Addendum – w3p software as a service – Brambl extension
(A) This addendum is an Addendum to the subscription agreement (the “Subscription Agreement”) between Excel Digital Limited trading as w3p (“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 use the Brambl Web Applications to create websites 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:
“Brambl Web Applications”
The Brambl website design tool together with 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 Brambl Websites;
“Brambl Website”
Each website created by the Licensee utilising the Brambl Web Applications;
“Brambl Deployment Fee”
The sum set out in the Quotation under the heading Brambl Deployment Fee;
“Brambl Website Hosting Fee”
The sum set out in the Quotation under the heading Brambl Website Hosting Fee;
“Monthly Brambl Fee”
The sum set out in the Quotation under the heading Monthly Brambl 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 Description of Brambl
2.1 Brambl is a website design tool available on the Platform that enables the Licensee to sell website design and hosting services to Customers.
3 Obligations of the Licensor
3.1 The Licensor agrees and undertakes during the continuance of the Subscription Agreement to make available, applying Good Industry Practice, the range of Brambl Web Applications set out on the Platform. Notwithstanding the foregoing the Licensee acknowledges and agrees that whilst some of the Brambl 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 Brambl Web Application available and may withdraw any Brambl 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 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 Brambl Fee which the Licensor shall invoice monthly in advance;
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 Brambl Hosting Fee in respect of each Brambl Website which the Licensor shall invoice monthly in advance;
4.3 The Licensee agrees and undertakes to pay to the Licensor the Brambl Deployment Fee in respect of each Brambl Website published by Licensee using the Brambl website design tool which the Licensor shall invoice weekly in arrears.
5 Use of Brambl Websites
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 the Brambl Web Applications (which the Licensor may notify the Licensee of from time to time) and in respect of each Brambl 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 Brambl 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 Brambl 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 Brambl 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 Brambl 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 Brambl 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 Brambl 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 Brambl 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 Brambl 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 Bramble 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 Brambl Website. Further the Licensor shall only have any liability in respect of a defective Brambl 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 Brambl 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 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;
7.2 The Licensee acknowledges that it is required to ensure that any website or other e-commerce business or arrangement, any advertisement, sign, directory entry or other form of publicity and promotional activity which utilises the Brambl trademark does so to the high standards required by the Licensor (including but not limited to the quality of printed items) and complies with the guidelines set out in the User Guide or any other instructions given (and in that respect will make any changes required) by the Licensor;
7.3 The Licensee acknowledges that whilst the Licensor shall make all reasonable efforts to ensure the Brambl Web Applications are made available according to Good Industry Practice the Licensor gives no warranties, conditions, guarantees or representations as to the Brambl 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;
7.4 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 Brambl 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 Brambl Website concerned;
7.5 The Licensee acknowledges and agrees that the Bramble Web Applications provide a framework within the Platform that enables the Licensee to develop Brambl 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 7.5 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 that have taken the Brambl 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;
7.6 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;
7.7 This Addendum shall commence on the date that the Brambl Web Applications are enabled by the Licensor pursuant to the Licensee’s request and shall continue until the expiry or termination of the Subscription Agreement.
