Addendum – w3p software as a service – Nettl extension

(A) This addendum is an Addendum to the subscription agreement (the “Subscription Agreement”) between w3p 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 Group is known and well regarded for its expertise within the graphics art sector and the development of business systems, the Licensor has developed significant intellectual property in the Nettl Business and the Licensee recognises the benefits to be derived from the Nettl Business and acknowledges the necessity of conforming to the high standards and uniform specifications of the Nettl Business.
(D) The Licensee wishes to obtain the benefit of the Licensor’s knowledge, skill and experience and the right to operate the Licensor’s business system 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:
“Agreement”
means the Subscription Agreement and all Addendums to it;
“Minimum Monthly Purchase Target”
the sum detailed in the Quotation being the minimum aggregate value (excluding VAT) of all Licensor Products to be purchased by the Licensee from the Group in each calendar month during the continuance of this Agreement;
“Nettl Business”
the business of providing web services using the Nettl System detailed in the Nettl Operating Manual and as this Agreement requires a reference to the Nettl Business shall either be in relation to the Nettl Business generally or in relation to the Nettl Business carried on by the Licensee pursuant to this Agreement;
“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 Promotional Material”
Marketing collateral designed by the Licensor and made available as digital files for use by the Licensee to promote the Nettl Business;
“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 and conduct and promote the Nettl Business;
“Nettl Trade Marks”
the trade name “Nettl” and such other trade marks (whether registered or unregistered) and/or trade names and/or logos that we use in connection with the trade name Nettl that we may notify you that you are permitted to use;
“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;
“Territory”
the area defined in the Quotation and set out in the Quotation under the heading Territory;
“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 Quotation 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 Appointment, Grant and Territory

2.1 The Licensor hereby grants the Licensee during the continuance of this Agreement and upon the terms and conditions herein contained the right to operate a Nettl Business from the Principal Location, the right and license granted to the Licensee to operate the Nettl Business shall extend only to the Principal Location. The Licensee warrants and represents that it shall not utilise, directly or indirectly, any rights granted to it pursuant to this Addendum from any other premises without the prior written approval of the Licensor;
2.2 The Licensor will not grant to any other person the right, or knowingly permit any other person, to operate or establish a Nettl Business from a premises or any other property within the Territory under the Nettl Trade Marks;
2.3 Notwithstanding the provisions of clause 2.1 above nothing in this Agreement shall be construed as (i) granting the Licensee the exclusive right to supply Nettl Websites to those persons residing within the Territory (for the avoidance of doubt there is no embargo on other licensees supplying customers who reside in the Territory) (ii) preventing the Group from licensing its intellectual property and applications (such as Brambl web design tool) on a standalone basis or otherwise to any other person whose business operates from premises or any other property within the Territory without the use of the Nettl Trade Marks;
2.4 For the avoidance of doubt the Licensee is not restricted from supplying customers outside the Territory provided that the Licensee complies with all such instructions the Licensor may reasonably give in order to ensure an orderly marketplace for the mutual benefit of all Nettl licensees.

3 Branding

3.1 The Licensor will provide the Licensee with a ‘Nettl Partner’ sign to be displayed prominently either internally or externally, as required by the Licensor, at the Principal Location;
3.2 The Licensee is permitted (but not obliged) to use the Nettl Trade Marks and logo and Nettl Promotional Material provided it ensures 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 Nettl Trade Marks 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 Nettl Operating Manual or any other instructions given (and in that respect will make any changes required) by the Licensor;
3.3 Notwithstanding the forgoing nothing in this Agreement vests any right, title or interest in the Nettl Trade Marks and the Licensee agrees not to register any corporate name which incorporates the name Nettl.

4 Obligations of the Licensor

4.1 The Licensor agrees and undertakes during the continuance of this Agreement:
4.1.1 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;
4.1.2 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;
4.1.3 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.

5 Obligations of the Licensee

5.1 The Licensee agrees and undertakes during the continuance of this Agreement:
5.1.1 to operate the Nettl Business in accordance with the provisions of the Nettl Operating Manual and 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;
5.1.2 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 or Nettl Trade Marks 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;
5.1.3 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 ;
5.1.4 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;
5.1.5 diligently to carry on the Nettl Business and to use best endeavours to promote and increase the Nettl Business and to co operate with the Licensor and the other Nettl licensees in this regard;
5.1.6 not to directly or indirectly enter into any agreement (including without limitation any franchise agreement, brand license or similar) with a third party pursuant to which the Licensee will utilise a system which is similar to the Nettl System or be granted rights to establish and/or operate a business that is competitive with the Nettl Business;
5.1.7 to ensure that sales of Nettl web services to Customers shall be in accordance with Nettl Business’ standard terms and conditions of sale as amended from time to time.

6 Payment for Web Services

6.1 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;
6.2 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.

7 Use of Nettl Web Applications

7.1 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:
7.1.1 not do any act which the Licensor reasonably requests the Licensee not to do;
7.1.2 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;
7.1.3 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;
7.1.4 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;
7.2 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;
7.3 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.

8 Defects

8.1 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:-
8.1.1 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;
8.1.2 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.

9 Supply and Sourcing of Print

9.1 The Licensee acknowledges that in respect of Customers orders for print that it purchases from third parties the Group shall be the Licensee’s preferred supplier provided that having regard for the order concerned the products available from the Group are not materially less commercially advantageous to the Licensee than other print suppliers, including in respect of price, specification and turnaround.

10 Proprietary Mark

10.1 The Licensee acknowledges and agrees that it shall not, at any time before or after the termination of the Agreement, either directly or indirectly:
10.1.1 seek in its own name, or allow any third party to seek in the Licensee’s name, to register or otherwise protect any trade mark that is identical or deceptively similar to any of the Nettl Trade Marks nor register any domain name that contains the word nettl without the Licensor’s consent in writing; or
10.1.2 adopt or use any trade mark, symbol or device which incorporates or is deceptively similar to the Nettl Trade Marks, or unfairly competes with any of the Nettl Trade Marks; or
10.1.3 contest or challenge in any legal proceedings or otherwise our ownership of any of the Nettl Trade Marks or the validity of any registration or application for registration, by the Licensor or on its behalf, of the Nettl Trade Marks;
10.2 The Licensee shall use the Nettl Trade Marks only for the purposes expressly permitted under the Agreement and, in particular, it shall not use the Nettl Trade Marks in any way which would tend to allow them to become generic, lose their distinctiveness, become liable to mislead the public;
10.3 The Licensee undertakes not to do or permit to be done any act which:
10.3.1 would or might jeopardise or invalidate any registration of the Nettl Trade Marks; or
10.3.2 might assist or give rise to an application to remove or invalidate any registration of the Nettl Trade Marks; or
10.3.3 might prejudice the Licensor’s right or title to any registration of the Nettl Trade Marks;
10.4 The Licensee shall on request promptly give to the Licensor or its authorised representative any information as to the Licensee’s use of the Nettl Trade Marks which the Licensor may reasonably require and shall at the Licensor’s expense render any assistance reasonably required by the Licensor in securing or maintaining any registration of the Nettl Trade Marks;
10.5 The Licensor shall have the sole right in its sole discretion to prepare, file, prosecute, maintain and renew any and all applications and registrations for the Nettl Trade Marks;
10.6 Nothing in the Agreement shall imply any obligation on the Licensor’s part to register or otherwise maintain in force any registrations of the Nettl Trade Marks;
10.7 In those jurisdictions which the recording of the Agreement and/or the entry of the Licensee as a registered or authorised user of the Nettl Trade Marks is required or advised for the purpose of making the Agreement enforceable, or maintaining, enhancing or protecting the Licensor’s rights, the Licensee shall inform the Licensor of such requirements. If the Licensor consents to such action (not to be unreasonably withheld), the Licensor shall attend to such recording or entry, directly pay all costs or expenses incurred in connection with such recording or entry, and present evidence of such payments to the Licensee. The Licensee shall promptly reimburse us for such reasonable payments upon our presenting evidence of such payments;
10.8 If the Licensee learns of any infringement or threatened infringement or passing off of any of the Nettl Trade Marks or, any action detrimental to the Nettl Trade Marks or, any third party claim or threatened claim relating to the Nettl Trade Marks, the Licensee shall promptly notify the Licensor giving full particulars of such circumstances and the Licensee shall make no comment or admission to any third party in respect of such matters;
10.9 The Licensee acknowledges that the decision of whether or not to bring or defend any action or claim in respect of any of the Nettl Trade Marks shall rest solely with the Licensor and any of the Licensee’s rights in this regard (including any rights under Sections 30 and 31 of the Trade Mark Act 1994) are excluded to the fullest extent permitted by law.

11 Change of Control

11.1 The Licensee agrees not to sell, assign, transfer, charge or sub license the Nettl Business or Nettl System nor any part thereof without the prior consent of the Licensor which consent the Licensor may, in its absolute discretion, withhold and in the event that the Licensee, commences negotiations for the sale of the Nettl Business, or if a change in the management, ownership or control of the Licensee or the Nettl Business is contemplated (each a “Proposed Transfer”) the Licensee will promptly notify the Licensor of the Proposed Transfer and promptly supply the Licensor with all information it reasonably requires in respect of the Proposed Transfer.

12 Acknowledgements by Licensee

12.1 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;
12.2 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;
12.3 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 that have taken the Nettl Addendum). 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;
12.4 The Licensee hereby acknowledges the exclusive rights of the Licensor to own the Nettl System and the Nettl Trade Marks 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 the Nettl Trade Marks and to amend and modify the same by variation, addition, renewal, substitution or howsoever otherwise and to revise the Nettl Operating Manual which for the avoidance of doubt the Licensor may amend at any time in its sole discretion and publish on its intranet;
12.5 The Licensee acknowledges that in giving advice to the Licensee, assisting the Licensee to establish the Nettl Business, recommending equipment and materials and assessing the suitability of the Licensee, the Licensor has based its recommendations on experience actually obtained in practice but 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 Nettl Business. 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;
12.6 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 Business, the Nettl System or Nettl Websites save such as are specifically authorised in the Nettl Operating Manual in its form current at the time of the making by the Licensee of any such statement, representation, claim or warranty.
12.7 The Licensee acknowledges the fast changing nature of the Nettl Business and the need for guidance on its operation to be deployed quickly. The Licensee acknowledges the need to be proactive in the use of Nettl Operating Manual and shall conduct the Nettl Business in accordance with it. In the event of any conflict between the terms of this Agreement and the terms of the Nettl Operating Manual the former shall prevail;
12.8 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 the Nettl Trade Marks 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;
12.9 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;
12.10 This Addendum shall commence on the date that the Nettl 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. Notwithstanding the foregoing the Licensor may terminate this Addendum by giving to the Licensor written notice at any time if any material change shall occur in the management, ownership or control of the Licensee or the Nettl Business without the prior written consent of the Licensor or otherwise than in accordance with the provisions of this Agreement or the Licensee ceases or threatens to cease carrying on the Nettl Business or the Licensee fails to achieve the Minimum Monthly Purchase Target. 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. Upon the termination or expiration of this Addendum the Licensee shall:
12.10.1 immediately cease to use the Nettl Trade Marks and operate the Nettl Business and to use the Nettl System and shall not thereafter hold itself out in any way as a Nettl licensee and refrain from any action that would or may indicate any relationship between it and the Licensor including but not limited to removing or permanently covering all signs or advertisements identifiable in any way with the Licensor and in the event of failure promptly so to do, permitting the authorised agents of the Licensor to enter on the Licensee’s premises for such purpose;
12.10.2 return to the Licensor all items of equipment held on loan or hire from the Licensor and return or otherwise dispose of or destroy as the Licensor shall direct all copies of the Nettl Operating Manual and all signs, advertising materials, stationery, invoices, forms, specifications, designs, records, data, samples, models, programmes and drawings pertaining to or concerning the Nettl Business or the Nettl System;
12.10.3 do all such acts and things and execute all such documents necessary to transfer any domain name or internet address registered by the Licensee which incorporates the name Nettl to the Licensor.
12.11 The Licensee acknowledges and agrees that in the event that the Licensee fails to achieve the Minimum Monthly Purchase Target for three consecutive months then, notwithstanding any other provision of the Agreement, the Territory shall be amended such that it shall become the area defined by the postcode sector in which the Principal Location is situated.