1.1 The definitions and rules of interpretation in this clause apply in these terms and conditions.
Access Point means any item of access hardware (including signal boosters and repeaters) of a Customer at a Venue through which a User may access the internet.
Agreement means the agreement made between Purple and a Customer as constituted by the Customer’s acceptance of these terms and conditions by the placing of an Order.
Commencement Date the date of commencement of the Service.
Customer means a business customer to which Purple has granted a license to use the Service as identified in an accepted Order.
Customer Access Page means the access page (whether or not branded by the Customer) through which Users login in order to access the internet at a Venue.
Device means any computer, tablet, mobile telephone, smart phone or other electronic device through which a User accesses the Service.
EULA means the end user license agreement in place between Purple and the User at the relevant time.
Initial Term the period of 1 year ending on the first anniversary of the Commencement Date.
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.
Order means an individual purchase order relating to the licensing and use of the Service placed by the Customer via the Purple Portal.
Purple means Purple Wifi Limited (company registration number 6444980) whose registered office is at Meadowbank Offices, Junction 22 Business Park, Tweedale Way, Chadderton, Oldham, OL9 8EH, United Kingdom.
Purple Portal means the online portal provided by Purple through which the Customer may place Orders and administer the usage of the Service by Users.
Service means Purple’s hosted software solution which provides: (i) a Customer with a WiFi hotspot platform which may be used by Users to access the internet through one or more Access Points at a Venue; and (ii) customer analytic functionality and reports usable by Customer personnel.
Service Level Standards means the minimum levels of performance applicable to the Service and the Support Service set out in paragraphs 1.1 and 1.2 of the Schedule.
Service License means a non-exclusive term license in respect of a specified number of Access Points for use of the Service at the Venue(s) for the Service License Term.
Service License Fee means such fee, in whichever currency payable, as shall be payable by the Customer to Purple for the relevant Service License Term in respect of a Service License.
Service License Term means (as relevant) the Initial Term and each Extended Term.
Support Request means a written request from the Customer to provide an element of the Support Service.
Support Service means the support relating to the Service provided by Purple to the Customer.
User means any individual natural person who accesses the internet by means of a Device via a Customer Access Page through an Access Point at a Venue.
Venue means the Customer venue at which a User accesses the internet via the Customer Access Page through the Access Point(s).
1.2 Clause and schedule headings do not affect the interpretation of these terms and conditions.
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 subordinated legislation made under a statute is a reference to such statute, provision or subordinated legislation as in force at the date of this Agreement.
1.7. References to clauses and the Schedule are to the clauses of and the Schedule to these terms and conditions.
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. Commencement and duration of the Agreement
The Agreement shall commence on the Commencement Date. Unless terminated earlier in accordance with clause 6.2, the Agreement shall continue and remain in force for the Initial Term and shall, unless terminated in accordance with clause 6.1 or clause 6.2, automatically extend for consecutive periods of 1 year (each an Extended Term) upon the expiry of the Initial Term and each Extended Term.
4.1 Upon receipt of the Service License Fee, Purple shall be deemed to have granted to the Customer the Service License and Purple shall provide
the Service and the Support Service to the Customer for the duration of each Service License Term in accordance with the Service Level Standards.
4.2 The Customer acknowledges that title to the Service and to all property and Intellectual Property Rights provided to the Customer or otherwise arising under the Agreement, including but not limited to any software used by Purple in connection with the Service, together with all amendments, additions and enhancements to the Service, shall belong exclusively to and shall remain vested in Purple.
4.3.1 comply with and procure that its officers, employees, consultants and agents comply with; and
4.4 All data which is collected through the Service (Data) shall belong to and remain the property of Purple. Purple hereby grants to the Customer a non exclusive, royalty free license to access, use and exploit the Data until the expiry or termination of the Agreement provided that all such access, use and exploitation is in accordance with all applicable laws and regulatory requirements of any relevant jurisdiction.
4.5 The Customer undertakes to Purple:
4.5.1 not to provide or otherwise make available the Service in whole or in part in any form to any person other than Users without the prior written consent of Purple;
4.5.2 to maintain adequate security measures intended to safeguard the Service from access or use by unauthorised users;
4.5.3 to comply at all times with all applicable laws in the relevant jurisdiction;
4.5.4 to notify Purple as soon as reasonably practicable if it becomes aware of any use of the Service by any unauthorised user; and
4.5.5 not to do (or authorise any third party to do) any act which to the Customer’s knowledge would or might invalidate or be inconsistent with any Intellectual Property Rights of Purple and not knowingly omit (or authorise any third party to omit) to do any act which, by its omission, would have that effect or character.
4.6 The aggregate liability of each party to the other or to any third party (whether in contract, tort or otherwise) shall be limited to an amount equal to that proportion of the Service License Fee paid which is attributable to the calendar year within which such claim arises.
5. Service License Fee and payment
5.1 The Customer shall pay the Service License Fee:
5.1.1 in respect of the Initial Term, prior to the Commencement Date; and
5.1.2 in respect of each Extended Term, not later than 30 days prior to the expiration of the previous Service License Term.
5.2 If Purple ceases to provide the Service due to non-payment of the Service License Fee or disables access to the Service pursuant to clause 3 and the Customer subsequently requests that the Service is reactivated then Purple shall be entitled to be paid a reactivation fee prior to the reactivation of the Service.
5.3 Purple reserves the right to claim interest on a late payment under the Late Payment of Commercial Debts (Interest) Act 1998.
6.1 Either party may terminate the Agreement at any time upon not less than 30 days’ notice in writing to the other, such notice to expire upon the expiry of a Service License Term.
6.2 The Agreement may be terminated:
6.2.1 by Purple immediately if the Customer, in the reasonable opinion of Purple, acts in a way that causes or is likely to cause damage to Purple’s reputation;
6.2.2 by Purple immediately if the Customer shall have failed to pay the Service License Fee in accordance with clause 5.1;
6.2.3 by either party immediately on giving written notice to the other where such other party has committed a material breach of the 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
6.2.4 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.
6.3 Upon termination of the Agreement for any reason:
6.3.1 Purple will cease to provide the Service to the Customer; and
6.3.2 all amounts owed by the Customer to Purple shall become immediately due and payable.
7. Intellectual property
7.1 Where Purple provides to the Customer software which enables Users to use the Service, Purple grants to the Customer a non-exclusive, non-transferable licence to allow Users to use such software solely for that purpose. The Customer agrees that it shall not, and shall procure that no User shall, without Purple’s prior written consent, copy, decompile or modify such software, nor copy any manuals or documentation (except as permitted by law).
7.2 The Customer shall indemnify Purple for any breach of clause 7.1.
8.1 Each of the parties agrees that the commercial terms of any Agreement and any information relating to the business of the other which is passed to it by the other in connection with the Agreement shall, at all times, be kept and shall remain confidential.
8.2 The confidential information referred to in clause 8.1 may be disclosed by a party 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 the Agreement or for the purposes of professional advice, subject to the relevant party 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 parties unless and to the extent that such disclosure is required by law.
8.3 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 8.1.
8.4 The obligations of confidentiality in this clause 8 shall continue to apply after termination of this Agreement.
9.1 Any 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 any Agreement or its subject matter or formation (including non-contractual disputes or claims).
9.2 The parties agree to comply with all applicable laws relating to their respective activities and obligations under the Agreement.
9.3 All notices which are required to be given under the Agreement shall be in writing and shall be sent either by email to such email address as the recipient may designate or by first class pre-paid recorded delivery post or airmail to the registered office address of the recipient or such other address as the recipient may designate by notice given to the sender. 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.
9.4 The Customer may not assign any provision of the Agreement without the prior written consent of Purple.
9.5 A failure to exercise or a delay in exercising a right or remedy provided by the 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 the 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.
9.6 The terms of any 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 Customer or would otherwise be implied or incorporated into such 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.
9.7 No variation of any Agreement shall be valid unless it is in writing, it expressly states that it varies such Agreement and it is signed by authorised representatives of each party.
9.8 A person who is not a party to the Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of such Agreement.
9.9 No delay, failure or default in the performance of any obligation under any Agreement shall constitute a breach of contract to the extent caused by circumstances beyond the reasonable control of the party whose performance is affected but nothing in this clause shall excuse the Customer from any payment obligations under such Agreement.
9.10 If any term of any Agreement is or becomes unenforceable or invalid, such invalidity or unenforceability shall not affect the other terms of such Agreement which shall remain in full force and effect. If any term of any 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.
Service Level Standards
1. Service levels and response times
1.1 Purple shall use its reasonable endeavours to ensure an uptime rate of not less than 99.9%.
1.2 Purple shall use its reasonable endeavours to provide the following response times:
1.2.1. for any issue which results in all Users being unable to access the Service (a Critical Level Issue), within 75 minutes after receiving a Support Request;
1.2.2. for any issue which results in the Service being substantially diminished for Users (a High Level Issue), within 225 minutes after receiving a Support Request; and
1.2.3. for any issue which results in the Service being impaired but not substantially diminished for Users (a Low Level Issue), within 50 hours after receiving a Support Request.
1.3 Purple shall refund such proportion of Service License Fee which is applicable to Downtime which exceeds 0.1%.
1.4 For the purposes of this Schedule, Downtime refers to one or more whole periods of 30 minutes duration commencing upon the submission by the Customer of a Support Request informing Purple that there is a Critical Level Issue (as defined in paragraph 1.2.1).
1.5 The response times set out in paragraph 1.2 refer only to the time within which Purple shall respond to a Support Request. Purple gives no guarantee as to the time it may take to resolve any Critical Level Issue, High Level Issue or Low Level Issue save that it shall use its reasonable endeavours to resolve all such issues as soon as reasonably practicable.
1.6 Paragraph 1.3 shall not apply where and to the extent that Downtime arises from:
1.6.1. Scheduled Service Downtime (as defined in paragraph 2.1); or
1.6.2. failure of the Customer’s own computer systems, network or software; or
1.6.3. failure by the Customer, its employees, subcontractors, agents or other similar third parties to comply with any reasonable instructions issued by Purple; or
1.6.4. breach by the Customer or a User of any terms or restrictions applicable to the Service including, but not limited to, exceeding data storage or transfer limitations; or
1.6.5. any factor which is beyond the reasonable control of Purple including, but not limited to, failure of social media platform providers for such platforms used to deliver the Service.
2. Scheduled Service Downtime
2.1 Purple may, from time to time, require Downtime in order to perform maintenance and upgrades on its computer systems, network and infrastructure (Scheduled Service Downtime).
2.2 Purple shall use reasonable endeavours to ensure that any period of Scheduled Service Downtime causes minimal disruption to the Service and is as brief as is reasonably possible.
2.3 Purple shall notify the Customer of Scheduled Service Downtime no later than 24 hours prior to its commencement. Such notice shall include an outline summary of the work to be performed during, and the estimated duration of, the Scheduled Service Downtime.
2.4 Purple shall use reasonable endeavours to perform maintenance and upgrades without incurring any Scheduled Service Downtime.
3. Service and Performance Monitoring
In the event that the Service is not carried out in accordance with the Service Level Standards, the Customer’s remedies shall be limited to those set out in paragraph 1.3.