LAST UPDATED: 12 November 2019

WIPPIT LICENCE TERMS

This Agreement (the “Agreement”) is entered into between you (“Client”) and Wippit Ltd, a company incorporated and registered in England and Wales with company number 10954278 whose registered office is at 36 Scotts Road, Bromley, England, BR1 3QD (“Wippit”).

 

Wippit and Client are referred to herein collectively as the “Parties” and individually as a “Party”.

 

Background

(A)              Wippit has developed the Wippit Platform (as defined below) to enable its customers to facilitate the 3D printing of digital inventory by such customers’ end users.

(B)              The Wippit Platform is made available to Client by Wippit subject to the terms of this Agreement.

Agreed terms

1.                 Definitions and Interpretation

(a)               In this Agreement, the following terms shall have the meanings set out in this Section:

3D-Printable File ” means the file generated by the Wippit API to stabilise the Digital Inventory such that it is enabled for 3D-printing.

3D-Printed Item ” means any 3D items printed by a User using Digital Inventory and 3D-Printable Files purchased from the Wippit Marketplace.

Brand Features ” means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each of Wippit and Client.

Client Site” means the Client website, social media pages and/or mobile application.

Confidential Informationmeansinformation of commercial and non-commercial value, in whatever form or medium, disclosed by one Party to the other Party, including commercial or technical know-how, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing and marketing and, for clarity any other information that is proprietary or confidential and is either clearly labelled as “Confidential” or “Proprietary” or that a Party should reasonably understand to be confidential or proprietary under the circumstances. Wippit’s Confidential Information includes the Wippit API, the Wippit Dashboard and the Wippit Data.

Contract Year ” means each period of twelve (12) months commencing on the Effective Date and each anniversary thereof during the term of this Agreement or, where the Agreement is terminated part way through a Contract Year, the last Contract Year shall be such shorter period between the Effective date or the last anniversary thereof (as applicable) and the date of termination.

Digital Inventory ” means the digital design(s) which Client may make available to Users for 3D printing (using the User’s own or a third party’s 3D printing device) via the Wippit Marketplace.

Gross Revenue ” means the total amount received by Wippit in respect of Digital Inventory purchased by Users from the Wippit Marketplace.

Net Revenue ” means Gross Revenues less Taxes, third party payment processing fees and any Refunds.

Refunds ” means any refunds payable to Users in respect of Digital Inventory under applicable law and/or the Wippit End User Terms.

Royalty ” or “Royalties” means 65% of Net Revenue.

Taxes ” means any sales, use, excise, value‑added, services, consumption and other taxes and duties payable by Wippit on Gross Revenues.

Terms of Use ” means the terms of use applicable to natural or legal persons who make digital inventory available on the Wippit Marketplace, as such terms of use are published on the Wippit Marketplace and/or the Wippit Website from time to time.

User ” means a user of the Wippit Marketplace who has downloaded and registered to use the Wippit App.

User Data ” means any data collected from, or relating to, Users.

Wippit API ” means the Wippit Box and associated software used to generate the 3D-Printable File.

Wippit App means the Wippit desktop or mobile application made available to Users via the Wippit Website and/or Apple and/or Android app stores from time to time (and any modifications, updates and upgrades thereto made available to Users from time to time).

Wippit Box ” means the Wippit desktop application into which Client submits Digital Inventory to be made available on the Wippit Marketplace.

  Wippit Dashboard ” means the Wippit customer interface accessible via the Wippit Website, through which Client is permitted to customise the display (including name, description and price) of the Digital Inventory made available to Users on the Wippit Marketplace.

Wippit Data ” means the data, content, and information made available to Client through the Wippit API and the Wippit Dashboard, and any other information or documentation provided or made available by Wippit to Client in respect of the Wippit Platform from time to time.

Wippit End User Terms ” means the end user licence agreement and purchase terms applicable to Users who purchase Digital Inventory, as such terms are published on the Wippit App, Wippit Website and/or Wippit Marketplace from time to time.

Wippit Marketplace ” means the Wippit marketplace accessible via the Wippit Website.

Wippit Platform ” means collectively the Wippit API, the Wippit Dashboard and the Wippit Data, and any modifications, updates and/or upgrades thereto made available to Client from time to time.

Wippit Website” means the Wippit website at www.wippit.xyz .

(b)              In this Agreement, any words following the terms “including”, “include” or any similar expression shall be construed as illustrative and shall not limit the sense of the description, definition, phrase or terms that comes before the relevant term.

2.                 Licence to the Wippit Platform

(a)               Subject at all times to Client’s full compliance with the terms of this Agreement, Wippit grants to Client a non-exclusive, revocable, non-sublicensable, non-transferable, licence to:

(i)                install one or more instances of the Wippit Box on the Client’s desktop; and

(ii)               use the Wippit Dashboard and the Wippit Data,

in each case, solely as necessary to enable Users to purchase (via the Wippit Marketplace) and 3D print the Digital Inventory to create 3D-Printed Items).

(b)              All access to and use of the Wippit Platform shall be governed by the terms of this Agreement. For the avoidance of doubt, Wippit’s Terms of Use shall apply to Client’s use of the Wippit Marketplace and the Wippit Website.

(c)               Use of the Wippit Platform is subject to subsection  2(d) , below (“ Restrictions ”). If Wippit in its sole discretion believes that Client has breached or exceeded the scope of the Restrictions or has in any fashion attempted to circumvent such Restrictions, Wippit reserves the right to suspend or permanently revoke Client’s permission to use the Wippit Platform as it may see fit acting in its sole discretion. Wippit may monitor Client’s usage of the Wippit API and Wippit Dashboard in order to improve the Wippit Platform, Wippit’s service and to ensure compliance with Wippit’s policies (including the Restrictions).

(d)              Client shall not, shall not attempt to, and shall not encourage or permit others to:

(i)                sell, resell, rent, lease, loan or sublicense access to the Wippit Platform to third parties or permit any third party to benefit from the use or functionality of the Wippit Platform;

(ii)               access any part of the Wippit Platform except through the access protocols provided or made available by Wippit;

(iii)             introduce to the Wippit Platform any viruses, worms, defects, Trojan horses, malware or any items of a destructive nature;

(iv)             defame, abuse, harass, stalk, or threaten others;

(v)               upload, submit or otherwise transmit any content (including Digital Inventory) that is unlawful, misleading, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libellous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;

(vi)             upload or otherwise transmit any unsolicited or unauthorised advertising, promotional materials, “junk mail,” “spam,” “chain letters,” or “pyramid schemes”;

(vii)            violate any applicable law or regulation;

(viii)          interfere with or disrupt the Wippit Platform or any servers or networks providing the Wippit Platform;

(ix)             fix, patch, improve or create new versions of the Wippit Platform;

(x)               create services that replace or compete with the Wippit Platform;

(xi)             remove, modify or obscure any Wippit Brand Features in the Wippit Platform and shall not use any Wippit Brand Features as part of Client’s name or the name of any Client Site or in any manner that creates a sense of endorsement or sponsorship by Wippit;

(xii)            use or access the Wippit Platform for the purpose of monitoring the performance or functionality of the Wippit Platform or for any other benchmarking or competitive purposes;

(xiii)          create or maintain back-up copies of the Wippit Platform, except to the limited extent that this restriction is expressly prohibited by applicable law;

(xiv)          modify, alter, edit or adapt the Wippit Platform or decompile, reverse engineer or attempt to extract the source code from the Wippit Platform or any related software, except to the limited extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988 or equivalent applicable local law) such actions cannot be prohibited because they are essential for the purpose of achieving interoperability of the Wippit Platform with another independent software program of which Client is a lawful user and provided that:

(1)               Client provides Wippit with advance written notice of Client’s intent to perform such actions, in which event Wippit may elect to, but shall in no circumstances be obliged to, provide Client with the information necessary to achieve interoperability of the Wippit Platform with that other independent software program;

(2)               any performance of such actions is confined to those parts of the Wippit Platform as are strictly necessary to achieve interoperability with that other independent software program; and

(3)               subject to the foregoing, the information obtained by Client during any such action(s): (i) is used only for the purpose of achieving interoperability of the Wippit Platform with that other independent software program; (ii) is not disclosed or communicated without Wippit’s express prior written consent to any third party to whom it is not strictly necessary to disclose or communicate it for the purposes of achieving interoperability with that other independent software program; (iii) is not used to create any software which is substantially similar to, or which may compete with, the Wippit Platform; and (iv) is not otherwise readily available to Client, including by way of provision by Wippit in accordance with Section 2(d)(xiv)(1) .

(e)               Wippit shall offer technical support for the Wippit Platform, the Wippit App, the Wippit Website, the Wippit Marketplace, the Digital Inventory, 3D-Printable Files, 3D-Printed Items or any services or content related thereto.

(f)                Wippit has no obligation to use or promote any Client Site or Digital Inventory.

(g)              Wippit reserves the right to disable or upgrade the Wippit Platform, Wippit App, the Wippit Website, the Wippit Marketplace and related content and services at any time without notice to Client and without any form of compensation or consideration to Client.

(h)              Wippit has no obligation to ensure that any upgrade of the Wippit Platform, Wippit App, the Wippit Website, the Wippit Marketplace and related content and services will be or will continue to be compatible with existing Client Sites, Digital Inventory or 3D-Printable Files.

(i)                Wippit has no obligation to moderate Digital Inventory submitted by Client. Notwithstanding the foregoing, Wippit may, in its sole discretion, refuse to create 3D-Printable Files in respect of any Digital Inventory, including where Wippit considers that such Digital Inventory comprises a breach of any one or more Restrictions.

3.                 Licence to Digital Inventory

(a)               Client hereby grants to Wippit a worldwide, non-exclusive, fully sublicensable, royalty-free, licence to use the Client Sites and Digital Inventory to the fullest extent as may be necessary for Wippit to exercise its rights and perform its obligations under this Agreement including, without limitation, to make the Digital Inventory available for sale to, and download by, Users on the Wippit Marketplace for the purpose of 3D printing.

(b)              Without limitation to Section 3(a) , Client acknowledges and agrees that Wippit may modify the Digital Inventory in order to create the 3D-Printable Files. Wippit shall notify Client of any such required modifications and Client shall provide its written consent to the same (such consent not to be unreasonably withheld or delayed) prior to making the 3D-Printable File available to Users. Notwithstanding the foregoing, and without prejudice to Section 2(i) , Client acknowledges and agrees that Wippit shall not be required to create 3D-Printable Files where (i) the Digital Inventory has been submitted in an incompatible file format; (ii) Wippit is unable to do so due to the technical limitations of its systems, equipment and/or facilities; and/or (iii) to do so would require disproportionate effort (whether in terms of time, cost, available technology, manpower or otherwise).

(c)               Client warrants and represents that Client has full power, capacity and authority to enter into this Agreement. Without limitation to the foregoing, Client warrants and represents on ongoing basis that Client has all rights and title, including all copyright, trade mark and other intellectual property rights, in the Client Sites and Digital Inventory necessary to make available the Client Sites, Digital Inventory and 3D-Printable Files to Users, to enable Users to create 3D-Printed Items and to grant the licences to Wippit under this Agreement.

(d)              Client will ensure that all Client Sites, Digital Inventory and 3D-Printable Files comply with all applicable laws, rules and regulations.

(e)               Client, and not Wippit, is responsible for providing all User support and maintenance for the Client Sites, Digital Inventory, 3D-Printable Files and 3D-Printed Items. Client agrees to take all necessary measures and efforts in a fashion commensurate with good industry practice to maintain and support the Client Sites, Digital Inventory, 3D-Printable Files and 3D-Printed Items.

(f)                Client will provide to Wippit all such cooperation and assistance as Wippit may reasonably require to make the Wippit Platform available to Client and otherwise to perform its obligations under this Agreement.

4.                 Reservation of Rights and Exclusivity

(a)               The Wippit Platform is licensed to Client subject to this Agreement and is not being sold. Wippit reserves all rights (including intellectual property rights) in and to the Wippit Platform not expressly granted herein, and this Agreement in no way conveys any ownership rights in or to, the Wippit Platform, the Wippit App, the Wippit Website, the Wippit Marketplace or any other content or services owned by Wippit or its licensors.

(b)              This Agreement is a non-exclusive agreement. Client acknowledges that Wippit may be developing, and may develop, products or services that may compete with the Wippit Platform, Client Sites or any other products or services.

5.                 Data Privacy

(a)               Each Party acknowledges and agrees that it is an independent data controller in respect of any personal data comprised within User Data (as the terms data controller and personal data are defined under the General Data Protection Regulation 2016/679 and the Data Protection Act 2018 (and any amendments thereto or replacements thereof from time to time)).

(b)              Client agrees that it will:

(i)                comply with all applicable laws relating to the collection, processing, storage and transfer of User Data; and

(ii)               make publicly available and abide by the practices described in, a privacy policy which complies any obligation under applicable law to be transparent about Client’s collection, storage, processing and transfer of User Data.

6.                 Branding and Publicity

(a)               Except where expressly stated, this Agreement does not grant either Party any right, title or interest in or to the other Party’s Brand Features.

(b)              Client may not use the Wippit Brand Features without Wippit’s prior written consent. Any permitted use by Client of the Wippit Brand Features (including any goodwill associated therewith) will inure to the benefit of Wippit.

(c)               Client may promote the Client Site and Digital Inventory, but Client may not issue any formal press release via traditional or online media referring to Wippit or its products or services without Wippit’s prior written consent. Without limitation to the foregoing, Client must conduct all such activities truthfully and without implying that any Client Site is created, sponsored, or endorsed by Wippit (or otherwise embellishing Client’s relationship with Wippit).

(d)              Client may not make any legal representations, guarantees or warranties on behalf of Wippit or with respect to the Wippit Platform, Wippit App, the Wippit Website, the Wippit Marketplace or related content or services.

(e)               Wippit may publicly refer to Client, orally or in writing, as a user of the Wippit Platform. Wippit may also publish Client Brand Features (with or without a link to any Client Site or Digital Inventory) on the Wippit App, the Wippit Website, the Wippit Marketplace, Wippit’s social media pages, in press releases, and in promotional materials without Client’s prior consent. Client hereby grants to Wippit a worldwide, non-exclusive, royalty-free, license to copy, display, perform, transmit, and use Client Brand Features for the purposes described in this subsection (f) .

7.                 Royalty

(a)               The Parties acknowledge and agree that Gross Revenues shall be paid by Users directly to Wippit.

(b)              Wippit shall pay the Royalty to Client by a PayPal transaction in monthly instalments in arrears within sixty-five (65) days of the calendar month in which Gross Revenues are received by Wippit:

(c)               Wippit shall pay the Royalty to Client in GBP.

8.                 Client Feedback

Any feedback, suggestions and ideas (“ Feedback ”) that Client provides to Wippit regarding the Wippit Platform, the Wippit App, the Wippit Website, the Wippit Marketplace or any content or services relating thereto will be treated by Wippit as non-confidential, and Wippit may, in its sole discretion, use the Feedback Client provides to Wippit in any way, including in future modifications of the Wippit Platform, the Wippit App, the Wippit Website, the Wippit Marketplace or any content or services relating thereto and/or advertising and promotional materials relating thereto. Client hereby grants to Wippit a perpetual, worldwide, fully sublicensable, fully transferable, irrevocable, royalty-free licence to use, reproduce, modify, create derivative works from, distribute and display the Feedback in any manner and for any purpose.

9.                 Termination

(a)               Client may terminate this Agreement at any time on notice in writing to Wippit. Wippit may immediately suspend Client access to the Wippit Platform or, if necessary, terminate this Agreement in its entirety at any time on notice in writing to Client if Wippit believes that Client has breached the terms of this Agreement, the Terms of Use or has otherwise engaged in activity that may cause liability to Wippit. Wippit may also terminate this Agreement for convenience on at least thirty (30) days’ written notice to Client.

(b)              Wippit will not be liable for any losses, costs, expenses or damages that may result from any termination of this Agreement or suspension of Client’s right to access the Wippit Platform.

(c)               Upon any termination of this Agreement, all licences granted by Wippit hereunder will cease and Client will cease using the Wippit Platform.

(d)              The following Sections of this Agreement shall survive termination or expiry howsoever arising: Sections 1 , 6 , 8 , 9 , 10 , 11 , 12 , 13 and 14 .

10.              Confidentiality

(a)               Each Party may be given access to Confidential Information from the other Party in order to perform its obligations under this Agreement. A Party's Confidential Information shall not be deemed to include information that: (i) is or becomes publicly known other than through any act or omission of the receiving Party; (ii) was in the other Party's lawful possession before the disclosure; (iii) is lawfully disclosed to the receiving Party by a third party without restriction on disclosure; (iv) is independently developed by the receiving Party, which independent development can be shown by written evidence; or (v) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

(b)              Each Party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than exercising the rights granted and performing its obligations under this Agreement.

(c)               Each Party agrees that it will protect the Confidential Information of the other Party from unauthorised use, access, or disclosure in the same manner that it would use to protect its own confidential and proprietary information of a similar nature and in any event with no less than a reasonable degree of care.

11.              Disclaimers of warranties

To the fullest extent permitted by law, the Wippit Platform, along with any other content and services provided by Wippit in connection with this Agreement and/or Client’s use of the Wippit Platform are provided on an “as is” and “ as available ” basis, without warranty, term or condition of any kind, whether express, implied, statutory or otherwise, including any warranty, term or condition of satisfactory quality, fitness for a particular purpose, and any warranties, terms or conditions arising out of course of dealing. Wippit does not warrant the Wippit Platform, along with any other content or services provided by Wippit under or in connection with this Agreement and/or Client’s use of the Wippit Platform will meet Client’s requirements, be error free, uninterrupted, virus free or secure.

12.              Limitation of Liability

(a)               Nothing in this Agreement limits or excludes the liability of either Party for (i) that Party’s indemnification obligations under this Agreement; (ii) that Party’s breach of Section 10 ; (ii) death or personal injury caused by that Party’s negligence; (iii) that Party’s fraud or fraudulent misrepresentation; or (iv) any other liability which cannot be limited or excluded under applicable law. Nothing in this Agreement limits or excludes the liability of Client under Sections 2(a) , 2(c) and 2(d) .

(b)              Subject to subsection 12(a) , in no event will either Party be liable to the other Party for (i) any loss of profits, loss of revenue or income, loss of savings, loss of goodwill, loss of business, loss of contracts or opportunities, loss or corruption of data, databases or software, in each case whether direct or indirect in nature, or (ii) any indirect, special, consequential or incidental loss or damage, in each case arising out of or relating to this Agreement.

(c)               Subject to subsection 12(a) and subsection 12(b) , each Party’s aggregate liability in each Contract Year in connection with all claims howsoever arising out of or relating to this Agreement in such Contract Year, will be limited to an amount equal to the aggregate amount of all Royalties paid by Wippit to Client in such Contract Year.

13.              Indemnification

Client will indemnify, defend and hold Wippit, its officers, licensors and employees harmless from and against any and all claims, damages, losses, liabilities, actions, judgments, costs, and expenses (including attorneys’ fees) arising out of or in connection with: (a) Client’s use of the Wippit Platform or the Wippit Brand Features other than as expressly permitted by this Agreement; (b) any and all third party claims alleging that use of any Client Site, Digital Inventory and/or 3D-Printable File by Wippit infringes any third party intellectual property rights; and (c) any and all claims from Users and any other third parties arising out of or in connection with any 3D-Printable Files and/or 3D-Printed Items. Client will assume control of the defence and settlement of any claim subject to indemnification by Client; provided, however, that Wippit may, at any time, elect to take control of the defence and settlement of any such claim. In any event, Client will not settle any such claim without Wippit’s prior written consent.

14.              Miscellaneous

(a)               Subject to Section 2(b) , this Agreement constitutes the entire agreement and understanding between Client and Wippit relating to the matters contemplated by this Agreement and supersedes all previous agreements (if any and whether in writing or not) between Client and Wippit in relation to such matters.

(b)              Client and Wippit each acknowledge and agree that, except as otherwise expressly provided for in this Agreement, they are not entering into this Agreement on the basis of, and are not relying on and have not relied on, any statement, representation, warranty or other provision (in any case whether oral, written, expressed or implied) made, given, or agreed to by any person (including third parties) in relation to the subject matter of this Agreement, provided that nothing in this Agreement shall exclude any from liability for fraud or fraudulent misrepresentation.

(c)               Client may not assign this Agreement or any rights or obligations hereunder, without the prior written consent of Wippit. Any attempted assignment without such prior written consent shall be void. Wippit may fully and freely assign this Agreement without prior notice to Client.

(d)              This Agreement does not create or imply any partnership, agency or joint venture between the Parties hereto.

(e)               A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and signed by an authorised representative of the waiving Party and shall not be deemed a waiver of any subsequent breach or default.

(f)                A failure or delay by either Party to exercise any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.

(g)              No variation of this Agreement shall be effective unless it is in writing and signed by the authorised representatives of each Party.

(h)              The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

(i)                If any provision or part-provision of this Agreement shall be held to be invalid, illegal, void or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this subsection shall not affect the validity and enforceability of the rest of this Agreement.

(j)                This Agreement and all matters arising from them (including, without limitation, any dispute relating to the existence, validity or termination of this Agreement or any contractual or non-contractual obligation) shall be governed by, and construed in accordance with the laws of England and Wales.

(k)               In relation to any legal action or proceedings to enforce this Agreement or arising out of or in connection with this Agreement (including, without limitation, any dispute relating to the existence, validity or termination of this Agreement or any contractual or non-contractual obligation) (“Proceedings”) Client and Wippit each irrevocably submit to the exclusive jurisdiction of the courts of England and waive any objection to Proceedings in such courts on the grounds of venue or on the grounds that the Proceedings have been brought in an inappropriate forum provided that a judgment or order of any court may be enforced in any court of competent jurisdiction.

(l)                A person who is not a Party to this Agreement shall not be entitled to enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999.

(m)             Any notice required to be given under this Agreement shall be in writing and shall be sent by recorded delivery post to the other Party at its address set out in this Agreement, or such other address as may have been notified by that Party for such purposes.

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