Terms and Conditions – WilcomWorkspace Licence Agreement
1. Agreement
Please read carefully before registering to use Wilcom’s WilcomWorkspace web application (“Application”). These Terms & Conditions of use form a legally binding agreement between you the Customer 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, Customer represent and warrant that Customer have the authority to bind the party being issued an Account and Customer and that party are collectively referred to as “Customer” in this Agreement.
IMPORTANT NOTICE TO ALL CUSTOMERS
- BY SUBSCRIBING TO OR USING THE APPLICATION, 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, CUSTOMER MUST NOT SUBSCRIBE TO OR USE THE APPLICATION.
- 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 THE WEBSITE TO KEEP UP TO DATE WITH ITS RIGHTS. CUSTOMER’S CONTINUED USE OF THE SERVICES WILL BE DEEMED ACCEPTANCE OF ANY MODIFICATIONS.
2. Description of Services
2.1 The purpose of Wilcom’s Application is to make selected Wilcom WilcomWorkspace design software functionality accessible to Customer for Customer’s commercial or domestic use in accordance with this Agreement.
3. Customer Registration
3.1 Before using the Services, Customer must submit its details to Wilcom to create a Subscriber Account. Customer must provide accurate and truthful details for the purposes of creation of an Account and purchasing a Subscription for the Application. Such details requested by Wilcom may include name or entity, nature of business, primary use case for the Application, Country and current embroidery software brand owned.
3.2 Wilcom reserves the right to suspend or terminate Customer’s Account and/or Subscription if Wilcom discovers that Customer has, at any time, provided false, inaccurate, incomplete or misleading information.
3.3 Each Account will require Account sign-in and security details for each Customer. Each Customer will only be provided with one set of Account sign-in details and it is Customer’s responsibility to keep their Account details secure and confidential. Customer must not share or divulge its Account sign-in details to any third party. Wilcom reserves the right to suspend or terminate Customer’s Account and/or Subscription without refund if Wilcom discovers that Customer has, at any time, shared its Account sign-in details to any third party or undertaken or participated in any other fraudulent activity with Customer’s Account.
4. Website Subscription and Payment
4.1 In order to use the Application, Customer must have created a valid Account, have Internet access, be able to access and use the Website and must have a valid Subscription for the relevant Billing Period.
4.2 To obtain a Subscription, Customer must:
(a) provide Wilcom with one or more Payment Methods for the then current Subscription fee for the entirety of Customer’s Subscription Billing Period plus any additional costs, fees, charges, applicable taxes and other charges as may be incurred in respect of the Subscription.
(b) Unless Customer cancels the Subscription before the next expiry of the Subscription Billing Period, Customer authorises Wilcom to charge the periodic Subscription fee for the next billing cycle to Customer’s Payment Method (see "Cancellation" below).
(c) Customer must provide Wilcom with current and complete information as detailed in their Account and Payment Method information including full legal name, email address, credit card details and billing information as required and without limiting any of Wilcom’s rights and remedies, if Wilcom discovers or believes that any information provided by Customer is inaccurate or incomplete, Wilcom reserves the right to refuse to continue with Customer’s Subscription, or put on hold or terminate Customer access to the Website, or the Application and Customer will forfeit any right to a refund of any payment made by for the Subscription.
5. Free and Limited Use Trials
5.1 Customer’s Wilcom Subscription may start with a free Trial & Demo Plan Subscription. The duration of the trial period of Customer’s Subscription will be specified during sign-up and is intended to allow clients to try the features of the Application.
5.2 Trial & Demo Plan eligibility is determined by Wilcom at its sole discretion and Wilcom may limit eligibility or duration to prevent free trial abuse. Wilcom reserves the right to revoke the Trial & Demo Plan and suspend or cancel Customer’s Account at any time in the event that Wilcom determines that Customer is ineligible for a Trial & Demo Plan.
5.3 For combinations with other offers, further restrictions may apply.
5.4 Customer acknowledges and agrees that the Services under the Trial and Demo Plan may not be fully functional or contain all of the same functionality or features as the Application will have with a full paid Subscription. Trial and Demo Plans 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 Application under the Trial & Demo Plan.
6. Billing and Cancellation
6.1 The Subscription fee for the Application and any other charges Customer may incur in connection with use of the Application, such as taxes and possible transaction fees, will be charged to Customer’s Payment Method on the specific billing date indicated on Customer’s Account page. The length of Customer’s billing cycle will depend on the type of Subscription that Customer chooses when Customer sign-ups for a Subscription to use the Application. Billing details can be reviewed by Customer my checking the Customer’s Account.
6.2 To obtain a Subscription, Customer must provide one or more Payment Methods. Customer authorises Wilcom to charge any Payment Method associated to Customer’s Account in case Customer’s primary Payment Method is declined or no longer available to Wilcom for payment of Customer’s Subscription fee. Customer remains responsible for any uncollected Subscription fees. If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, and Customer does not cancel Customer’s account, Wilcom may suspend Customer’s access to the Application until Wilcom has successfully charged a valid Payment Method. For some Payment Methods, the issuer may charge Customer certain fees, such as foreign transaction fees or other fees relating to the processing of Customer’s Payment Method. Local tax charges may vary depending on the Payment Method used. Check with Customer’s Payment Method service provider for details.
6.3 Customer can update Customer’s Payment Methods by going to the Customer’s Account on the Website. Wilcom may also update Customer’s Payment Methods using information provided by the payment service providers. Following any update, Customer authorises Wilcom to continue to charge the applicable Payment Method(s).
6.4 Customer can cancel Customer’s Wilcom Subscription at any time through their Account, and Customer will continue to have access to the Application through the end of Customer’s Billing Period at which point their Subscription will automatically expire. To the extent permitted by the applicable law, payments are non-refundable and Wilcom does not provide refunds or credits for any partial Subscription periods.
6.5 Wilcom may change Subscription plans and the price of Subscriptions from time to time; however, any price changes or changes to Customer’s Subscription plans will apply no earlier than 30 days following notice to Customer.
6.6 All costs are in US Dollars unless otherwise indicated.
6.7 The Customer is responsible for all Taxes arising from Customer’s purchase and use of the Services.
6.8 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.
7. Website Access to Application
7.1 Wilcom will make the Application available to Customer via the secure section of the Website which will only be accessible with a valid Account and appropriate Subscription. A Trial and Demo Plan Subscription will not allow access to the full functionality of the Application.
8. Access to Application
8.1 Customers can only access the Application on the Website using their own Account and by signing in using their security information through the appropriate portal on the Website, to interact with the Application.
9. Licence for Application
9.1 Wilcom grants to Customer a single non-concurrent, non-exclusive, non-transferable, and non-sublicensable (except as expressly permitted in this Agreement) licence to use Application subject to the restrictions set out in this Agreement and solely to interact with and use the Application.
10. Restricted Activities
10.1 Customer must not use or access (or facilitate or enable another to use or access) the Website or Application 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 Website or Application to establish an unauthorised Account, or other user identities;
(b) sell, rent, trade, lease, copy, distribute or modify the Website or Application or store any part of the Website or Application 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 the Website, Application or any Wilcom Intellectual Property;
(e) use robots, spyders, scraping or other technology to access the Website or Application or databases to obtain any information beyond what Wilcom provides to the Customer under this Agreement;
(f) create any application or Software that may be used to violate this Agreement or any law;
(g) use the Website or Application 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;
(vi) brings Wilcom into disrepute or is otherwise damaging to the business of Wilcom; or
(vii) distribute, publish, or allow access or linking to the Website or Application without the consent in writing of Wilcom.
10.2 Customer must at all times provide data and information to Wilcom that is accurate and contains all necessary rights and consents.
11. Audit
11.1 Customer agrees that Wilcom may monitor and audit the Customer’s use of the Website or 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.
12. Technical Support
12.1 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 by way of its online community support forum at http://community.wilcom.com. This is the only support provided in respect of the Website and the Application and Wilcom makes no representation that the material available will be sufficient to resolve any particular Customer technical support issue.
12.2 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 Website of Application (Customer Error).
13. Intellectual Property
13.1 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.
13.2 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.
14. Confidentiality and Privacy
14.1 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.
14.2 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.
14.3 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.
15. Publicity
15.1 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.
15.2 Wilcom may identify the Customer in promotional material for the Website or Application.
16. Privacy
16.1 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.
16.2 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/privacy.
16.3 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.
16.4 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.
16.5 Customer must ensure that the Customer’s use of the Application complies with the Privacy Laws.
17. Warranties
17.1 Subject to the rights granted to Customer by statutory consumer protection legislation, which cannot be excluded, due to the nature of the Application and/or the products and services offered by the Website and Application, Wilcom makes no representations to Customer in respect of Customer’s use of the Website or Application and Wilcom provides no warranty as to any results or outcomes associated with using the Website or Application.
17.2 Customer expressly acknowledge that Customer’s use of the Website and Application is at Customer’s sole risk.
17.3 Wilcom does not offer refunds or credits for unused subscription periods, accidental purchases, or any similar reason or event, unless required by law to do so.
17.4 Wilcom:
(a) does not guarantee or warrant the availability of any part of the Website or Application or that the Customer’s use of the Website or Application will be uninterrupted or error-free, or that any part of the Website or Application 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 Website or Application may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
18. Modifications and Maintenance
18.1 Wilcom may modify or discontinue, temporarily or permanently, any part of the Website or Application 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 Website or Application.
18.2 Customer acknowledges that the modifications in clause 19.1 may result in changes in the appearance or functionality of the Website or Application and may affect interaction with other products and services use the Customer and may require the Customer to make changes to those products or services to be compatible with the Website or Application.
19. Security
19.1 Customer understands that the technical processing and transmission data as a result of using the Website and the Application, including Customer Data, may involve transmission over various networks, and changes to conform and adapt to technical requirements of connecting networks or devices. Wilcom will use reasonable endeavours to ensure that the Website and Application 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 Website or Application.
20. Liabilities and Indemnities
20.1 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 Website or Application.
20.2 Customer indemnifies Wilcom against all liabilities, costs, expenses, damages or losses suffered or incurred by Wilcom arising out of or in connection with Customer’s use of the Website or Application (including any infringement of any third party Intellectual Property rights) or breach by the Customer of the terms of this Agreement.
20.3 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 Billing Periods of Subscription fees; and
(b) at Wilcom’s sole discretion, re-performance by providing additional ongoing Subscription equal to the affected Billing Periods.
21. Wilcom Service Providers
21.1 Customer acknowledges that Wilcom may use third parties to provide any part of the Website or Application, including access to the Website or Application through third party websites, software applications, or other interfacing technology (Third Party Technology).
21.2 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.
21.3 Wilcom recommends that the Customer refers to the third party’s terms and conditions and privacy policy prior to using Third Party Technology.
21.4 Customer understands and agrees that its access to the Website or Application through Third Party Technology is at the Customer’s sole risk.
22. Term and Termination
22.1 This Agreement begins on the date that Wilcom sets up an Account for the Customer and provides sign-in details to the Customer, as reflected in Wilcom’s records (Start Date).
22.2 The Agreement begins on the Start Date and continues until it is terminated.
23. Termination by Customer
23.1 Customer may terminate this Agreement at any time and such notice will be effective at the end of the then current Billing Period for the Customer Subscription. Customer will not be provided a refund for any unused portion of a Subscription at the time of termination but will be entitled to continue to use the Website and Application for the remainder of that Subscription Billing Period.
24. Suspension or Termination by Wilcom
24.1 Wilcom may immediately limit or suspend the Customer’s Account, or terminate this Agreement, by written notice to the Customer if the Customer:
24.1.1 fails to comply with any of the terms of this Agreement;
24.1.2 if the Customer is, or is presumed by Law to be, insolvent or unable to pay its debts as and when they become due; or
24.1.3 for any other reason set out in the remainder of this Agreement.
25. Consequence of Termination
25.1 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 Website or Application, immediately and without notice, and remove and discard any Customer Data from Wilcom’s Website or Application; and
(b) Any customer access to the Application will cease, and all licences and any other Customer rights granted under this Agreement will terminate and Wilcom may in it’s sole discretion terminate Customer’s Account.
25.2 Termination of this Agreement for any reason will not relieve the Customer from its obligation to pay any outstanding Subscription fees or any other amount owing by the Customer to Wilcom including but not limited to any amount under an indemnity provided by Customer under this Agreement.
26. Website Terms and Conditions
26.1 By entering this Agreement, Customer also agrees to be bound by the Website Terms and Conditions. If there is any inconsistency between the Website Terms and Conditions and the terms of this Agreement, the terms of this Agreement will take precedence to the extent of any inconsistency.
27. Survival
27.1 The following clauses will survive any termination of this Agreement: clause 4, clause 6, clause 11, clause 14, clause 15, clause 17, clause 18, clause 21, clause 26.
28. General
28.1 Customer must not assign its rights or novate its obligations under this Agreement without Wilcom’s prior written consent.
28.2 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, pandemic and criminal acts of third parties.
28.3 Any time for delivery of the Website or Application will be extended for the period of any delay resulting from any force majeure event.
28.4 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.
28.5 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 the Website or Application by Wilcom.
28.6 Nothing in this Agreement creates a joint venture, partnership, agency, or employment relationship between Wilcom and the Customer.
28.7 Wilcom may vary the terms of this Agreement from time to time and current details of the terms of this Agreement will be made available on the Website at https://wilcom.com/workspace.
28.8 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.
28.9 A waiver of a breach of this Agreement does not waive any other breach.
28.10 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.
29. Interpretation
29.1 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.
30. Definitions
In this Agreement unless otherwise specified:
Account means the account for the accessing the Website and the Application that Wilcom sets up for Customer.
Application: means the Wilcom WilcomWorkspace web application that the Customer may access with a valid Account and valid Subscription in accordance with the terms of this Agreement.
Application: means the WilcomWorkspace web application hosted by Wilcom and accessible by Customers through the Website including but not limited to all Wilcom Embroidery Technology therein.
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.
Billing Period: means the recurring subscription period for a particular Subscription.
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 Website or Application;
(d) the Application and all information and Documentation located at or downloaded from the Website; and
(e) the Customer’s sign in details.
Documentation means, without limitation, user guides, technical documents, drawings, designs, specifications, reports, manuals available to the Customer via the Website (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.
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.
Payment Method means a current, valid, accepted method of payment, as may be determined by Wilcom in its absolute discretion from time to time, and which may include payment through Customer’s account with a third party such as a credit card provider or financial institution.
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.
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.
Subscription: means a valid operation and usage plan for the Application for a particular Billing Period in accordance with the details which are set out in this Agreement and on the Website.
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 12.
Trial & Demo Plan means an evaluation Subscription as described in clause 5 above.
Website: means https://wilcom.com/workspace
Website Terms and Conditions: means the terms and conditions applicable to the use of the Website from time to time and located at
https://www.wilcom.com/terms-of-use
Wilcom Embroidery Technology means Wilcom’s Intellectual Property that is accessed when using the Application.