Addendum – printing.com Extension
(A) This addendum is an Addendum to the subscription agreement (the “Subscription Agreement”) between Redshift 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.
(B) 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 Printing.com Business and the Licensee recognises the benefits to be derived from the Printing.com Business and acknowledges the necessity of conforming to the high standards and uniform specifications of the Printing.com 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:
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 GST) of all Licensor Products to be purchased by the Licensee from the Group in each calendar month during the continuance of this Agreement;
the business of providing printing services using the Printing.com System detailed in the Printing.com Operating Manual and as this Agreement requires a reference to the Printing.com Business shall either be in relation to the Printing.com Business generally or in relation to the Printing.com Business carried on by the Licensee pursuant to this Agreement;
“Printing.com Trade Marks”
the trade name “Printing.com” 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 Printing.com that we may notify you that you are permitted to use;
“Printing.com 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 Printing.com Business and any amendment or variation thereof at any time hereafter published by the Licensor on its intranet;
“Printing.com Promotional Material”
Marketing collateral designed by the Licensor and made available as digital files for use by the Licensee to promote the Printing.com Business;
the business methods and formats, know-how, confidential information and all other intellectual property developed or owned by the Licensor and required to provide printing services developed by the Licensor to Customers and conduct and promote the Printing.com Business;
the area defined in the Quotation and set out in the Quotation under the heading Territory;
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 Printing.com Business from the Principal Location, the right and license granted to the Licensee to operate the Printing.com 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 Printing.com Business from a premises or any other property within the Territory under the Printing.com Trademarks;
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 printing services developed by the Licensor 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) or (ii) preventing the Group from licensing its intellectual property and applications 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 Printing.com Trademarks;
2.4 For the avoidance of doubt the Licensee is not restricted from using the Printing.com System to supply 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 Printing.com licensees.
3.1 Save as set out in clause 3.3 below the Licensee is permitted (but not obliged) to use the Printing.com Trademarks and Printing.com Promotional Material provided it ensures that any advertisement, sign, directory entry or other form of publicity and promotional activity which utilises the Printing.com Trademarks does so to the high standards required by the Licensor (including but not limited to the quality of printed items), complies with the guidelines set out in the Printing.com Operating Manual or any other instructions given (and in that respect will make any changes required) by the Licensor, and prominently displays alongside the Printing.com Trademarks either such location as the Licensor reasonably advises the Licensee to display (having regard for the location of the Premises) or next to the Licensee’s own trading name or style as per the marketing and brand manual available from the Licensor;
3.2 Notwithstanding the forgoing nothing in this Agreement vests any right, title or interest in the Printing.com Trademarks and the Licensee agrees not to register any corporate name which incorporates the name Printing.com.
3.3 The Licensee shall not use or place the Printing.com Trademarks on-line save for on the any section of the website www.printing.com made available by the Licensor to the Licensee or any non transactional website or other e-commerce business arrangements (where non transactional shall mean not capable of receiving or processing Customer orders for goods or services) used in connection with the Printing.com Business.
4 Obligations of the Licensor
4.1 The Licensor agrees and undertakes during the continuance of this Agreement:
4.1.1 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 Printing.com System and to provide reasonable facilities for consultation with the Licensee in connection with any problems relating to the Printing.com System from time to time arising with a view to assisting and enabling the Licensee to operate and maintain the Printing.com 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;
4.1.2 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 Printing.com Business in accordance with the provisions of the Printing.com Operating Manual and to conform in all respects and at all times with the Printing.com 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 Printing.com 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 brings the Printing.com Business, Printing.com System or Printing.com Trademarks into disrepute or which may in the reasonable opinion of the Licensor damage or conflict with the Licensor’s interests or those of other Printing.com licensees the Licensee acknowledging that the Licensor may remove any website listing or other directory listing and/or any telephone call routing services and/or any customer referral services it may provide from time to time if in the Licensor’s sole opinion the Licensee is in breach of this clause;
5.1.3 to comply with all advice and instructions reasonably given by the Licensor with regard to the operation of the Printing.com System, the Licensee acknowledging that it must use its best endeavours to implement improvements, additions or modifications of or to the Printing.com 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 Printing.com Business and to use best endeavours to promote and increase the Printing.com Business and to co operate with the Licensor and the other Printing.com licensees in this regard including permitting the Licensor to make product promotions and other such offers to Customers on behalf of the Licensee, save for where there is a charge made by the Licensor to the Licenseee for carrying out such promotion in which case the Licensee may opt out and decline from participating in such promotion;
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 Printing.com System or be granted rights to establish and/or operate a business that is competitive with the Printing.com Business;
5.1.7 to ensure that sales of Licensor Products to Customers shall be in accordance with the Printing.com Business’s standard terms and conditions of sale as amended from time to time.
6 Supply and Sourcing of Print
6.1 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 and that where any goods and/or services supplied to Customers that are not Licensor Products the Licensee shall make it expressly clear to all customers that those goods and/or services are not supplied to it by the Licensor and/or the Group.
6.2 The Licensee shall ensure that to the extent that any Customer order it has received is directly or indirectly secured as a result of the disclosure of any material (including without limitation any promotional material) supplied by the Licensor or any other material containing the Trade Trademarks (“an Induced Customer”) then such order placed by such Induced Customer shall be fulfilled using Licensor Products.
7 Proprietary Mark
7.1 The Licensee acknowledges and agrees that it shall not, at any time before or after the termination of the Agreement, either directly or indirectly:
7.1.1 seek in its own name, or allow any third party to seek in the Licensee’s name, to register or otherwise protect (including domain name registration) any trade mark that is identical or deceptively similar to any of the Printing.com Trade Marks; or;
7.1.2 adopt or use any trade mark, symbol or device which incorporates or is deceptively similar to the Printing.com Trade Marks, or unfairly competes with any of the Printing.com Trade Marks; or;
7.1.3 contest or challenge in any legal proceedings or otherwise our ownership of any of the Printing.com Trade Marks or the validity of any registration or application for registration, by the Licensor or on its behalf, of the Printing.com Trade Marks.
7.2 The Licensee shall use the Printing.com Trade Marks only for the purposes expressly permitted under the Agreement and, in particular, it shall not use the Printing.com Trade Marks in any way which would tend to allow them to become generic, lose their distinctiveness, become liable to mislead the public.
7.3 The Licensee undertakes not to do or permit to be done any act which:
7.3.1 would or might jeopardise or invalidate any registration of the Printing.com Trade Marks; or
7.3.2 might assist or give rise to an application to remove or invalidate any registration of the Printing.com Trade Marks; or
7.3.3 might prejudice the Licensor’s right or title to any registration of the Printing.com Trade Marks.
7.4 The Licensee shall on request promptly give to the Licensor or its authorised representative any information as to the Licensee’s use of the Printing.com 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 Printing.com Trade Marks.
7.5 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 Printing.com Trade Marks..
7.6 Nothing in the Agreement shall imply any obligation on the Licensor’s part to register or otherwise maintain in force any registrations of the Printing.com Trade Marks.
7.7 In those jurisdictions which the recording of the Agreement and/or the entry of the Licensee as a registered or authorised user of the Printing.com 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.
7.8 If the Licensee learns of any infringement or threatened infringement or passing off of any of the Printing.com Trade Marks or, any action detrimental to the Printing.com Trade Marks or, any third party claim or threatened claim relating to the Printing.com 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.
7.9 The Licensee acknowledges that the decision of whether or not to bring or defend any action or claim in respect of any of the Printing 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.
8 Change of Control
8.1 The Licensee agrees not to sell, assign, transfer, charge or sub license the Printing.com Business or Printing.com 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 Printing.com Business, or if a change in the management, ownership or control of the Licensee or the Printing.com 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.
9 Acknowledgements by Licensee
9.1 The Licensee acknowledges and agrees that the Licensor may from time to time pass orders received via the website www.printing.com to the Licensee where the postcode supplied by the customer concerned falls within the Territory (a “Referred Customer”). The Licensee acknowledges and agrees that such orders may be automatically fulfilled by the Licensor on the Licensee’s behalf and that in agreeing to receive orders from Referred Customers the Licensee hereby authorises the Licensor to create a binding agreement between the Licensee and the Referred Customer. The Licensee further acknowledges that nothing in the Agreement prevents the Licensor from howsoever using any information provided by Referred Customers whether before or after the termination of the Agreement
9.2 The Licensee hereby acknowledges the exclusive rights of the Licensor to own the Printing.com System and the Printing.com Trademarks and all matters comprised therein and itself to utilise the same and to grant to any other person a licence to use the Printing.com 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 Printing.com Operating Manual which for the avoidance of doubt the Licensor may amend at any time in its sole discretion and publish on its intranet;
9.3 The Licensee acknowledges that in giving advice to the Licensee, assisting the Licensee to establish the Printing.com 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 Printing.com Business. The Licensee acknowledges that he has been advised by the Licensor to discuss his intention to enter into this Agreement with other Printing.com 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;
9.4 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 Printing.com Business or the Printing.com System save such as are specifically authorised in the Printing.com Operating Manual in its form current at the time of the making by the Licensee of any such statement, representation, claim or warranty.
9.5 The Licensee acknowledges the need to be proactive in the use of Printing.com Operating Manual and shall conduct the Printing.com Business in accordance with it. In the event of any conflict between the terms of this Agreement and the terms of the Printing.com Operating Manual the former shall prevail;
9.6 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 Printing.com licensees and of the Printing.com System and the Printing.com Trademarks 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;
9.7 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;
9.8 The Licensee acknowledges and agrees that in the event that it, ceases to carry on the Printing.com Business, becomes insolvent by reason of its inability to pay its debts as they fall due, becomes bankrupt, enters into liquidation whether voluntarily or compulsorily other than for the purposes of a reconstruction or amalgamation, makes any arrangement or composition with its creditors, suffers the making of an administration order in respect of all or any part of its assets or takes or suffers any similar action in consequence of a debt the Licensor shall be entitled to use the Licensee Content and refer any Customer to an alternative licensee of the Licensor.
9.9 This Addendum shall commence on the date that the functions of the Platform required to operate the Printing.com Business 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 Printing.com 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 Printing.com 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 or the Licensee shall:
9.9.1 immediately cease to use the Printing.com Trademarks and operate the Printing.com Business and to use the Printing.com System and shall not thereafter hold itself out in any way as a Printing.com 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;
9.9.2 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 Printing.com Operating Manual and all signs, advertising materials, stationery, invoices, forms, specifications, designs, records, data, samples, models, programmes and drawings pertaining to or concerning the Printing.com Business or the Printing.com System;
9.9.3 do all such acts and things and execute all such documents necessary to transfer to the Licensor any domain name or internet address registered by the Licensee at any time after the date which is three months prior to the commencement of the Subscription Agreement which incorporates the name Printing.com.