Membership Terms and Conditions
EFFECTIVE 12TH MAY 2017
When we refer to “you” in these Terms and Conditions, this is taken to mean the business or organisation on behalf of whom you are setting up this Business Member account and, where the context permits, you personally. You confirm and represent that you have authority to bind the business on whose behalf you are setting up this Business Member account and that you are an owner of that business and/or director of that business.
In setting up a Business Member account, you agree (and you confirm that the Business Member agrees) that the Business Member will be bound by these Business Terms and the documents and other terms referred to in them. You agree that these Terms and Conditions shall apply to your use of the PACT System and our Site and any contract where we supply goods (if any) and/or services to you via the PACT System or Site (Contract).
“Prosper²” means the distinctive membership based business cub known as Prosper².
The fees (Fees) for services we offer, or for services we offer as agent for third parties (together, Services) are available on our Site, or they will be quoted to you before you place an order. You may pay the Fees by BACS transfer. When ordering Services, our order process allows you to check and amend any errors before submitting your order to us. Please take the time to read and check your order at each page of the order process. We shall not be responsible for any errors or their consequences.
We shall submit to you a pro-forma invoice in anticipation of an upcoming Fee invoice, against which you shall remit funds in advance of the Fee invoice. Upon receipt of such funds we shall promptly issue a receipted Fee invoice to you. Funds remitted against pro-forma invoices shall be held by us on account of Fees.
If you place an order for Services, you will receive an e-mail from us acknowledging that we have received your order and asking for you to arrange payment (either in full by BACS or instalments by standing order depending on the Service ordered). Please note that this does not mean that your order has been accepted. Acceptance of your order takes place as referred to below. We will follow the same process where we offer Services as agent for a third party. If you do not make payment within 21 Business Days, we will automatically cancel your order without any responsibility on our part.
Once payment for your order has been received, we will confirm acceptance of your order by sending you an e-mail stating that the order has been processed, at which point the Contract between us, or between you and the third party via our agency (as applicable), for the supply of the Services, will be formed.
SUPPLY OF SERVICES
We shall use reasonable endeavours to ensure that the Services are supplied to you as soon as is possible after your order is accepted, but we do not guarantee that the Services shall be provided within any specific timeframe. If some or all of the Services cannot be supplied to you, for example because they are no longer available or because your requested supply date cannot be met, we will inform you of this by e-mail and we will not process your order (or we will only process the part relating to the Services which can be supplied). If you have already paid for the Services, we will arrange for your payment (in whole or part, as applicable) to be refunded to you.
Subject to any specific terms we, or the organisations on behalf of whom we act as agent, apply to individual Services, we will use reasonable endeavours to ensure that internet-based Services are available 24 hours a day, seven days a week, although we make no warranties or guarantees in this regard. In particular, Services may not be available during: planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am UK time; and unscheduled maintenance, in which case we will give advance warning by posting a notice on our Site.
YOUR TRADING VIA THE PACT SYSTEM
When you engage in business with any person via the PACT System, the resulting contract will be between you and that person and as such, that transaction will be subject to the relevant selling terms and conditions of supply offered by that person, over which we have no control. We therefore require you to conduct business in a Fair and Reasonable manner and not in a way, which could bring us or the PACT System into disrepute. Fair and Reasonable shall mean in a manner and to a standard that would be expected of an honest user of the PACT System and provided services are in accordance with the highest industry standards.
You warrant, represent and undertake that you will comply with all applicable laws, rules and regulations (Rules) (including but not limited to Rules relating to copyright and trademarks) when ordering Services or using the PACT System or Site to advertise your business or sell and supply goods and/or services (including without limitation the obligation to display all prices as VAT inclusive prices where selling to consumers). You shall indemnify us, keep us indemnified in full and hold us harmless, against all liabilities, costs, expenses, damages and losses including (but not limited to) any direct, indirect or consequential losses, loss of profit, loss of opportunity, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses suffered or incurred by us arising out of or in connection with your failure to comply with such Rules.
TERMINATION AND SUSPENSION OF BUSINESS MEMBERSHIP
We may immediately terminate your membership of Prosper² where we discover any of the below, or we may immediately prevent your access to the Pact system/Site pending investigation at any time where we have a reasonable belief of:
– any abuse or attempted abuse of the Network; and
– any breach or attempted breach of these Terms and Conditions and/or the documents referred to in them.
Business Membership will be automatically suspended:
– in the event that you are in arrears with payment of the Fees and you have not paid them by the expiry of the warning notice we send to you; or
– during an investigation under the provisions herein.
You may terminate Business Membership at any time by writing to us at email@example.com, giving us at least 4 weeks’ notice provided you do not have any outstanding indebtedness to us.
On suspension of your membership, you will not be able to advertise your business or offer goods and/or services via the PACT System/Site (we will remove visibility of the products and/or services from your online shop). We will also suspend the functionality of your account. In each case, we reserve the right to hide your profile. If suspension continues for a period of 28 days, or if we determine that termination is appropriate due to investigation hereunder, we will terminate your membership, in which case the provisions of these Terms and Conditions relating to what happens on termination of your membership will apply.
On termination (whether by you or by us) of Business Membership for any reason, your profile will be removed from the PACT System/Site.
Any clause in these Terms and Conditions, which expressly or would by implication survive termination of the relationship between us, shall do so in full force and effect.
The material displayed on our Site is provided for information purposes only. Such material and use of the PACT System and the Site generally are provided without any guarantees, conditions, representations or warranties as to their accuracy, efficacy or uninterrupted use. Use of the PACT System and the Site generally are provided on an “as is” basis. We:
– do not warrant that your use of the Services or the PACT System/Site will be uninterrupted or error-free or suitable for your purposes; and
– are 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 you acknowledge that the Services, the PACT System and our Site generally may be subject to limitations, delays and other problems inherent in the use of such communications facilities for which we shall not be responsible.
To the extent permitted by law, we and other companies in our group of companies hereby expressly exclude:
– all conditions, warranties and other terms which might otherwise be implied by statute, common law or the law of equity, including where permitted in respect of consumer protection legislation;
– any liability under these Terms and Conditions if we are prevented from or delayed in performing our obligations hereunder, or from carrying on our business, by acts, events, omissions or accidents, or circumstances beyond our reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving our workforce or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors; and
– any liability for any direct, indirect or consequential loss or damage incurred by your use of the Services, the PACT System and the Site generally or in connection with the use, inability to use, or results of the use of the Services, our Site and the PACT System, any websites linked to them, any materials posted on them and any transactions between you and third parties via the PACT System, including without limitation:
loss of income or revenue;
loss of business;
loss of opportunity;
loss of profits or contracts;
loss of anticipated savings;
loss of data;
loss of goodwill;
loss or corruption of data, information or software;
wasted management or office time, and
whether caused by tort (including negligence), breach of contract or otherwise, even if foreseeable, provided that this condition shall not prevent claims for loss of or damage to your tangible property or any other claims for direct financial loss that are not excluded by any of the categories set out above.
We do not exclude liability for death or personal injury arising from our negligence, nor our liability for fraudulent misrepresentation, nor any other liability which cannot be excluded or limited under applicable law.
Our total liability to you in respect of all losses arising under or in connection with your use of the Site (including without limitation, the PACT System), whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the amount of Fees you have paid to us in the 12 months immediately preceding the date the liability arose.
COMMUNICATIONS BETWEEN US
When we refer to “in writing”, this will include e-mail.
Any notice or other communication given by you to us, or by us to you, under or in connection with these Terms and Conditions shall be in writing and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service or e-mail.
A notice or other communication shall be deemed to have been received: if delivered personally, when left at our registered office; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or if sent by e-mail, one Business Day after transmission.
In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee.
The provisions of clauses 25 to 28 (inclusive) shall not apply to the service of any proceedings or other documents in any legal action.
We may revise these Terms and Conditions at any time. You are expected to check this page on our Site from time to time to take notice of any changes we make, as they are binding on you.
We may transfer or assign our rights and obligations under these Terms and Conditions to another organisation.
You may only transfer your rights or your obligations under these Terms and Conditions to another person if we agree in writing.
No person other than the relevant Business Member and us shall have any rights to enforce any of these Terms and Conditions.
Each of the clauses of these Terms and Conditions operates separately. If any court, tribunal or relevant authority decides that any of them are unlawful or unenforceable, the remaining clauses will remain in full force and effect.
If we fail to insist that you perform any of your obligations under these Terms and Conditions, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you. These Terms and Conditions (including any Contract) and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law.
Unless expressly stated otherwise elsewhere on our Site, these Terms and Conditions and any document expressly referred to in them shall constitute the entire agreement between you and us and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between us, whether written or oral, relating to their subject matter.
You acknowledge that in using the PACT System or our Site generally, you do not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms and Conditions or any document expressly referred to in them.
You and we agree that neither of us shall have any claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Terms and Conditions.
“Prosper²” and all associated logos and marks are trademarks of Prosper Limited. You are not authorised to use any intellectual property which belongs to us or to our associated businesses without our written consent.
During this Agreement and for 18 months after is cessation or termination you agree not to engage (either directly or indirectly) in setting up, running, owning or having any proprietary interest in any company, corporation, business or operation, which competes with the PACT System or Site of business therein. You acknowledge that this restriction is reasonable and necessary to protect our legitimate commercial interests developed over time and as a result of significant investment by us.
DISPUTE RESOLUTION BETWEEN US AND YOU
If any dispute arises in connection with the running of a Business Member’s online profile between us and a Business Member, directors or other senior representatives of the parties with the authority to settle the disagreement will, within 28 days of a written request from one party to the other, meet (whether via Skype, in person or otherwise) in a good faith effort to resolve the disagreement.
If the disagreement is not resolved at that meeting, the parties will attempt to settle it by mediation in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator will be nominated by CEDR. To initiate the mediation a party must give notice in writing (ADR notice) to the other party to the disagreement requesting a mediation. A copy of the request should be sent to CEDR Solve. The mediation will start not later than 21 days after the date of the ADR notice.
No party may commence any court or arbitration proceedings in relation to any disagreement referred to above until it has attempted to settle the disagreement by mediation and either the mediation has terminated or the other party has failed to participate in the mediation, provided always that the right to protect any time bar by issuing proceedings shall not be prejudiced by a delay hereunder or prevented.
Any dispute arising hereunder or in connection herewith that is not resolved as prescribed above shall be referred to Arbitration in London pursuant to the Arbitration Act 1996, provided that either party may apply to any competent court for interim injunctive relief.