Addendum – Marqetspace Extension Terms & Conditions
(A) This addendum is an Addendum to the subscription agreement (the “Subscription Agreement”) between Excel Digital Limited (“Licensor”, “w3p”, “us” or “we”) and the subscriber (“Licensee” or “you”) detailed in the quotation sent to you (the “Quotation”), it forms part of and is incorporated into the Subscription Agreement.
(B) Terms defined in the Subscription Agreement or any other Addendum where used in this Addendum shall have the same meaning as set out in the Subscription Agreement or other Addendum. Where there is any conflict between clauses and terms in this Addendum and clauses and terms in the Subscription Agreement this Addendum shall prevail.
(C) The Licensee wishes to place orders for Licensor Products and / or Marqetspace Products upon the terms and subject to the conditions set out below.
1 Operative provisions
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 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 Quotation;
“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”
The Licensor or 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 $400 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 COO 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 Quotation under the headings Payment Terms and Payment Method respectively.
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.
