THIS AGREEMENT (“this Agreement”) is made on the date upon which it is first agreed between the parties to it (“Effective Date”).
BETWEEN:
(1) PURPLE WIFI LIMITED of Arbeta, 11 Northampton Road, Manchester M40 5BP United Kingdom (registered company number 06444980) (“Purple”); and
(2) The party which has entered this Agreement with Purple (the Referral Partner or the Company);
each a “Party” and collectively the “Parties”.
BACKGROUND
- The Parties previously entered into a reseller agreement under which the Company agreed to resell the Purple services to the Company’s customers (“Reseller Agreement”).
- However, Purple has recently implemented a new partnership program and it is accepted that the Company no longer meets the criteria to remain a reseller.
- Purple and the Company have terminated the reseller agreement and the Parties have agreed to continue their partnership via a referral model.
- Upon signing of this Referral Agreement, the Company shall be considered a “Referral Partner” and will introduce potential Customers to Purple.
OPERATIVE PROVISIONS
1. Interpretation
1.1. In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
• Business Day means any day, not being a Saturday or a Sunday or a bank or public holiday in England.
• Customer means a Potential Customer from whom (whether directly or through a Referral Partner, distributor and/or a reseller) Purple receives a Customer Order.
• Commencement Date means the date upon which this Agreement is executed by both Purple and the Referral Partner.
• Customer Order means an order received from a Customer for the provision of the Service, which may include indication of size and type of Venues, Platforms required, and integrations required, and subject to terms set forth in the Purple Reseller Agreement which shall be executed by and between Purple and the Customer.
• Initial Term means the period of one (1) year ending on the first anniversary of this Agreement.
• Intellectual Property Rights means any intellectual property rights arising by virtue of or in relation to patent, copyright, database rights, rights in trademarks (registered or unregistered), applications for any of the foregoing, trade secret rights and know how, and any other intellectual property or proprietary rights arising under the laws of any jurisdiction.
• Invoiced Amount means the amount (excluding Value Added Tax or any similar sales tax) invoiced by Purple to a Customer in respect of a Customer Order.
• Legacy Customer means an existing Customer who was previously using Purple’s service through a contract between that customer and the Company in their previous capacity as a reseller.
• Legacy Customer Service License means each service license as defined within, and granted under, the pre-existing reseller agreement between the parties, in respect of a Legacy Customer.
• Legacy Customer Transfer Fee means the one-off payment in respect of the transfer of a Legacy Customer Service License (in accordance with clauses 4 and 5) calculated at 30% of the Invoiced Amount, where applicable excluding hardware fees, collected for the duration of the initial term of the Customer contract (Purple WiFi Agreement), payable as set out in clauses 4 and 5.
• Platform means those platforms on which the Service is offered, being responsive web, optional mobile and optional kiosk.
• Potential Customer means a business customer which is first introduced to Purple by the Referral Partner but who is not a Legacy Customer.
• Purple Partner means any Referral Partner, reseller, distributor and/or any other intermediary Purple may use to effect their business dealings with Potential Customers and Customers.
• Quotation means a written quotation relating to the provision of the Service in accordance with the requirements of the relevant Potential Customer including any other details regarding the Service which Referral Partner shall communicate to the Potential Customer.
• Referral Fee means 15% of the Invoiced Amount, where applicable excluding hardware fees, collected for the duration of the initial term of the Customer contract (Purple WiFi Agreement), payable as set out in Clause 5. Any Customer Order for which a Referral Fee is mainly due to the actions of one referral partner shall not result in a fee due to any other referral partner. If a Referral Fee is due to the actions of more than one referral partner, a single Referral Fee shall be split equally between them on an equitable basis.
• Referral Sign-up Form means the form by which Purple and the Referral Partner entered into this Agreement and capitalised terms used in the Referral Sign-up Form shall bear the meanings set out herein unless the context clearly otherwise admits.
• Reseller Agreement is as referred to in the Background section of this Agreement.
• Service means Purple’s hosted software solution which provides a Customer with a WiFi hotspot platform which may be used by Users authorised by the Customer to access the internet provided under a “Purple WiFi Services Agreement.”
• Special Terms means the provisions which are set out and identified as “Special Terms” in the Referral Sign-up Form.
• User means any individual natural person who uses any portion of the Service.
• Venue means the Customer venue included in the Service.
1.2. Clause headings shall not affect the interpretation of this Agreement.
1.3. Words in the singular shall include the plural and vice versa.
1.4. A reference to one gender shall include a reference to the other genders.
1.5. A reference to any party shall include that party’s personal representatives, successors or permitted assigns.
1.6. A reference to a statute, statutory provision or any subordinate legislation made under a statute is a reference to such statute, provision or subordinate legislation as in force at the date of this Agreement.
1.7. References to clauses are to clauses of this Agreement.
1.8. Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
2. Referral Partner’s appointment and obligations
2.1. The Referral Partner is hereby appointed by Purple as a non-exclusive intermediary for the purpose of introducing Customers.
2.2. The terms of this Agreement (as it may be varied by the Special Terms or supplemented or amended from time to time) shall apply for the Initial Term and thereafter until terminated by either party in accordance with Clause 6.
2.3. The Referral Partner shall not:
(i) represent itself as an agent of Purple for any purpose, nor pledge Purple’s credit nor purport to give any condition or warranty or make any representation on Purple’s behalf or commit Purple to any contract; or
(ii) without Purple’s prior written consent make any representation, give any warranty, guarantee or other commitment with respect to the specifications, features or capabilities of the Service which are inconsistent with those contained in the official materials supplied by Purple or otherwise incur any liability on behalf of Purple.
2.4. The Referral Partner shall effect an introduction of each Potential Customer to Purple by such means as shall be agreed between the Parties from time to time.
2.5. Subject to clause 2.6 below, any referral must meet the following criteria:
i) the Potential Customer must not already be a live, qualified or currently proposed opportunity for Purple (engaged through another Purple Partner or directly engaged by Purple or otherwise); and
ii) the Referral Partner must have qualified the lead (in accordance with any qualification criteria provided by Purple, in its discretion) and set up the initial Potential Customer meeting for Purple in order to qualify for payment of the Referral Fee.
2.6. Clause 2.5 above shall not apply to Legacy Customers.
3. Purple’s obligations to the Referral Partner
3.1. Purple will provide all customer support and installation in accordance with the Purple WiFi Services Agreement.
3.2. Purple shall assess the individual requirements of each Potential Customer within 5 Business Days after introduction of such Potential Customer in accordance with Clause 3.4 and, at its sole discretion, decide if the Service is suitable for the requirements of such Potential Customer and each such decision shall be notified promptly to the Referral Partner.
3.3. Where Purple decides that the Service is suitable for the requirements of a Potential Customer it shall, within a reasonable time, provide a Quotation to such Potential Customer and provide a copy of such Quotation to the Referral Partner.
3.4. Purple shall provide reasonable notification to the Referral Partner as to the progress of each Quotation and inform the Referral Partner as soon as reasonably practicable upon receipt of a Customer Order.
3.5. Purple shall not be obliged to provide any Quotation nor accept any Customer Order and, for the avoidance of doubt, where Purple declines to provide a Quotation or accept a Customer Order, the Referral Partner shall not be entitled to the Referral Fee.
4. Transfer of Legacy Customers
4.1. At the end of each current term in respect of a Legacy Customer Service License:
4.1.1. the relevant Legacy Customer Service License shall expire and the Reseller Agreement shall no longer apply in respect of that license; and
4.1.2. subject to the execution of a separate contract between Purple and the Legacy Customer, in respect of that license only, the Legacy Customer shall then become a Purple Customer.
4.2. Once the above at clause 4.1 has occurred, there shall be considered to have been a “Legacy Customer Service License Transfer”.
4.3. For the avoidance of doubt, Legacy Customer Service Licenses which have not reached the end of their term shall still be subject to the pre-existing reseller agreement until their point of expiry.
4.4. Once there has been a Legacy Customer Service Transfer of all Legacy Customer Service Licenses held by a single Legacy Customer, the Legacy Customer shall in all respects cease to be considered a customer of the Company (acting in its former capacity as reseller) and instead shall become a direct Customer of Purple.
5. Fees and Payment
5.1. As the case may be, Purple will only pay one of either:
5.1.1. Legacy Customer Transfer Fee, in respect of a Legacy Customer only (in which case clauses 5.2–5.3 inclusive apply); or
5.1.2. Standard Referral Fee, in respect of other Customers (in which case clauses 5.4–5.10 apply).
Legacy Customer Transfer Fees
5.2. Legacy Customer Transfer Fees are payable where:
5.2.1. the Referral Partner promptly provides to Purple, upon request, the following information:
5.2.1.1. Legacy Customer name and contact information; and
5.2.1.2. the price paid by the Legacy Customer for the current Legacy Customer Service License (if applicable); AND
5.2.2. there has been a Legacy Customer Service License Transfer.
5.3. By way of consideration for the Company facilitating the transfer of a Legacy Customer Service License as set out in clauses 4 and 5.2 above:
5.3.1. Purple shall notify the Company promptly when the Legacy Customer has entered into a direct contract with Purple in respect of a Legacy Customer Service License Transfer, confirming the Invoiced Amount in respect of the first Customer Order.
5.3.2. The Company shall, as soon as reasonably practicable after receipt of notification from Purple in accordance with Clause 5.3.1, provide a valid invoice to Purple in respect of the Legacy Customer Transfer Fee.
5.3.3. Purple shall pay the Legacy Customer Transfer Fee to the Company within 14 days after receipt of the invoice referred to in clause 5.3.2. Where applicable, hardware fees, as well as taxes, fees for additional services or extensions added by a Customer (formerly a Legacy Customer) after the initial order shall not be included in any Legacy Customer Transfer Fees.
5.3.4. All fees payable under this Agreement are exclusive of Value Added Tax or any similar sales tax, which if applicable shall be added to the relevant invoice and shall be paid by Purple at the rate and in the manner prescribed by law from time to time. Except as otherwise agreed in advance in writing, Company shall not be authorised to incur any expenses on behalf of Purple and is responsible for all expenses incurred while performing services on its behalf.
Standard Referral Fees
5.4. Purple shall, in respect of the initial Customer Order of the Customer only, notify the Referral Partner promptly upon receipt of payment in full of the Invoiced Amount in respect of such Customer Order.
5.5. The Referral Partner shall, as soon as reasonably practicable after receipt of notification from Purple in accordance with Clause 5.1, provide a valid invoice to Purple in respect of the Referral Fee.
5.6. Subject to Purple’s discretion, Purple may, in respect of each Initial Customer Order received by it from a Customer introduced by the Referral Partner, notify the Referral Partner promptly upon receipt of payment in full of the invoiced amount for the duration of the initial term in respect of such order.
5.7. The Referral Partner shall, as soon as reasonably practicable after receipt of notification from Purple in accordance with Clause 5.3, provide a valid invoice to Purple in respect of the Referral Fee.
5.8. Purple shall pay the Referral Fee to the Referral Partner within 30 Business Days after receipt of the invoice referred to in Clause 5.2 and/or the invoice referred to in Clause 5.4 (as relevant). Where applicable, hardware fees, as well as fees for additional services or extensions added by a Customer after the initial order shall not be included in any Referral Fee.
5.9. Purple may change the method of payment or the basis of calculation of the Referral Fee upon giving to the Referral Partner not less than 20 Business Days prior written notice. Any amended method of payment or basis of calculation of the Referral Fee shall only apply to Potential Customers introduced by the Referral Partner after the expiry of such notice period.
6. Termination
6.1. This Agreement may be terminated:
6.1.1. by Purple immediately if (i) the Referral Partner misrepresents the Service, (ii) in the reasonable opinion of Purple, the Referral Partner acts in a way that causes or is likely to cause damage to Purple’s reputation; or (iii) at any time either the Referral Partner or End Customer operates out of, or places Access Points in, any geographical zone or regime which is the subject of any governmental sanctions by either Party at any time after the Initial Term on giving one (1) month’s prior written notice of termination to the other;
6.1.2. by either Party at any time after the Initial Term on giving one (1) month’s prior written notice of termination to the other;
6.1.3. by either Party immediately on giving written notice to the other where such other Party has committed a material breach of this Agreement and, in the case of a breach which is capable of being remedied, the recipient of such notice shall have failed to remedy such breach within 14 days after receiving a notice from the other Party requesting it to do so; and
6.1.4. by either Party immediately on giving written notice to the other if it becomes apparent that the other Party has become insolvent or has had a receiver, administrator or administrative receiver appointed, or has applied for or has called a meeting of its creditors, or has resolved to go into liquidation (except for a bona fide amalgamation or reconstruction while solvent), or an application is made to appoint a provisional liquidator or for an administration order or notice of intention to appoint an administrator is given or a proposal is made for a voluntary arrangement or any other composition, scheme or arrangement with or assignment for the benefit of any of the other Party’s creditors, or any event analogous to any of the foregoing occurs in any jurisdiction or if the other Party ceases or threatens to cease to carry on business.
6.2. Upon termination of this Agreement for any reason:
6.2.1. all rights granted to either Party under this Agreement shall immediately end;
6.2.2. all amounts owed by Purple to the Referral Partner shall become immediately due and payable;
6.2.3. any term of this Agreement which is expressly or by implication intended to come into or continue in force on or after termination shall come into force or continue in force as intended;
6.2.4. each Party shall promptly return to the other all confidential information belonging to such other Party and all copies of the whole or any part thereof in its possession or control or, if requested in writing by such other Party, shall destroy the same and certify in writing to such other Party that all copies of the whole or any part of any such confidential information have been destroyed; and
6.2.5. rights that have accrued to either Party prior to termination shall not be affected.
7. Confidentiality
7.1. Each of the Parties agrees that the commercial terms of this Agreement (including without limitation any pricing set out within any Customer Order) and any information relating to the business of the other, and/or the business of any Potential Customer which is passed to it by the other in connection with this Agreement as well as any information whether or not marked as “confidential” or which ought reasonably to be considered to be confidential (or similar) shall, at all times, be kept and shall remain confidential.
7.2. The confidential information referred to in Clause 7.1 may be disclosed by the Referral Partner or Purple only to such of its officers, employees, contractors, auditors or other professional advisors to whom and to the extent to which disclosure is necessary for the fulfilment of this Agreement or for the purposes of professional advice, subject to the Referral Partner or Purple (as applicable) ensuring that any such individual is under a duty to maintain the confidentiality of any such information that is disclosed to him. No confidential information may be disclosed to a third party without the prior written consent of both the Referral Partner and Purple unless and to the extent that such disclosure is required by law.
7.3. 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; or
(d) is independently developed by the receiving Party, which independent development can be shown by written evidence;
shall not be regarded as confidential information for the purposes of Clause 7.1.
7.4. The obligations of confidentiality in this clause 7 shall continue to apply after termination of this Agreement.
8. Non-solicitation
The Referral Partner agrees that during the term of this Agreement and for a period of three (3) years from date of the termination of this Agreement it will not solicit any customers that are part of Purple’s existing customer base or prospect list for any business that competes with Purple.
9. Intellectual Property
All Intellectual Property Rights arising from the provision of the Service, including but not limited to any software used by Purple, shall belong exclusively to and shall remain vested in Purple.
10. Liability
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE), WHETHER FORESEEABLE OR UNFORESEEABLE, REGARDLESS OF THE BASIS OF THE CLAIM AND EVEN IF THE PARTY OR A PARTY’S REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
PURPLE’S CUMULATIVE LIABILITY FOR DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION.
11. General
11.1. Entirety. This Agreement and the documents incorporated hereto by reference (as may be amended from time to time) constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between the Parties, whether written or oral, relating to its subject matter.
11.2. Governing Law and Jurisdiction. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales. Each Party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
11.3. Laws. The Parties agree to comply with all applicable laws relating to their respective activities and obligations under this Agreement, including without limitation all applicable export control laws, obligations under the Data Protection Act 2018, UK GDPR and the provisions of the Bribery Act 2010.
11.4. Notices. All notices which are required to be given under this Agreement shall be in writing and shall be sent either by email to such email address as the recipient may designate by notice given in accordance with this Clause or by first class pre-paid recorded delivery post or airmail to the address of the recipient set out at the beginning of this Agreement or such other address as the recipient may designate by notice given in accordance with this Clause. Any notice sent by email shall be deemed to have been served one hour after it is sent (save where the sender receives notification that such email has not been delivered) and any notice sent by first class pre-paid recorded delivery post or airmail shall be deemed to have been served 48 hours after posting.
11.5. Assignment. The Referral Partner may not assign any provision of this Agreement without the prior written consent of Purple.
11.6. Waiver. A failure to exercise or a delay in exercising a right or remedy provided by this Agreement or by law shall not constitute a waiver of such right or remedy. If an effective waiver of any breach of any of the terms of this Agreement is made, then such waiver shall not constitute a waiver in respect of any other breach of such term or any breach of any other term.
11.7. Warranties. Except as set forth below, the terms of this Agreement are in lieu of all warranties, conditions, undertakings, terms and obligations concerning the supply, licensing and use of the Service which might but for this Clause have effect between Purple and the Referral Partner or would otherwise be implied or incorporated into this Agreement or considered to take effect as a collateral contract, whether by statute, common law, trade usage, course of dealing or otherwise, all of which are agreed to be excluded to the fullest extent permitted by law. Each Party represents and warrants that its performance of the services described in this Agreement is authorized and does not violate any agreement or obligation between that Party and a third party.
11.8. Indemnity. Referral Partner agrees to indemnify and hold harmless Purple from any and all claims, demands, costs, expenses or liabilities, including reasonable attorneys’ fees, brought or imposed upon Purple, relating to or arising out of any acts, omissions, fraud, misrepresentation or wrongdoing by Referral Partner (or Referral Partner’s subcontractor) in connection with the performance of this Agreement.
11.9. Sub-contractors. Referral Partner may utilize the services of a subcontractor with the advance approval of Purple. Referral Partner is fully responsible for the performance of a subcontractor and shall ensure that a subcontractor complies with all of the terms and conditions of this Agreement.
11.10. Variation. No variation of this Agreement shall be valid unless it is in writing, it expressly states that it varies this Agreement and it is signed by authorised representatives of each Party.
11.11. Third Party. A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
11.12. Force Majeure. No delay, failure or default in the performance of any obligation under this Agreement shall constitute a breach of contract to the extent caused by circumstances beyond the reasonable control of the Party whose performance is affected.
11.13. Severance. If any term of this Agreement is or becomes unenforceable or invalid, such invalidity or unenforceability shall not affect the other terms of this Agreement which shall remain in full force and effect. If any term of this Agreement is or becomes invalid or unenforceable but would be valid or enforceable if some part of it were deleted or modified by the Parties, the term in question shall apply with such modification as may be necessary to make it valid and enforceable. The Parties shall act reasonably and in good faith to agree any such modification.
