Subscription Agreement
PURPLEAPRON™ SUBSCRIPTION TERMS (EMPLOYERS)
PURPLEAPRON is a portal for the hospitality and service trade.
1. DEFINITIONS
1.1 The definitions and rules of interpretation in this clause apply in these subscription terms:
Subscriber Users means the Subscriber or an employee, franchisee, agent or independent contractor of the Subscriber who, in accordance with clause 3, is duly authorised by the Subscriber to use the Software;
Business Days means a day other than a Saturday, Sunday or public holiday in the UK;
Employee Users means the users of the Software who seek employment and the use of such term “Employee” shall not be deemed to give rise to any contract of employment where no such contract is fully intended by both parties;
Confidential Information means information that is proprietary or confidential to either party and which is specified as confidential or which a reasonably prudent person should know is expected to be treated as confidential;
Parties means the Subscriber and PurpleApron, and party means either of them.
Subscriber means the employer company, organisation or individual who pays a Subscription Fee to access the Software;
Subscriber Data has the meaning given to it in clause 6;
Subscription Fee means the fee to be paid by the Subscriber to use the Software in accordance with clause 5;
Subscription Period means the period of 12 months and, where applicable, any further Subscription Period entered into by the Subscriber;
Software means the PurpleApron software application and website accessible at www.purpleapron.com (Website), which provide a search, recruitment and personnel management system to the Subscriber;
Subscription(s) means the subscription(s) purchased by the Subscriber which entitle(s) Subscriber Users to access and use the Software.
1.2 The clause headings are included for convenience only and shall not affect the interpretation of this Agreement; use of the singular includes the plural and vice versa; use of any gender includes the other genders; any reference to a statute, statutory provision or subordinate legislation shall (except where the context otherwise requires) be construed as referring to such legislation as amended, extended, re-enacted or enforced from time to time; any phrase introduced by the term 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. PURPLEAPRON SUBSCRIPTION TERMS
2.1 These PurpleApron subscription terms (Subscription Terms) form a legal agreement between the Subscriber and PurpleApron Limited, a limited company incorporated in Northern Ireland (NI625566) (PurpleApron).
2.2 By purchasing Subscriptions and using the Software, the Subscriber agrees to be legally bound by these Subscription Terms.
2.3 PurpleApron may modify these Subscription Terms from time to time at its sole discretion. PurpleApron shall notify the Subscriber of any material changes and the Subscriber’s continued use (or use by a Subscriber User) of the Software following notification of changes will be deemed acceptance of all such changes.
2.4 A separate legal contract exists between the Subscriber and the Employee Users. PurpleApron provides the platform which connects workers offering services with the businesses needing those services in a simple and efficient manner but has no responsibility for issues with that employment or engagement including, but not limited to, any disputes arising between a Subscriber and an Employee User. PurpleApron may provide a service which automates the payment process for some work assignments through its system rather than an Employee User being paid directly by the Subscriber but this does not, nor shall it be deemed to, constitute PurpleApron, an employer of Employee User. Any payment which PurpleApron makes to Employee Users on behalf of the Subscriber shall be on the basis of an independent contractor relationship and not as an employer.
3. SUBSCRIPTIONS
3.1 Subject to the Subscriber’s payment of the Subscription Fee, PurpleApron grants to the Subscriber the right to use the Software and access those areas of the Software which are designed to be accessible only to Subscribers in accordance with these Subscription Terms.
3.2 The Subscriber’s right to use the Software as described above includes the right to make such Software available to its Subscriber Users provided that the Subscriber:
3.2.1 remains liable for the acts and omissions of its Subscriber Users as if they were its own; and
3.2.2 shall cease to make the Software available to any Subscriber User immediately on that party ceasing to be a Subscriber User.
3.3 PurpleApron hereby grants the Subscriber a non-exclusive, non-transferable licence to use, and permit its Subscriber Users to use, the Software during the Subscription Period in accordance with these Subscription Terms and for no other purpose whatsoever. Any third party service provider of the Subscriber who is required by the Subscriber to use the Software in order to create an interface between the Subscriber’s software applications and the Software will be entitled to use the Software only for the limited purpose of creating such interface(s).
3.4 The Subscriber undertakes that:
3.4.1 it shall permit PurpleApron to audit the provision of and access to the Software and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Subscriber’s normal conduct of business; and
3.4.2 if any audit reveals that the Software is being used at levels above the Subscription it has purchased and, as a result, the Subscriber has underpaid Subscription Fees to PurpleApron, then without prejudice to PurpleApron’s other rights, the Subscriber shall pay to PurpleApron an amount equal to such underpayment within ten Business Days of the date of the relevant audit.
3.5 The rights provided under this clause are granted to the Subscriber only, and shall not be considered granted to any subsidiary or holding company of the Subscriber.
3.6 In consideration of the Subscriber agreeing to be bound by these Subscription Terms PurpleApron may, at its sole discretion, grant a trial Subscription to a Subscriber, solely for the purposes of the Subscriber trying out the Software.
4. ADDITIONAL SUBSCRIPTIONS
4.1 The Subscriber may, from time to time during the Subscription Period, purchase additional Subscriptions and other additional features. PurpleApron shall grant access to the Software to any additional features and their Subscriber Users in accordance with these Subscription Terms.
4.2 If the Subscriber wishes to purchase additional Subscription features, the Subscriber can do so through the Website or other interface which PurpleApron provides.
4.3 Charges for additional Subscriptions or features will be applied automatically to the Subscriber’s billing. If such additional Subscriptions are purchased part way through the Subscription Period, such fees shall be pro-rated for the remainder of the then current Subscription Period.
5. SUBSCRIPTION FEES AND PAYMENT
5. 1 PurpleApron sets out its Subscription plans and pricing on its Website. Pricing for a Subscription plan shall be indicated by PurpleApron prior to the purchase of any Subscription.
5.2 The Subscriber shall pay the Subscription Fee to PurpleApron for the Subscriptions as
A afixed monthly fee during the Subscription Period, payable in advance from the date of purchasing first Subscription (subject to any applicable trial period) and each Subscription Period thereafter; and
5.3 The Subscriber shall provide to PurpleApron valid, up-to-date contact and billing details and hereby authorises PurpleApron to bill, by the applicable payment method, for Subscription Fees.
5.4 If PurpleApron has not received payment of any element of the Subscription Fee by the due date, and without prejudice to any other rights or remedies of PurpleApron:
5.4.1 PurpleApron may, without liability to the Subscriber, disable the Subscriber’s passwords, accounts and access to all or part of the Software and PurpleApron shall be under no obligation to provide any or all of the Software while payment is outstanding; and
5.4.2 interest shall accrue on such due amounts at an annual rate equal to 4% over the then current base lending rate of Danske Bank, commencing on the due date and continuing until fully paid, whether before or after judgment.
5.5 PurpleApron shall be entitled to increase the Subscription Fees and the fees payable in respect of additional Subscriptions purchased pursuant to clause 4 at the start of each new Subscription Period upon 5 days’ prior notice to the Subscriber and any pricing previously indicated by PurpleApron shall be deemed amended.
5.6 All amounts of fees stated or referred to in these Subscription Terms are non-cancellable and non-refundable.
6. SUBSCRIBER DATA RELATING TO ITS CUSTOMERS
6.1 If PurpleApron processes any personal data on the Subscriber’s behalf (Subscriber Data) when performing its obligations under these Subscription Terms, the parties record their intention that the Subscriber shall be the data controller and PurpleApron shall be a data processor and in any case:
6.1.1 the Subscriber acknowledges and agrees that the personal data may be transferred or stored outside the European Economic Area or the country where the Subscriber and the Subscriber Users are located;
6.1.2 the Subscriber shall ensure that the Subscriber is entitled to transfer the relevant personal data to PurpleApron so that PurpleApron may lawfully use, process and transfer the personal data in accordance with these Subscription Terms on the Subscriber’s behalf;
6.1.3 the Subscriber shall 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 legislation;
6.1.4 PurpleApron shall process the personal data only in accordance with these Subscription Terms and any lawful instructions reasonably given by the Subscriber from time to time; and
6.1.5 each party shall take appropriate technical and organisational measures against unauthorised or unlawful access to or processing of the personal data or its accidental loss, destruction or damage.
7. SUBSCRIBER OBLIGATIONS
7.1 The Subscriber shall not access, store, distribute or transmit any viruses or any material during the course of its use of the Software that:
7.1.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
7.1.2 facilitates illegal activity;
7.1.3 depicts sexually explicit images;
7.1.4 promotes unlawful violence;
7.1.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
7.1.6 in a manner that is otherwise illegal or causes damage or injury to any person or property.
7.2 The Subscriber shall not, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
7.2.1 and except to the extent expressly permitted under these terms, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit or distribute all or any portion of the Software in any form or media or by any means; or
7.2.2 attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
7.2.3 access all or any part of the Software in order to build a product or service which competes with the Software and PurpleApron’s business in general; or
7.2.4 licence, sell, rent, lease, transfer, assign, distribute, display, disclose or otherwise commercially exploit, or otherwise make the Software available to any third party except the Subscriber Users; or
7.2.5 attempt to obtain, or assist third parties in obtaining, access to the Software, other than as provided in these Subscription Terms.
7.3 The Subscriber shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software and, in the event of any such unauthorised access or use, promptly notify PurpleApron.
7.4 PurpleApron reserves the right, without liability or prejudice to its other rights to the Subscriber, to disable the Subscriber’s account immediately upon becoming aware of breach by the Subscriber, or its Subscriber Users, of this clause 7.
8. ACCOUNT PERMISSIONS AND SECURITY
8.1 When the Subscriber subscribes to use the Software it is creating an account with PurpleApron.
8.2 If the Subscriber has been issued with or has created access code(s), such as user ID or passwords, to access restricted areas of the Software, it must keep all access codes secret and must not allow any other person or organisation to use these to access the Software or section of the Software, as applicable.
8.3 The Subscriber is responsible for all activity from its account.
8.4 The Subscriber must notify PurpleApron immediately of any suspected or actual unauthorised use by a third party of Subscriber access codes. PurpleApron reserves the right to monitor and record Subscriber use of the Software.
9. INTELLECTUAL PROPERTY
9.1 The Subscriber acknowledges and agrees that PurpleApron and/or its licensors own all intellectual property rights in the Software. Except as expressly stated herein, these Subscription Terms do not grant the Subscriber any rights to, or in, patents, copyrights, database rights, trade secrets, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Software.
9.2 PurpleApron confirms that is has all the rights in relation to the Software that are necessary to grant all the rights it purports to grant under, and in accordance with, these Subscription Terms.
9.3 In the event that the Subscriber’s use of the Software is held by a court of competent jurisdiction or is believed by PurpleApron to infringe the intellectual property rights of a third party, PurpleApron shall have the option, acting at all times reasonably and in good faith, as soon as reasonably practicable to modify or amend the Software or the infringing part(s) thereof in order to avoid any further infringement, procure for the Subscriber the right to continue using the Software or infringing part(s) thereof, and/or substitute other software (and this shall be PurpleApron’s sole liability and the Subscriber’s sole and exclusive remedy for infringement of intellectual property rights of any third party).
10. PRIVACY
10.1 The Subscriber’s use of the Software, including any registration process, may involve the Subscriber’s disclosure to PurpleApron of personal data, other than Subscriber Data, which is dealt with at clause 6 above.
10.2 The Subscriber consents to the use of such personal data in accordance with PurpleApron’s Privacy and Cookies Policy.
11. CONFIDENTIALITY
11.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under these Subscription Terms. A party’s Confidential Information shall not be deemed to include information that:
11.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
11.1.2 was in the other party’s lawful possession before the disclosure;
11.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
11.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence; or
11.1.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
11.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of these Subscription Terms.
11.3 Each party shall take all reasonable steps to ensure that the Confidential Information to which it has access is not disclosed by its Subscriber Users in violation of these Subscription Terms.
11.4 This clause shall survive termination of these Subscription Terms, howsoever arising.
12. WARRANTIES AND LIMITATION OF LIABILITY
12.1 PurpleApron is not responsible or liable for the Subscriber’s actions or other material the Subscriber may provide through its use of the Software. PurpleApron has no obligation or duty to monitor or moderate the information presented by the Subscriber through use of the Software.
12.2 PurpleApron aims to work with reputable businesses but the facilitation of recruitment by a Subscriber business through the Software does not constitute or imply an endorsement or recommendation by PurpleApron of such Subscriber business.
12.3 THE SOFTWARE IS PROVIDED "AS IS" AND “AS AVAILABLE” AND TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, PURPLEAPRON DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS WHATSOEVER (INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE OR NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) WITH REGARD TO THE INFORMATION OR SERVICE PROVIDED BY THE SUBSCRIBER’S USE OF THE SOFTWARE. PURPLEAPRON SHALL NOT BE LIABLE FOR ANY COST, LOSS OR DAMAGE ARISING EITHER DIRECTLY OR INDIRECTLY FROM ANY EMPLOYMENT OR ENGAGEMENT BETWEEN THE SUBSCRIBER AND AN EMPLOYEE USER.
12.4 In the highly unlikely event of PurpleApron doing something negligent which directly results in the Subscriber’s personal injury or death, PurpleApron cannot exclude or limit this liability. PurpleApron also does not exclude or limit liability for fraud, wilful default or gross negligence or any other liability which cannot be excluded under applicable law.
12.5 Subscriber agrees that it uses the Software at its own risk and PurpleApron shall in no event be liable for any direct, indirect, incidental, special or consequential loss or damage (including without limitation loss of income, data, contracts, goodwill, profit, reputation, loss of service or downtime of the Software) arising out of or related to:
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any access to, use of or inability to use the Software; or
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any person or entity’s reliance on the information presented.
12.6 Notwithstanding clause 12.6 above, if for some reason PurpleApron is liable to the Subscriber, PurpleApron’s aggregate liability in respect of any loss of damage suffered by the Subscriber shall not exceed an amount equal to the Subscription Fee paid by the Subscriber in the 12 months preceding the month in which the loss or damage occurred. The Subscriber acknowledges that this limitation of liability is reasonable.
12.7 The Subscriber is responsible for making sure that the computer system used by it, and its Subscriber Users, meets the technical specification necessary to use the Software and is compatible with the Software.
12.8 PurpleApron does not guarantee that the functions or materials accessible from or contained in the Software will be uninterrupted or error free, that defects will be corrected, or that the Software or the server that makes it available are free of viruses or faults.
12.9 The Subscriber shall indemnify and keep indemnified PurpleApron against any and all loss, liability, costs or expense (including reasonable legal expenses) howsoever incurred by PurpleApron and whether directly or indirectly arising out of or from any breach of the terms of these Subscription Terms by the Subscriber or its Subscriber Users.
12.10 If the Subscriber is dissatisfied with any portion of the Software, or with any of these Subscription Terms, the Subscriber’s sole and exclusive remedy is the discontinuation of its use of the Software.
13. TERM AND TERMINATION
13.1 These Subscription Terms shall, unless terminated as provided in this clause, endure for the Subscription Period and, thereafter, these Subscription Periods shall be automatically renewed on a rolling basis for successive periods of 12 months or such period as otherwise agreed between the parties, unless:
13.1.1 the Subscriber closes its account, in which case these Subscription Periods shall terminate; or
13.1.2 otherwise terminated in accordance with the provisions of these Subscription Terms.
13.2 PurpleApron may terminate these Subscription Terms at any time by giving 5 days’ prior written notice.
13.3 PurpleApron may terminate these Subscription Terms and disable Subscriber accounts immediately if the Subscriber breaches any of the Subscription Terms or behaves in a way which PurpleApron, in its sole discretion, believes could damage PurpleApron’s reputation.
13.4 On termination of these Subscription Terms for any reason:
13.4.1 all licences and rights granted under these Subscription Terms shall immediately terminate;
13.4.2 each party shall make no further use of any items, including the Software, belonging to the other party; and
13.4.3 the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
14. GENERAL
14.1 Force Majeure
PurpleApron shall have no liability to the Subscriber under these Subscription Terms if it is prevented from or delayed in performing its obligations under these Subscription Terms, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunication network, act of God, war, riot, civil commotion, malicious damage, compliance with any law of governmental order, rule, regulation or direction, accident, breakdown or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Subscriber is notified of such an event and its expected duration.
14.2 Waiver
A waiver of any right under these Subscription Terms is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
14.3 Severance
14.3.1 If any provision of these Subscription Terms is found by any court of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
14.3.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
14.4 Entire Agreement
14.4.1 These Subscription Terms and any documents referred to in them, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
14.4.2 Each of the parties acknowledges and agrees that in entering into these Subscription Terms it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to these Subscription Terms or not) relating to the subject matter of these Subscription Terms, other than as expressly set out in these Subscription Terms.
14.5 Assignment
The Subscriber shall not, without the prior written consent of PurpleApron, assign, transfer, charge, sub-contract or deal in any other manner with any or all of its rights or obligations under these Subscription Terms.
14.6 No Partnership or Agency
Nothing in these Subscription Terms is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
14.7 Third Party Rights
These Subscription Terms do not confer any rights on any person or party (other than the parties to these Subscription Terms and, where applicable, their successors and permitted assigns).
15. LAW AND JURISDICTION
These Subscription Terms shall be construed in accordance with law of Northern Ireland and the parties hereby submit to the exclusive jurisdiction of the courts of Northern Ireland to settle any disputes which may arise in connection with these Subscription Terms. Those who choose to access the site from other locations do so on their own initiative and are responsible for compliance with applicable local laws.