Dated: 19th December 2022
The following definitions and rules of interpretation apply in these Terms.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Charges: the charges payable by the Customer for the supply of the Services as set out in the Specification and payable in accordance with clause 5.
Commencement Date: has the meaning given in clause 2.2.
Contract: a contract between Prop Up and the Customer for the supply of Services in accordance with these Terms and the applicable Specification.
Customer: the person or firm who instructs Prop Up to provide the Services as set out in the Specification.
Customer Default: has the meaning set out in clause 4.2.
Inventory: the inventory, as set out in the Specification, which may be updated by the parties from time to time, listing specific Materials.
Materials: any Customer items which shall pass to Prop Up in connection with the Services in accordance with the Contract. Order: the Customer’s written acceptance of a Specification containing a quotation provided by Prop Up.
Prop Up: Prop Up Project CIC registered in England and Wales with company number 13595873.
Services: the services supplied by Prop Up to the Customer as set out in the Specification.
Specification: the description or specification of the Services provided by Prop Up to the Customer.
Terms: these terms and conditions as amended from time to time in accordance with clause 11.3.
(a) A reference to legislation or a legislative provision:
(i) is a reference to it as amended, extended or re-enacted from time to time; and
(ii) shall include all subordinate legislation made from time to time under that legislation or legislative provision.
(b) Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(c) A reference to writing or written includes email.
Basis of Contract
The Order constitutes an offer by the Customer to purchase Services in accordance with these Terms.
The Order shall only be deemed to be accepted when both parties sign a Specification at which point and on which date the Contract shall come into existence (Commencement Date).
Any samples, drawings, descriptive matter or advertising issued by Prop Up, and any descriptions or illustrations contained in Prop Up’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
These Terms apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing unless otherwise agreed by Prop Up in a written instrument.
Supply of Services
Prop Up shall supply the Services to the Customer in accordance with the Contract in all material respects.
Prop Up shall use all reasonable endeavours to meet any performance dates specified in an Specification, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
Prop Up reserves the right to amend the Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services and Prop Up shall notify the Customer in any such event.
Title in the Materials shall pass to Prop Up as soon as they are collected by Prop Up in accordance with the Services.
The Customer shall indemnify Prop Up against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and other reasonable professional costs and expenses) suffered or incurred by Prop Up arising out of or in connection with:
(a) any claim made against Prop Up by a third party arising out of, or in connection with, the supply of the Materials; and
(b) any claim made against Prop Up by a third party for death, personal injury or damage to property arising out of, or in connection with, defective Materials.
The Customer shall:
(a) co-operate with Prop Up in all matters relating to the Services;
(b) provide Prop Up, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by Prop Up;
(c) provide Prop Up with such information and materials as Prop Up may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
(d) prepare the Customer’s premises for the supply of the Services; and
(e) comply with any additional obligations as set out in the Specification.
If Prop Up’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) without limiting or affecting any other right or remedy available to it, Prop Up shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays Prop Up’s performance of any of its obligations; and
(b) the Customer shall reimburse Prop Up on written demand for any costs or losses sustained or incurred by Prop Up arising directly or indirectly from the Customer Default.
Charges and Payment
The Charges for the Services shall be as set out by Prop Up in a quotation to the Customer.
The Customer shall pay each invoice submitted by Prop Up:
(a) within 14 days from receipt of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by Prop Up, and
time for payment shall be of the essence of the Contract.
If the Customer fails to make a payment due to Prop Up under the Contract by the due date, then, without limiting Prop Up’s remedies under clause 9, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 5.3 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
The parties shall comply with their data protection obligations as set out in the Data Protection Act 2018 and the General Data Protection Regulation (Regulation (EU) 2016/679) and any other applicable data protection legislation in England and Wales, including as may be amended or replaced from to time.
During this agreement the Customer shall maintain in force the following insurance policies with reputable insurance companies:
(a) Professional indemnity insurance for not less than £500,000 per claim; and (b) product liability insurance for not less than £500,000 per claim.
Limitation of Liability
References to liability in this clause 8 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by negligence; and
(b) fraud or fraudulent misrepresentation.
Subject to clause 8.2, Prop Up’s total liability to the Customer for direct losses shall not exceed the loss in Charges in that Contract.
Subject to clause 8.2, Prop Up shall not be liable to the Customer, whether in contract, tort (including negligence), misrepresentation, restitution or otherwise for any:
(a) damage caused by Prop Up to any Customer property in the reasonable performance of the Services;
(b) loss of profits;
(c) loss of sales or business;
(d) loss of agreements or contracts;
(e) loss of anticipated savings;
(f) loss of use or corruption of software, data or information;
(g) loss of or damage to goodwill; or
(h) indirect or consequential loss,
suffered by the Customer that arises under or in connection with the Contract.
This clause 8 shall survive termination of the Contract.
Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so; or 7
(b) the other party’s financial position deteriorates to such an extent that in the terminating party’s reasonable opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
Without affecting any other right or remedy available to it, Prop Up may terminate the Contract or suspend the supply of Services under the Contract or any other contract between the Customer and Prop Up with immediate effect by giving written notice to the Customer if:
(a) the Customer commits material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so; or
(b) the Customer fails to pay any amount due under the Contract on the due date for payment.
Consequences of Termination
On termination of the Contract the Customer shall immediately pay to Prop Up all of Prop Up’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Prop Up shall submit an invoice, which shall be payable by the Customer immediately on receipt.
Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination.
Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
Force Majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
Publicity and Marketing. The Customer gives Prop Up consent to use the Customer’s name for the purpose of promoting, publicising and marketing Prop Up’s services.
Variation. Except as set out in these Terms, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
Severability. If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable, it shall be deemed to be severable and the remaining provisions of the Contract and the remainder of such provision shall remain in full force and effect.
No Partnership. Nothing in the Contract is intended to or shall operate to constitute or create a partnership between the parties, or to authorize either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other party in any way.
Anti-Bribery. Both parties shall comply with the Bribery Act 2010 and all applicable anti-bribery and corruption laws and legislation anywhere in the world.
Rights of Third Parties. The parties do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
Notice. Notice shall be in writing, sent for the attention of the person, and to the address given in the Contract (or such other contact details as notified to the other party) and shall be delivered personally, or sent by pre-paid, first class post or recorded delivery. A notice is deemed to have been received: (i) if delivered personally, at the time of delivery; (ii) in the case of pre-paid first class post or recorded delivery, 48 hours from the date of posting; and if deemed receipt under this clause is not within business hours (9.00 am to 5.30pm Monday to Friday excluding public holidays in the country of receiver), then receipt shall be deemed at 9.00am on the first Business Day following delivery.
Confidentiality. All documents and information provided to Prop Up in the course of the Services and all confidential information concerning Customer or any of Customer’s activities shall be treated by Prop Up as confidential, unless otherwise agreed by the Customer.
Governing Law and Jurisdiction.
(a) The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.
(b) Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including noncontractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.