(A) This addendum is an Addendum to the subscription agreement (the “Subscription Agreement”) between Nettl Australia Limited (NZ Company Number 6845335) (“Licensor”, “Nettl Australia Limited”, “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.
1 Operative provisions
In this Addendum the following expressions shall have the following meanings:
means the Subscription Agreement and all Addendums to it;
“Good Industry Practice”
having regard to the sums payable to the Licensor in respect of Nettl 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 Nettl Web Applications.
“Nettl Promotional Material”
Marketing material designed by the Licensor and made available as digital files for use by the Licensee in promoting the Licensee’s business capabilities;
“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 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;
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 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 Monthly Hosting Fee;
“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;
2 Appointment and Grant
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 those functions and features of the Nettl Web Applications and Nettl Trade Marks as the Licensor considers are universally available to all other licensees that have taken the same Subscription.
2.2 The right and license granted to the Licensee under clause 2.1 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;
3.1 The Licensor will provide the Licensee with ‘Nettl’ artwork which the Licensee may, at its option, choose to create a sign that the Licensee may display either internally or externally at the Principal Location;
3.2 The Licensee is permitted (but not obliged) to use the Nettl Trade Marks 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 a high standard and complies with any reasonable 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 in the Licensee and the Licensee agrees not to register any corporate name which incorporates the name Nettl or to register any URL incorporating the name Nettl.
4 Obligations of the Licensor
4.1 The Licensor agrees and undertakes during the continuance of this Agreement 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 (whether by virtue of ownership or under a grant of licence to the Licensor) 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.
5 Obligations of the Licensee
5.1 The Licensee agrees and undertakes during the continuance of this Agreement:
5.1.1 not to do or omit to do any act or thing which may in the reasonable opinion of the Licensor bring the 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;
5.1.2 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.
6 Payment for Web Services
6.1 The Licensee agrees and undertakes to pay to the Licensor the Website Deployment Fee (plus GST, if any) 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 (plus GST, if any) 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.
8.1 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 advises the Licensor of the alleged defect as soon as possible and in any event within 7 days of the Licensee becoming aware of such alleged defect.
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
10.1.3 contest or challenge in any legal proceedings or otherwise our rights in respect of any of the Nettl Trade Marks or the validity of any registration or application for registration, by the Licensor, or head licensor (as applicable), 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, or head licensor’s (as applicable), 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, either on its own behalf or on behalf of the head licensor (as applicable);
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, either on its own behalf or on behalf of the head licensor (as applicable);
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, if applicable, the head licensor) and any of the Licensee’s rights in this are excluded to the fullest extent permitted by law.
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. The Licensor shall be entitled to vary the additional charges at any time by posting a notice of change on its website, with such variation to take effect ten (10) Working Days after the notice of change has been posted. For the avoidance of any doubt, once a notice of change has been posted on the Platform, 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 in respect of the Nettl Trade Marks and all matters comprised therein (including, without limitation, the Nettl Web Applications) and that the Licensor can utilise the same and grant to any other person a licence to use the Nettl Trade Marks;
12.5 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;
12.6 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. Upon the termination or expiration of this Addendum the Licensee shall:
12.6.1 immediately cease to use the Nettl Trade Marks 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;
12.6.2 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 Promotional Material, signage and other materials provided to the Licensee under this Agreement;
12.6.3 do all such acts and things and execute all such documents necessary to transfer any domain name registered by the Licensee which incorporates the name Nettl to the Licensor.