w3p Crossmedia Extension
(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.
(C) The Licensee wishes to place orders for Web Services 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:
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;
project management software hosted by or on behalf of the Licensor for the management of Web Services;
Websites, webshops, apps and other similar ecommerce technologies hosted by or on behalf of the Licensor;
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 Licensee in the implementation of Web Applications for use by Customers.
3 Fees and Availability of Web Applications
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 (including technologies that are owned by or licensed 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 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 (plus GST, if any) supplied by the Licensor on the payment dates and by such method as is set out in the Quotation under the headings Payment Terms and Payment Method respectively.
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 purpose, 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.
7.1 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 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 cancellation, 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 will be as specified on the Licensor’s website from time to time 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 10 business 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 Licensor’s website, 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.