Licensor Print Specification;
4.3 In the event that any Print Claim made by the Licensee is rejected by the Licensor the Licensee shall be entitled to make an appeal to the CEO of the Licensor and at the Licensee’s cost have a suitably qualified expert attend any meeting convened by the Licensor to inspect the Licensor Products ordered and alleged to be defective;
4.4 If any Licensor Products ordered shall prove to be defective such defects shall not entitle the Licensee to refuse delivery of, or payment for, the remainder of the Licensor Products ordered in respect of which no defects were alleged or any other orders for Licensor Products accepted by the Licensor;
4.5 The Licensee acknowledges that variation is inherent in the print process and it is accepted and understood that whilst the Licensor shall make all reasonable efforts to meet the Licensor Print Specification the Licensor gives no warranties, conditions, guarantees or representations as to the Licensor Products merchantability or fitness for a particular purpose and all other warranties, conditions, guarantees or representations, whether express or implied, oral or in writing, except as expressly stated in this Addendum are hereby excluded;
4.6 Notwithstanding delivery and the passing of risk in a Licensor Product to the Licensee or any other provisions of this Addendum, ownership of and title to a Licensor Product shall not pass to the Licensee and shall be retained by the Licensor until the Licensor has received in cash or cleared funds payment in full of the Transfer Price in respect of the Licensor Product whether or not the Transfer Price has become due;
4.7 The Licensor shall have the absolute right at any time during the term of this Addendum to cease to manufacture or supply any Licensor Product, to change any Licensor Product, to add new products or services to the products and services offered by the Licensor at the Commencement Date;
4.8 The Licensee acknowledges and accepts that from time to time it may be necessary to vary the Licensor Print Specification and that the Licensor shall have the absolute right, on reasonable written notice to the Licensee to change the Licensor Print Specification in respect of any Licensor Product.
5 Carriage and Delivery
5.1 Following acceptance of each order the Licensor shall as soon as possible inform the Licensee of the estimated date for dispatch of the order in question (which in the case of collection by Licensee Carrier shall be extended by one Working Day). Dispatch shall be deemed to take place on the date that the Licensor makes the order in question available for collection by the Carrier. The Licensor shall use its reasonable endeavours to comply with the estimated date for dispatch but time of dispatch shall not be of the essence. Notwithstanding the forgoing the Licensor shall offer the Licensee Print Credits in respect of late dispatch, such Print Credits shall be the Licensor’s entire liability (and the Licensee’s only remedy) in respect of late dispatch;
5.2 The Licensee acknowledges and accepts that the Carriers are third parties and whilst the Licensor warrants that it will dispatch orders to the Carrier in good condition the Licensor shall have no liability to the Licensee in respect of damage to orders whose outside packaging is damaged on receipt by the Licensee unless the Licensee notifies the Licensor of such damage within three days of receipt of the orders by the Licensee and such damage occurred whilst the orders were at the Licensor’s risk which for the avoidance of doubt shall cease when an order is collected by the Carrier;
5.3 The Licensee acknowledges and accepts that risk of loss of or damage to Licensor Products shall pass to the Licensee on delivery to the Carrier;
5.4 The Licensee agrees and undertakes at all times during the continuance of this Addendum pay the Carrier Fee to the Licensor where the carrier employed by the Licensee is not the Licensor Carrier or Licensor Approved Carrier;
5.5 For the avoidance of any doubt the Licensee acknowledges and agrees that whilst the Licensor Carrier’s services are ordered through the Licensor, the Licensor is acting as the Licensor Carrier’s agent and accordingly there is a direct contract between the Licensee and the Licensor Carrier which is governed by the Licensor Carrier’s terms and conditions (the current version of which will be supplied on request). As such (and as detailed in clause 4.2 above) the Licensor shall, other than complying with its obligations as detailed in clause 5.1 above, have no liability (including for damage to goods and late delivery) in relation to the delivery of any goods that are to be delivered by the Licensor Carrier.
6 Payment for Licensor Products
6.1 The Licensee agrees and undertakes to pay to the Licensor for all orders of Licensor Products (in respect of which the Licensor shall charge the relevant Transfer Price) which the Licensor shall invoice weekly in arrears which shall be paid on the payment dates and by such method as is set out in the Order Confirmation under the heading Payment Method and Payment Terms.
7 Supply of Marqetspace Products
7.1 The Licensee acknowledges and agrees that the Licensor is under no obligation to make any particular Marqetspace Product available via the Platform and may withdraw any Marqetspace Product from the Platform at the Licensor’s sole discretion, at any time without notice and without incurring any liability whatsoever to the Licensee;
7.2 The Licensee acknowledges and agrees that Marqetspace Products are sold to it by the relevant Marqetspace Vendor subject to the relevant Marqetspace Vendor’s terms and conditions as set out on the Platform or howsoever otherwise communicated by the Marqetspace Vendor to the Licensee which the Licensee agrees to be bound by. Accordingly the Licensor shall have no liability whatsoever as regards any Marqetspace Products and the Licensee acknowledges and agrees that by making a Marqetspace Product available to purchase through the Platform the Licensor is not giving any warranty or making any representation with regard to that Marqetspace Product including as regards to its quality, merchantability, and fitness for purpose.
8 Acknowledgements by Licensee
8.1 The Licensee acknowledges that the Licensor does not give any guarantee or warranty with regard to such matters or generally in connection with the sales volume profitability or any other aspect of the operation of the Licensee’s business that relies on the supply of products and services pursuant to this Addendum. The Licensee acknowledges that he has been advised by the Licensor to discuss his intention to enter into this Addendum with other Licensees of the Licensor and to seek other appropriate independent advice, and that the decision to enter into this Addendum has been taken solely on the basis of the personal judgement and experience of the Licensee having taken such independent advice. Accordingly, the Licensee acknowledges that no representation, warranty, inducement or promise express or implied had been made by the Licensor or relied upon by the Licensee in entering into this Addendum save such as may have been notified by the Licensee to the Licensor in writing and are annexed to and incorporated in this Addendum.
8.2 The Licensee acknowledges and agrees that any rights granted to it pursuant to this Addendum shall only be enjoyed and exercised in respect of the business it operates and/or carries out from the Principle Location and warrants and represents that it shall not utilise, directly or indirectly, any rights granted to it pursuant to this Addendum from any other premises.
8.3 Unless terminated by either party giving not less than 5 Working Days notice to the other this Addendum shall commence on the Commencement Date and shall continue until the expiry or termination of the Subscription Agreement. For the avoidance of any doubt the termination of this or any other Addendum shall not affect the remainder of the Subscription Agreement which shall continue in force until its termination or expiry.
ADDENDUM (Image Library)
1 Definitions
In this Addendum the following expressions shall have the following meanings:
“Agreement”
means the Subscription Agreement and all Addendums to it;
“Customer T&Cs”
the terms and conditions as between the Licensee and Customers for the provision of Jobs;
“Image Fee”
the price pertaining to the relevant Work charged by the Licensor to the Licensee each time a Work is requested via the Platform for use in connection with a Job;
“Third Party Image Supplier”
any person engaged by the Licensor to provide Third Party Content pursuant to this Agreement;
“Works”
Third Party Content in the form of fonts, photograph’s, images or other pictorial or graphic work.
2 Description of the W3P Image Library
2.1 The W3P Image Library is a function of the Platform that makes Works available for download by the Licensee for use in the provision of Jobs;
2.2 Works supplied are supplied strictly pursuant to the terms of the Agreement and for the avoidance of doubt are always subject to any terms and conditions, whether of the Licensor or Third Party Image Supplier, appearing on the Platform;
2.3 Such Third Party Image Supplier’s terms and conditions include that any Work may be used only as part of an End Product that constitutes a Derivative Work as such terms are defined within the Third Party Image Supplier’s terms and conditions.
3 Fees and Payment
3.1 The Licensee agrees and undertakes to pay to the Licensor the Image Fees which the Licensor shall invoice weekly in arrears which shall be paid on the payment dates and by such method as is set out in the Order Confirmation under the heading Payment Method and Payment Terms. For the avoidance of doubt no Image Fee is payable in respect of Works incorporated in Designer Templates (which for the avoidance of doubt are made available to the Licensee via the Platform at the prices and on the terms detailed on the Platform and/or pursuant to any other agreement between the Licensee and the Licensor or any member of the Group in respect of TemplateCloud and Designer Templates as both are defined in such agreement).
4 Obligations of the Licensee
The Licensee agrees and undertakes as follows:
4.1 during the continuance of this Addendum the Licensee may use Works supplied by the Licensor pursuant to this Addendum an unlimited number of times to supply Customer reorders of a distinct Job. Notwithstanding the forgoing the Licensee acknowledges and agrees that this Addendum does not effect any sale of Works and except for the rights specifically granted under this Addendum the Licensee shall not have any right, title, interest or other ownership of such Works including any copyright or other intellectual property rights;
4.2 the Licensee shall ensure that Customer T&Cs contain any provisions reasonable required by the Licensor pursuant to the Licensor’s obligations to Third Party Image Suppliers;
4.3 the Licensee shall store all Works made available pursuant to this Addendum in a secure manner;
4.4 the Licensee acknowledges and agrees that (in particular having regard to its obligation pursuant to clause 2 above) it shall not under any circumstances allow a Work to be utilised by a third party, including any Customer, on a standalone basis.
5 Acknowledgments by the Licensee
5.1 The Licensor may terminate this Addendum forthwith, without incurring any liability whatsoever to the Licensee, in the event that Works cease to be available to the Licensor whereupon the Licensee will dispose of or destroy as the Licensor shall direct any Works previously downloaded. For the avoidance of any doubt the termination of this or any other Addendum shall not affect the remainder of the Subscription Agreement which shall continue in force until its termination or expiry;
5.2 The Licensee acknowledges the Works are supplied to the Licensor by Third Party Image Suppliers and that the Licensor makes them available to the Licensee as-is and with all faults, accordingly, the Licensee agrees that, to the full extent permitted by law, all other warranties and representations, whether oral or in writing and whether implied by statute, common law or otherwise relating to the Works (including but not limited to non infringement of third party rights, satisfactory quality or fitness for a particular purpose) and which the Licensee would otherwise have the benefit of are hereby excluded.
ADDENDUM (TemplateCloud)
1 Definitions
In this Addendum the following expressions shall have the following meanings:
“Agreement”
means the Subscription Agreement and all Addendums to it;
“Customer T&Cs”
the terms and conditions as between the Licensee and Customers for the provision of Jobs;
“Designer Template”
editable web-to-print template prepared by a Template Author, hosted on the Platform and utilised for Customers in connection with Jobs;
“pdf”
an electronic file conforming to the portable document format open standard ISO 32000-1;
“TemplateCloud”
the Licensor’s (or its Affiliate’s) database containing Designer Templates uploaded by Template Authors;
“Template Author”
a person who has uploaded Designer Templates to TemplateCloud;
“Template Editor”
the Licensor’s (or its Affiliate’s) software application which delivers a viewable session of Designer Templates to w3shops and which enables Customers to edit such Designer Template;
“Template Fee”
the price pertaining to the relevant Designer Template charged by the Licensor to the Licensee each time a Customer places an order with the Licensee in respect of which TemplateCloud has made a pdf created from a Designer Template available for download and/or a Designer Template available for editing;
“TemplateCloud Intellectual Property”
the business methods and formats, know-how, confidential information and all other intellectual property pertaining to TemplateCloud and belonging to the Licensor or any member of the Group including any copyright, design, patent, trademark, trade name or other so called intellectual property right whatsoever (whether registered or unregistered and whether existing now or at any time in the future) together with any goodwill relating or attaching to any such intellectual property rights and all extensions and renewals of any such intellectual property rights and the right to apply for any such intellectual property right;
“Trial Period”
The period of 90 (ninety) days following the commencement of this Addendum.
2 Description of TemplateCloud
2.1 The TC API is a function of the Platform that embeds the Template Editor within w3shops enabling Customers to edit Designer Templates held in TemplateCloud;
2.2 The TC API function makes available for download by the Licensee a print ready pdf each time a Customer places an order with a w3shop for an end product which has utilised a Designer Template.
3 Fees and Payment
3.1 The Licensee agrees and undertakes to pay to the Licensor the Template Fees which the Licensor shall invoice weekly in arrears which shall be paid on the payment dates and by such method as is set out in the Order Confirmation under the heading Payment Method and Payment Terms. For the avoidance of doubt:
3.1.1 the Licensee acknowledges that TemplateCloud is a dynamic marketplace, Designer Templates are ‘crowd sourced’ from Template Authors and that, in order to take prompt account of any increases or decreases required by Template Authors, Template Fees are subject to change at any time without notice.
4 Obligations of the Licensee
The Licensee agrees and undertakes as follows:
4.1 during the continuance of this Addendum the Licensee may use pdfs supplied by the Licensor pursuant to this Addendum an unlimited number of times to supply the relevant Customer reorders, it is acknowledged and agreed that each pdf is for use in connection with a single order for a particular Customer (or identical reorders for that Customer will be charged) and that any other use is strictly prohibited. For the avoidance of doubt a Template Fee is payable in respect of any use of a Designer Template made available for any Job. Notwithstanding the forgoing the Licensee acknowledges and agrees that this Addendum does not effect any sale of pdfs or any Designer Templates and except for the rights specifically granted under this Addendum the Licensee shall not have any right, title, interest or other ownership of such pdfs or Designer Templates including any copyright or other intellectual property rights;
4.2 the Licensee shall ensure that Customer T&Cs contain any provisions necessary for the Licensee to comply with its obligations pursuant to this Addendum and/or as may reasonably required by the Licensor in connection with its compliance with its obligations to Template Authors;
4.3 the Licensee shall store all pdfs and any Designer Templates made available pursuant to this Addendum in a secure manner and shall not to release such pdfs or Designer Templates to any third party without the prior written consent of the Licensor;
4.4 the Licensee acknowledges and agrees that it shall only be entitled to use each Designer Template or pdf as a whole and as such the Licensee shall not be permitted to use any constituent part (including any image), that has been supplied by or on behalf of the Licensor, separately from the rest of the Designer Template or pdf in question. Accordingly, the Licensee shall not, nor allow any third party to extract any constituent part of any Designer Template pdf or convert or howsoever manipulate any Designer Template or pdf so that its constituent parts can be used separately.
5 Acknowledgments by the Licensee
5.1 The Licensee acknowledges that Designer Templates are ‘crowd sourced’ from Template Authors and agrees that the Licensor provides the Designer Templates and access to TemplateCloud as-is and with all faults and that other than those written warranties and /or representations expressly given by the Licensor under this Agreement the Licensor gives no other warranties or representations;
5.2 The Licensor may withdraw any Designer Template from TemplateCloud, without incurring any liability whatsoever to the Licensee, in the event that Designer Templates cease to be available to the Licensor the Licensee will dispose of or destroy as the Licensor shall direct any Designer Templates previously made available;
5.3 This Addendum shall commence on the date that the TC API function of the Platform is enabled by the Licensor pursuant to the Licensee’s request and shall continue until the expiry or termination of the Subscription Agreement. Notwithstanding the foregoing the Licensee may terminate this Addendum by giving to the Licensor not less than three months prior notice expiring on or after the date that is one year from the commencement of this Addendum. Furthermore the Licensee may terminate this Addendum by giving to the Licensor written notice at any time during the Trial Period. For the avoidance of any doubt the termination of this or any other Addendum shall not affect the remainder of the Subscription Agreement which shall continue in force until its termination or expiry.
