Terms & Conditions - Wilcom EWA API Licence Agreement

Please read carefully before registering to use Wilcom’s Embroidery Web Application Programming Interface (EWA API). These Terms & Conditions of use form a legally binding agreement between you and Wilcom International Pty Limited (ACN 119 508 575) of Level 3, 1-9 Glebe Point Road, Sydney, New South Wales 2037, Australia (Wilcom) for use of the Services (Agreement). By accepting this Agreement, you represent and warrant that you have the authority to bind the party being issued an Access Key and you and that party are collectively referred to as “Customer” in this Agreement.

IMPORTANT NOTICE TO ALL CUSTOMERS

·         IF WILCOM REGISTERS AN ACCOUNT FOR CUSTOMER, CUSTOMER AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, WHICH WILL BIND CUSTOMER AND ITS EMPLOYEES.

·         If CUSTOMER doES not agree to the terms AND CONDITIONS of this AGREEMENT, WILCOM will not licenCe the EWA API OR SERVICES to CUSTOMER and CUSTOMER must NOT ACCESS THE API PORTAL OR uSE THE SERVICES.

·         WILCOM reserveS the right to MODIFY THIS AGREEMENT at any time.  ANY MODIFIED VERSION WILL BE EFFECTIVE AT THE TIME IT IS POSTED.  CUSTOMER SHOULD REFER TO WILCOM’S website AND THE API PORTAL TO KEEP UP TO DATE WITH ITS RIGHTS.  CUSTOMER’S continued use of THE services will be deemed acceptance OF ANY MODIFICATIONS.

Embroidery Functionality

2.1             The purpose of Wilcom’s EWA API is to make selected Wilcom Embroidery Technology design software functionality accessible to Customer to use in Customer’s own developed Customer Applications in accordance with this Agreement.

Customer Registration

2.2             Before using the Services, Customer must submit its details to Wilcom and Wilcom will determine if it wishes to register and set-up an API Account for Customer.

2.3             Wilcom will provide confidential API Account sign-in details to each Customer that Wilcom agrees to register.  Each Customer will only be provided with one set of API Account sign-in details.

Access to API Developer Portal

2.4             Customer may use its API Account sign-in details to log into the secure section of the API Developer Portal website.

Developer Tools

2.5             Wilcom will make the Developer Tools and Documentation available to Customer via the secure section of the API Developer Portal.

Access Keys

2.6             Wilcom will provide Access Key(s) to Customer, for each Wilcom-approved Customer Application that will require access to the EWA API software. Each Customer Application is assigned to an EWA Application Plan, which governs what functionality Wilcom will provide to that Customer Application via the EWA API, the applicable pricing and traffic limits.

2.7             Access Keys are the property of Wilcom and Customer must not disclose or share them with any third party without Wilcom’s prior written consent or as authorised by this Agreement. 

2.8             Access Keys may be revoked by Wilcom if their use is compromised or the Customer violates any term of this Agreement, and upon termination of this Agreement.

2.9             Customer must notify Wilcom immediately upon becoming aware of any unauthorised use of the Customer’s Access Keys.

Access to EWA API Software

2.10          Customer Application(s) can only access the EWA API software on Wilcom EWA API servers using the Access Keys as described in the Documentation, to interact with Wilcom Embroidery Technology.

EWA API Usage Limitations

2.11          The number of EWA API calls the Customer is permitted to make during any given period may be limited.  Wilcom will determine call limits based on a various factors, including the EWA Application Plan to which the Customer has subscribed and the anticipated volume of use associated with the Customer Application(s). The call limits will be set out in the applicable EWA Application Plan details on the Wilcom API Developer Portal Website.

Licence

3.1             Wilcom grants to Customer a non-exclusive, non-transferable, and non-sublicensable (except as expressly permitted in this Agreement) licence to use EWA API subject to the restrictions set out in this Agreement and solely to:

(a)             interact with EWA API software to retrieve information necessary to facilitate the Customer’s use of Wilcom Embroidery Technology through a Customer Application; and

(b)             use and to make limited intermediate copies of Developer Tools but only as necessary to perform an activity permitted under this Agreement.  Customer must delete all intermediate copies when they are no longer required for the purpose for which they were created.

Branding

3.2             Unless otherwise agreed with Wilcom, Customer must display the “Powered by Wilcom” graphic supplied by Wilcom on the Customer Application.

4.1             If the Customer selects the limited Trial & Demo Plan as its initial EWA Application Plan, the Customer may only use the Services for internal evaluation purposes for a period of 30 days (unless otherwise agreed) (Evaluation Period), and may only permit a limited number of calls (specified by Wilcom) to access the Services.

4.2             Prior to expiry of the Evaluation Period, the Customer may place a written order with Wilcom to upgrade to a full EWA Application Plan that Wilcom approves for commercial use.

4.3             If the Customer does not place an order prior to expiry of the Evaluation Period, Wilcom may suspend the Customer’s account and disable the Customer’s use of the Services. Wilcom may invite the suspended Customer to place an order to upgrade to a full EWA Application Plan that Wilcom approves for commercial use.

4.4             If Customer agrees to place an order to upgrade to a full EWA Application Plan that Wilcom approves for commercial use, Wilcom will reactivate the Customer’s account and enable working Application Keys.

4.5             If the Customer does not place an order within 30 days of expiry of the Evaluation Period, Wilcom will terminate the Trial & Demo Plan and clause 15.5 will apply. 

4.6             Customer acknowledges and agrees that the Services under the Trial & Demo Plan may not be fully functional and are provided for the purposes of demonstration and technical evaluation only and not for commercial use.  To the extent permitted by Law, Wilcom does not offer any warranty or indemnity for the Services under the Trial & Demo Plan.

Restricted Activities

5.1             Customer must not use or access (or facilitate or enable another to use or access) the Services in any way not expressly permitted under this Agreement.  For example, Customer must not, and must not facilitate or enable a third party to:

(a)             use any part of the Services to establish an unauthorised Access Codes, Application Keys or other user identities;

(b)             sell, rent, trade, lease, copy, distribute or modify an EWA API or store any part of the Services other as permitted by this Agreement;

(c)             enable a person to create or change registration preferences or privacy preferences of a Customer;

(d)             modify, decompile, reverse engineer or otherwise alter any part of an EWA API or any part of the Services;

(e)             use robots, spyders, scraping or other technology to access the Services, website or databases to obtain any information beyond what Wilcom provides to the Customer under this Agreement;

(f)              create a Customer Application that may be used to violate this Agreement or any law;

(g)             use a Customer Application or any part of the Services in a manner that:

(i)               is false, inaccurate or misleading;

(ii)              infringes any third party’s Intellectual Property;

(iii)             is defamatory, libellous, threatening, harassing or obscene;

(iv)            contains any viruses or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system or data; or

(v)             creates liability for, or causes Wilcom to lose (in whole or in part) the services of Wilcom’s internet service provider, third party providers, or other suppliers; or

(h)             distribute, publish, or allow access or linking to the EWA API from the Customer Application.

5.2             Customer must at all times provide data and information to Wilcom that is accurate and contains all necessary rights and consents.

Audit

5.3             Customer agrees that Wilcom may monitor and audit the Customer’s use of the Services and the Customer Application to ensure compliance with this Agreement.  Customer must not block or otherwise interfere with the monitoring or audit, and Wilcom may use technical means to overcome any methods the Customer may use to block or interfere with such monitoring.

6.1             Customer agrees to pay Wilcom the Fees for each EWA Application Plan that Wilcom provides to Customer.

6.2             The Fees consist of:

(a)             a licence fee that Wilcom will invoice on a once-off basis when Customer signs up for an EWA Application Plan; and

(b)             monthly usage fees which are calculated based on the number and type of API calls (methods) that the Customers Application(s) uses and the price for these calls as defined in the relevant EWA Application Plan (a minimum monthly usage fee may apply).

6.3             Unless otherwise agreed:

(a)             licence fees are payable 30 days from date of invoice;

(b)             usage fees are payable monthly in arrears by automatic debit to Customer’s credit card, bank account, or other payment method approved by Wilcom; and

(c)             if the Customer does not pay any amount due under this Agreement on time, Wilcom will charge a Manual Processing Fee and may charge the Customer interest on any unpaid amounts at a rate of 1.5% per month.

6.4             The Customer is responsible for all Taxes arising from Customer’s purchase and use of the Services.

6.5             Wilcom will review the Fees each calendar year and will provide Customer with 30 days prior written notice of any change to the Fees.

6.6             Any additional fees for supplementary services, additional support, consulting and other professional services will be agreed by Customer and Wilcom prior to being invoiced by Wilcom.

Technical Support

7.1             Wilcom will use reasonable endeavours to provide limited technical support to Customer in relation to a problem or fault associated with its use of the Services:

(a)             online through the API Developer Portal; and

(b)             by email. Customer may contact Wilcom for technical support at the email address notified by Wilcom to the Customer from time to time.

7.2             Customer will be responsible for receiving and responding to all calls for support from its end users for Customer Applications and for performing initial problem analysis, diagnosis, and replication of the problem at Customer’s location.

7.3             If it is suspected that a problem or fault in the Customers Application may be caused by the EWA API, Customer must reasonably cooperate with Wilcom by providing logs and other information about the problem, its occurrences, and provide assistance to Wilcom to help isolate and diagnose the problem.

Exceptions

7.4             Wilcom has no obligation to provide technical support to Customer for operational or performance issues or problems caused by Customer or third party software or hardware when using the Services (Customer Error).

7.5             Upon Customer’s written request, Wilcom may provide professional services and manage and rectify a Customer Error. Wilcom will charge Customer Wilcom’s current support fees for all technical support and assistance it provides.

Service Levels

7.6             Wilcom will aim, but does not guarantee, to provide a target Uptime for the Services of 99% where “Uptime” means 100% minus the percentage of time that the Services are inaccessible or not operational over a calendar month.

8.1             All right, title and interest and all Intellectual Property rights in and to the Background Intellectual Property of each respective party or a third party vests in and is the sole exclusive property of that party.

8.2             Neither party will at any time do, permit or cause to be done, any act or thing that would tend to impair or dilute either party’s Intellectual Property.

9.1             Customer may work with service providers as necessary to create and maintain a Customer Application on the condition that the Customer subjects those service providers to all of the terms, conditions, restrictions and indemnities in this Agreement.    

9.2             Customer acknowledges and agrees that any act or omission by its service provider that constitutes a breach of this Agreement will be deemed to be a breach by the Customer.

Confidentiality

10.1          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 is not deemed to include information that:

(a)             is or becomes publicly known other than through any act or omission of the receiving party;

(b)             was in the other party's lawful possession before the disclosure;

(c)             is lawfully disclosed to the receiving party by a third party without restriction on disclosure;

(d)             is independently developed by the receiving party, which independent development can be shown by written evidence; or

(e)             is required to be disclosed by law, by any court of competent jurisdiction, by any regulatory or administrative body, or by rules of any relevant stock exchange.

10.2          Each party will 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 under this Agreement.

10.3          Each party will take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees, contractors, or agents in violation of the terms of this Agreement.

Publicity

10.4          Customer will not make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of Wilcom, except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

10.5          Wilcom may identify the Customer in promotional material for the Services.

Privacy

10.6          To the extent that Wilcom is bound by Law, Wilcom will comply with Privacy Laws in relation to any Personal Information that Wilcom collects, uses or discloses under this Agreement.

10.7          Wilcom may collect, use and disclose information provided by the Customer as part of registration in accordance with Wilcom’s privacy statement available at http://www.wilcom.com/about/PrivacyStatement.aspx.

10.8          Customer will ensure that it is entitled to transfer the Personal Information to Wilcom so that Wilcom may lawfully use, process and transfer the Personal Information in accordance with this Agreement on the Customer’s behalf.

10.9          Customer will ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection and privacy laws.

10.10       Customer must ensure that the Customer Applications and the Customer’s use of the Services complies with the Privacy Laws.

11.1          Wilcom undertakes that the Services will be provided with reasonable skill and care, and in accordance with typical industry practices.

11.2          The undertaking in clause 11.1 will not apply to the extent of any non-conformance which is caused by use of the Services contrary to Wilcom’s instructions or this Agreement, or modification or alteration of the Services by any party other than Wilcom or its duly authorised third party providers.

11.3          If the Services do not conform to the undertaking in clause 11.1, Wilcom will use reasonable endeavours to correct any such non-conformance promptly.  Notwithstanding the foregoing, Wilcom:

(a)             does not guarantee or warrant  the availability of any part of the Services or that the Customer’s use of the Services will be uninterrupted or error-free, or that any part of the Services will meet the Customer's requirements; and

(b)             is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that any part of the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

Modifications and Maintenance

12.1          Wilcom may modify or discontinue, temporarily or permanently, any part of the Services at any time (including due to maintenance and or upgrades it undertakes) and will endeavour to provide the Customer with as much notice as is reasonable in the circumstances.  Customer agrees that Wilcom is not liable to the Customer or any third party for any modification, suspension or discontinuance of the any part of the Services.

12.2          Customer acknowledges that the modifications in clause 12.1 may result in changes in the appearance or functionality of the Services and may affect Customer Applications and require the Customer to make changes to the Customer Application (at the Customer’s cost) to be compatible with the Services.

12.3          Where possible, Wilcom will endeavour (but does not guarantee) to make available to eligible Customers a previous version of the EWA API to enable that Customer to reintegrate the Customer Application with the Services.

Security

12.4          Customer understands that the technical processing and transmission of the Services, including Customer Data, may involve transmission over various network, and changes to conform and adapt to technical requirements of connecting networks or devices. Wilcom will use reasonable endeavours to ensure that the Services are secure.  However, Customer acknowledges that it is possible for any electronic data transfer to be intercepted or hacked by others and as such, Wilcom will not be liable for any breaches of security, including the interception or hacking of any data transmitted by the Customer using the Services, unless caused by Wilcom’s negligent act or omission.

13.1          To the extent permitted by Law, Wilcom is not liable to the Customer for any costs, expenses, loss or damage (whether direct, indirect, consequential, loss of profits, revenue, business opportunities, likely savings and data) arising from the Customer’s exercise of the rights granted to it under this Agreement or for any act or omission of the Customer in connection with the Services.

13.2          Customer indemnifies Wilcom against all liabilities, costs, expenses, damages or losses suffered or incurred by Wilcom arising out of or in connection with a Customer Application, Customer’s use of the Services (including any infringement of any third party Intellectual Property rights) or breach by the Customer of the terms of this Agreement.

13.3          If any condition, term, warranty, representation or obligation is implied into this Agreement and cannot be lawfully excluded, restricted or modified then, to the extent permitted by law, the liability of Wilcom for breach of that condition, term, warranty, representation or obligation is limited in aggregate to (at Wilcom’s option):

(a)             refunding the previous two months EWA Application Plan(s) fees; and

(b)             at Wilcom’s sole discretion, re-performing the Services.

14.1          Customer acknowledges that Wilcom may use third parties to provide any part of the Services, including access to EWA APIs through third party websites, software applications, or other interfacing technology (Third Party Technology).

14.2          Wilcom makes no representation or commitment and has no liability or obligation in relation to the content or use of, or correspondence with, any third party using Third Party Technology, or any transactions completed, and any agreement entered into by the Customer, with any third party provider.  Any agreement entered into and any transaction completed using any Third Party Technology is between the Customer and the relevant third party, and not Wilcom. 

14.3          Wilcom recommends that the Customer refers to the third party’s terms and conditions and privacy policy prior to using Third Party Technology. 

14.4          Customer understands and agrees that its access to the Services through Third Party Technology is at the Customer’s sole risk.

Term

15.1          This Agreement begins on the date that Wilcom sets up an API Account for the Customer and provides sign-in details to the Customer, as reflected in Wilcom’s records (Start Date). 

15.2          The Agreement begins on the Start Date and continues until it is terminated.

Termination by Customer

15.3          Customer may terminate this Agreement at any time upon 30 days written notification to Wilcom and such notice will be effective when received by Wilcom.

Suspension or Termination by Wilcom

15.4          Wilcom may immediately limit or suspend the Services, or terminate this Agreement, by written notice to the Customer if the Customer fails to comply with any of its terms or the Customer is, or is presumed by Law to be, insolvent or unable to pay its debts as and when they become due.

Consequence of Termination

15.5          Upon termination of this Agreement:

(a)             Wilcom may at its sole discretion delete or deactivate the Customer’s account, block the Customer’s email or IP address, or otherwise terminate the Customer’s access to or use of any part of the Services, immediately and without notice, and remove and discard any Customer Data from Wilcom’s site or Services; and

(b)             Customer Application Keys will be revoked and all licences and any other Customer rights granted under this Agreement will terminate.

15.6          Termination of this Agreement for any reason will not relieve the Customer from its obligation to pay any outstanding Fees.

Survival 

15.7          The following clauses will survive any termination of this Agreement: clause 5 (Restricted Activities), clause 6 (Fees and Payment), clause 8 (Intellectual Property), clause 10 (Confidentiality and Privacy), clause 13 (Liabilities and Indemnities), clause 15 (Term and Termination).

Assignment and Novation

16.1          Customer must not assign its rights or novate its obligations under this Agreement without Wilcom’s prior written consent.

Force Majeure

16.2          Wilcom is not liable for any loss or delay (including failure to meet any service levels, if applicable) resulting from a force majeure event, including, but not limited to, acts of God, fire, natural disaster, terrorism, labour stoppage, war or military hostilities, and criminal acts of third parties.

16.3          Any time for delivery of Services will be extended for the period of any delay resulting from any force majeure event.

Governing Law

16.4          This Agreement is governed by the law in force in New South Wales and the parties submit to the exclusive jurisdiction of the Supreme Court of New South Wales.

16.5          For the avoidance of doubt, the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement or the supply of Services by Wilcom.

No Partnership

16.6          Nothing in this Agreement creates a joint venture, partnership, agency, or employment relationship between Wilcom and the Customer.

Variations

16.7          This Agreement may only be varied by written agreement between the parties.

Waiver of Rights

16.8          A right created by this Agreement may only be waived in writing by the party giving the waiver, and the failure to exercise or any delay in exercising a right or remedy provided by this Agreement or by law does not waive the right or remedy.

16.9          A waiver of a breach of this Agreement does not waive any other breach.

Severability

16.10       If any clause or part of any clause in this Agreement is held by a court to be invalid or unenforceable, that clause or part of a clause is to be regarded as having been deleted from this Agreement, and this Agreement otherwise remains in full force and effect.

Interpretation

16.11       In this Agreement:

(a)             a reference to this Agreement includes all its parts, and includes any amendment to or replacement of them;

(b)             a reference to a statute, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;

(c)             unless otherwise stated, a reference to “$” or “dollars” is a reference to USD United States currency;

(d)             a reference to a party includes a reference to the party’s executors, administrators, successors and assigns;

(e)             words importing a gender include every other gender;

(f)              the singular includes the plural, and vice versa;

(g)             headings are inserted for convenience and do not affect interpretation of this Agreement; and

(h)             “includes”, “including”, “for example”, “such as” and similar terms are not words of limitation.

17.1          In this Agreement unless otherwise specified:

 

API Account	means the account for the Services that Wilcom sets up for Customer.
API Developer Portal	means the Wilcom portal website through which Customers sign in and gain access to the Services. (https://developer.wilcom.com)
Access Keys	means the confidential security keys which are provided to the Customer to access and use the corresponding EWA API, consisting of an Application ID and one or more Application Keys per Customer Application
Background Intellectual Property	means any pre-existing Intellectual Property that is owned by a party which is in existence before the commencement of this Agreement and which that party is free as at the commencement date of this Agreement to disclose, license or transfer to the other party without being in breach of any obligations to any third party, and also means any Intellectual Property that is developed by a party independently of this Agreement.
Confidential Information	means information in any form (whether written, electronic, graphic, oral or otherwise) that falls within any of the following categories: (a)        the provisions of this Agreement; (b)        Customer Data; (c)        all information provided by the other party under this Agreement, including Wilcom’s technical, pricing, and commercial information in relation to the Services; (d)        the Developer Tools and all information and Documentation located at or downloaded from Wilcom’s website or the API Developer Portal; and (e)        the Customer’s sign in details and the Access Keys.
Customer Application	means the Software application, website or other interface that a Customer may develop, own or operate to interact with an EWA API.
Developer Tools	means the EWA API and all other tools and Documentation made available via the API Developer Portal (or such other web address notified by Wilcom to the Customer from time to time) which sets out technical guidance, documentation and sample source programs for creating Customer Applications.
Documentation	means, without limitation, user guides, technical documents, drawings, designs, specifications, reports, manuals available to the Customer via the API Developer Portal (or such other web address notified by Wilcom to the Customer from time to time).
Customer Data	means the data provided by the Customer for the purpose of using the Services, and which may include Personal Information.
EWA Application Plan	means the EWA API operation and usage plans which are set out in the API Developer Portal and Wilcom’s website.
Fees	means the fees, charges, pricing structures applicable to each EWA API Application Plan.
Intellectual Property	means: (a)        all copyright, Software, design rights (whether registered or unregistered) and database rights and any other intellectual property having a similar nature or equivalent effect anywhere in the world; and (b)        patents, utility models, trade marks, trade names, domain names and topography rights and any other intellectual property having a similar nature or equivalent effect anywhere in the world; and applications for or registrations of any of the rights described in (a) or (b) above.
Laws	means all laws within Australia, including rules of common law, principles of equity, statutes, regulations, proclamations, ordinances, by-laws, statutory rules of an applicable industry body, mandatory codes of conduct, writs, orders, injunctions and judgments.
Manual Processing Fee	means a charge which may be added to a monthly invoice where a Customer Credit Card payment is dishonoured, requiring manual processing of the payment due for the month.
Personal Information	means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.
Privacy Laws	means the Privacy Act 1988 (Cth), the Spam Act 2003 (Cth) and any other legislation in Australia relating to the handling of Personal Information, as amended from time to time.
Services	means the services described in clause 2 above.
Software	means any elements of coding or computer programs (including related documentation and media), including as applicable the object code and/or source code and without limit to whether the software is an operating system software, application software, tools, firmware or otherwise.
Taxes	means taxes, levies, imposts, charges and duties (including, stamp and transaction duties) imposed by any government agency, together with any related interest, penalties, fines and expenses in connection with them except if imposed on, or calculated having regard to, the overall net income of Wilcom.
Technical Support	means the technical support and services levels (if any) in clause 7.
Trial & Demo Plan	means the evaluation EWA Application Plan described in clause 4 above.
Wilcom Embroidery Technology	means Wilcom’s Intellectual Property that is accessed when using EWA APIs.