Access to and use of REP BV's ("REP", "we" or "us") online exchange and website, called "We Are Pop Up" (located at www.wearepopup.com) (the "Site"), and all services made available through it from time to time (the "Services") is granted by us on, and subject to, the terms and conditions set out below (the "Member T&Cs").
The Site is designed to allow Members to submit and access information in relation to Spaces and Projects, and provide a platform for Members to connect and enter into licence agreements for those Spaces. The Site provides an automated licencing capability, allowing you to connect, agree terms and then enter into a comprehensive, legally-binding licence agreement tailored to you particular needs.
Please read these Member T&Cs carefully. In consideration of us allowing you to access the Site and to use the Services, you agree to be bound by these Member T&Cs. You should also note that these Member T&Cs set out obligations to other Members, and those Members may be able to enforce their rights against you under these Member T&Cs. Your attention is particularly drawn to the indemnities, and limitations and exclusions of liability, set out in these Member T&Cs.
In these Member T&Cs, capitalised words have the meanings set out in Schedule 1.
By registering with the Site, you agree to be bound by these Member T&Cs. The registration process will require you to verify the email address that you have provided to us.
Once registered to use the Site, you must complete the required Business Details in the form prompted. Until the required Business Details have been provided, you will not be given access rights to upload Projects and Spaces to the Site as set out in clause 3.1.
Each person applying for Membership and each Member must comply with our requests for information, including to allow us to conduct necessary due diligence.
3.1 As a Member, and once you have provided us with all necessary Business Details, you may upload to the Site:
3.2 We will review all Space Information which you upload before it is published on the Site, and may reject and remove Space Information for any reason. However, we will usually (but are under no obligation to) give the relevant Landlord a reason for any rejection and, where practicable, an opportunity to provide further Space Information where this would make our acceptance of the Space more likely.
3.3 We may review all Project Information and may reject and remove Project Information for any reason.
3.4 In accepting a Space or Project, we are undertaking only to make certain Space Information or Project Information available on the Site. Our acceptance of a Space or Project is not, and should not be taken to mean, that we are in any way endorsing, guaranteeing, underwriting, or giving any warranty or representation in relation to that Space or Project, or its associated Space Information or Project Information.
4.1 The purpose of the Site is to facilitate the creation of Rental Agreements between Landlords and Tenants for Spaces. Each Member should seek independent legal advice before entering into a Rental Agreement, and hereby warrants and represents to us and each other Member that is a party to a Rental Agreement with them that they have done so.
4.2 At the expiry of the Rental Agreement, Landlords shall ensure that the Tenant leaves the premises promptly. Any renewals must not exceed in aggregate with all previous Rental Agreement 12 months maximum. We shall not be liable to you or any other Member for any Losses incurred by you as a consequence of the Landlord and Tenant Act 1954 (as amended) being deemed to apply to a Rental Agreement entered into via the Site.
5.1 Once agreed between Landlord and Tenant, and the Tenant has paid the Rental Charge, a Rental Agreement will be generated on the Site.
5.2 You hereby warrant and represent that:
6.1 We provide access to the Site to Members free of charge.
6.2 While there is no charge or fee for registering with the Site, By agreeing to these Member T&Cs you agree that you will pay us the fees as set out on our Fees page for the specific services (including production and execution of a Rental Agreement) described on that page. We reserve the right to amend our fees and payment terms from time to time, and any such amendments will be notified to you via our Fees page.
6.3 Our fees set out in clause 6.2 must be paid using the methods and payment details set out on our Fees page.
7.1 As a Member you warrant and represent to us and each other Member that the following are and will be true each time that you access or use the Site or the Services:
7.2 You will provide us promptly on request with all information that we may reasonably require from time to time in connection with your access to or usage of the Site and the Services.
7.3 At all times you shall act in good faith in your dealings with us and other Members accessing the Site. Without prejudice to the foregoing, you shall (and shall ensure your employees and personnel shall):
8.1 Access to the Site and the Services is protected by certain security measures. During the registration process, you will set up Access Details to enable you to access the Site and Services.
8.2 We reserve the right to suspend or invalidate any Access Details at any time and at our discretion without notice (including, without limitation, on any breach of these Member T&Cs or in circumstances where in our judgment such action will mitigate an identified risk or prevent the Site being abused, manipulated or otherwise undermined).
8.3 We may change, suspend, terminate or discontinue any aspects of the Site or Services (including, without limitation, the availability of or access to any services, Materials, features or functions accessible through the Site or Services) at any time and at our discretion without notice. We may also impose limits on certain services, Materials, features or functions, or restrict access to parts of the Site, Services and/or Online Materials, or remove any Online Materials, at any time without notice or liability.
8.4 You will advise us as soon as possible if you know or suspect that: (a) your Access Details or any security procedures are lost or misused or are disclosed to or are known by any other person, or (b) you fail to comply with our instructions and guidelines.
8.5 You shall be liable for, and we shall be entitled to rely upon as being undertaken by you or on your behalf, any use of or access to the Site that is undertaken using your Access Details, save where such use or access occurs after we have been advised by you of any loss, misuse, or disclosure of the relevant Access Details under clause 8.4.
9.1 You acknowledge and agree that we may monitor use of the Site and any Member Materials.
The Site may contain links to other websites, which in turn may contain material that has been produced by third parties not affiliated with REP. We have no control over those other websites and accept no responsibility or liability for information or content provided on such websites.
11.1 You shall not (a) knowingly introduce any Viruses into the Site, Services or Online Materials, or (b) attack (or instigate or facilitate the attack of) the Site or Services via a denial-of-service attack or a distributed denial-of-service attack, or (c) use the Site or the Services for any purpose which is unlawful, abusive, libellous, obscene or threatening.
11.2 A breach of clause 11.1 may constitute a criminal offence. We may report any such breach (whether actual or suspected) to the relevant law enforcement authorities and you agree to co-operate with those authorities.
11.3 You shall be responsible for ensuring that you (a) check and/or scan any Online Materials for Viruses before downloading them to your systems, and (b) have in place on such systems appropriate Virus protection processes and software.
11.4 We will not be liable for any Losses caused by any form of attack or Viruses that may infect your computer equipment, computer programs, data or other proprietary material due to use of the Site or Services or accessing or downloading any Online Materials.
12.1 All right, title, interest and IPR in the Site, Services and REP Materials are the property of REP or its licensors. Member Materials available through and on the Site are the sole responsibility of the Members from whom such Member Materials originated.
12.2 You may only use the REP and Member Materials provided by other Members in accordance with the licences granted under clauses 12.3 and 12.4, and solely for the purpose of using the Site and Services in accordance with these Member T&Cs. All other use or dissemination of such Materials (by any means and in whole or in part) is prohibited without the prior written permission of us or the relevant Member, as applicable. In addition, you shall ensure that you do not delete or amend any copyright or other notices displayed on such Materials or any copies of them.
12.3 You grant us and each Member a worldwide, perpetual, royalty-free, irrevocable, transferable licence to use, copy, modify, reproduce, display and distribute the Member Materials provided by you for the purpose of providing or using the Services.
12.4 We grant you a royalty-free, non-exclusive, non-transferable licence to use the REP Materials for the purpose of using the Services
12.5 Access to or use of the Site or the Services does not grant you any ownership right in the Site, Services, REP Materials, or Member Materials not provided by you.
12.6 The "We Are Pop Up" trade mark is owned by us and nothing contained on the Site, Services or these Member T&Cs shall constitute the grant of a licence to use such trade mark.
12.7 Except as set out in this clause 12, you shall treat as confidential and shall not (other than where permitted or compelled to do so by any Applicable Law) use or disclose to any person any Confidential Information nor permit its disclosure.
12.8 This clause 12 shall survive any termination of these Member T&Cs.
13.1 You will ensure that your Member Materials are appropriate for use within the Site, and are not obscene, offensive, defamatory or abusive.
13.2 You acknowledge that the Communications Functionality is not a secure means of communication and may be subject to intrusion, fraudulent use and/or modification for which we cannot and shall not guarantee the security, authenticity, completeness, content or source of the information/data sent or received. Consequently, you fully accept the risk, whatever the nature, which could arise from the use of the Communications Functionality.
13.3 We have used our reasonable efforts to ensure that the REP Materials are compiled from sources that we believe to be reliable and accurate; however, we do not represent or warrant the accuracy of the REP Materials and the REP Materials may be incomplete or condensed and may be subject to change without notice.
13.4 No condition, term, representation or warranty, whether express or implied, is made or given by us that:
14.1 Nothing in these Member T&Cs shall exclude or limit any person's liability for death or personal injury caused by its negligence, or any person's liability for fraud.
14.2 Subject to clause 14.1, neither we nor any of our agents, licensors or delegates or our or their directors, officers or employees will be liable for any Losses incurred or suffered by you, directly or indirectly in connection with:
regardless of whether such Losses arise in contract, tort, negligence, breach of statutory duty or otherwise.
14.3 Subject to clause 14.1, neither we nor any of our agents, licensors or delegates or its or their directors, officers or employees will be liable for any indirect or consequential Losses incurred or suffered by you, whether or not those Losses are foreseeable.
14.4 You will indemnify and keep indemnified REP, its agents and delegates and its and their directors, officers and employees (each an “Indemnified Person”) from and against all Losses incurred by an Indemnified Person directly or indirectly in connection with:
14.5 The indemnity in clause 14.4 does not apply to any Indemnified Person in so far as such Losses result directly from the proven negligence, wilful default or fraud of such Indemnified Person.
14.6 Subject to clauses 14.1, 14.2 and 14.3, the total aggregate liability of us to you for all Losses arising out of or in connection with these Member T&Cs, the Site, Services and the Online Materials (whether such Losses arise in contract, tort, negligence, breach of statutory duty or otherwise) shall not exceed the greater of £5,000 or the amount of any fees received from you in the preceding 12 months.
14.7 Except as specified in these Member T&Cs, all express or implied conditions, terms, representations or warranties (whether implied by statute or otherwise) are hereby excluded to the maximum extent permitted by law.
14.8 You agree that the exclusions and limitations set out in these Member T&Cs are reasonable in light of:
15.1 We may amend these Member T&Cs by giving written notice to you or by conspicuously posting such amendments on the Site. You may view such amendments by referring to the current version of these Member T&Cs which is available by way of a hypertext link on the introductory screen of the Site or contained in an email sent to you by REP.
15.2 We will give you 30 days' notice of an amendment under clause 15.1, unless it is not reasonably practicable for we to do so, for instance because of operational constraints in relation to the Site or because of a change in Applicable Law.
15.3 Notwithstanding clause 21, you and we may agree to vary or rescind these Member T&Cs without the consent of any other Member.
15.4 Any amendment will take effect on such date as we will specify, which date will be no earlier than Applicable Law may require.
15.5 Without prejudice to the foregoing, you shall be deemed to have accepted any such amendment if you continue to access and use the Site or the Services after the date we have specified under clause 15.4.
16.1 We may transfer all or any of our rights, liabilities and obligations under these Member T&Cs to any third party and we will notify you of any such transfer. You will be taken to have consented to such transfer by continuing to access the Site or use the Services after such notification.
16.2 We may delegate the provision of the Site or the Services or the performance of any obligation or function and reserve the right to use any agents on such terms as we may think fit.
16.3 You shall not assign or transfer (or purport to assign or transfer) or otherwise deal with (including through the declaration of a trust) in whole or in part, your rights or obligations under these Member T&Cs without our prior written consent.
17.1 It is the Landlord's responsibility to provide Tenants with a valid Energy Performance Certificate.
18.1 Without affecting any other rights and remedies which we may have and without liability to you for any Losses which may result, we may terminate these Member T&Cs:
18.2 You may terminate these Member T&Cs at any time by giving us 30 days' notice in writing in accordance with clause 21.
18.3 On any termination of these Member T&Cs:
18.4 Termination for whatever reason of these Member T&Cs shall not affect:
19.1 We shall not be liable in any way for any Losses arising from any failure or delay in performing or complying with these Member T&Cs caused by any circumstance beyond our reasonable control, which shall be deemed to include (without limitation) war, terrorism, riot, civil commotion, sabotage, vandalism, accident, break down or damage to equipment, networks or software, malfunctioning of software, corruption of data, fire, flood, acts of God, strike, lock-out or other industrial disputes (whether or not involving our employees) or legislative or administrative interference.
19.2 On the occurrence of any such event, we may in our sole discretion and without liability terminate these Member T&Cs, or suspend your access to or use of the Site and the Services (in whole or in part).
20.1 These Member T&Cs shall contain the entire agreement and understanding between us, and supersede all prior agreements, understandings or arrangements (both oral and written), in relation to the Site and Services.
20.2 In agreeing to these Member T&Cs, you confirm that you have not relied upon and waive any rights or remedies in respect of any representation, warranty, collateral agreement, arrangement or understanding, whether written or oral, given or entered into by any person (whether a party to these Member T&Cs or not) except those expressly set out or referred to in these T&Cs.
20.3 Nothing in clause 20.2 shall limit or exclude any liability for fraudulent misrepresentation.
21.1 Except as provided for in 21.2 below, these Member T&Cs are not intended to be for the benefit of, and shall not be enforceable by, any person other than you and us whether under the English Contracts (Right of Third Parties) Act 1999 or otherwise.
21.2 All rights expressed in these Member T&Cs to be owed to us shall be construed as owed also to all other Members, as exist from time to time. This means that other Members may be able to sue you directly for loss or damage caused to them by your failure to meet specific obligations to them arising and enforceable under these Member T&Cs.
22.1 All notices or other communications may be given orally unless required to be in writing.
22.2 We may rely on any communication in any form which purports to have been made, and which it reasonably believes to have been made, by you or otherwise on your behalf.
22.3 Except as otherwise expressly provided in these Member T&Cs, any communication in writing may be given by post, fax or electronic mail to the address, fax number or electronic mail address last notified by the recipient or, for communications given by us, by posting on the Site, but not using the Communications Functionality.
22.4 Communications sent to us will be deemed received only if actually received by us.
Communications sent by us to you:
23.1 Without prejudice to your other obligations, you shall, and shall use your best endeavours to ensure that a third party shall, do everything necessary to give full force and effect to these Member T&Cs and each Rental Agreement as we may request in writing.
23.2 Any waiver of a breach of any of these Member T&Cs or of any default thereunder by us shall not be deemed to be a waiver of any subsequent breach or default and shall in no way affect any other provisions of these Member T&Cs.
23.3 No failure to exercise and no delay on our part in exercising any right, remedy, power or privilege under these Member T&Cs and no course of dealing between the parties shall be construed or operate as a waiver or abandonment thereof, nor shall any single or partial exercise of any right, remedy, power or privilege preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights and remedies provided by these Member T&Cs are cumulative and are not exclusive of any rights or remedies provided by law.
23.4 If the whole or any part of any provision of these Member T&Cs is invalid, that invalidity shall not affect the validity of the remainder of the affected provision or any other provision.
24.1 These Member T&Cs shall be governed by, construed and take effect in accordance with the laws of The Netherlands.
24.2 The courts of The Netherlands shall have exclusive jurisdiction to settle any claim, dispute or matter of difference that may arise out of or in connection with these Member T&Cs, the Site or Services (including without limitation claims for set-off or counterclaim).
"Access Details" means the userID, password, access key and/or other such security devices or details, whether used or unused, and in whatever form and on whatever media, chosen by you from time to time in order to enable you to access the Site;
"Applicable Laws" means all applicable law, rules and regulations;
"Approvals" means approvals, licences, authorisations, permits and consents;
"Business Details" means all information related to the company, business or partnership which you present as is required by our member application form within the Site, including, but not limited to company/trading name, company number, registered/business address and a valid telephone number;
"Communication Functionality" means online chat and messaging features as may be made available by us to you within the Site in accordance with clause 13;
"Confidential Information" means all information (in whatever form) which is not publicly known and which is disclosed to, or otherwise learnt by, you in connection with the Site, Services or these Member T&C, including the content of the REP Materials, Member Materials not provided by you, and these Member T&Cs;
"REP Materials" means Materials made available on, through or via the Site or the Services, including but not limited to, the Rental Terms & Conditions, but excluding the Member Materials;
"Landlord" means a Member who has published Space Information to the Site, with a view to obtaining a Tenant for that Space;
"IPR" means intellectual property rights, including patents, trade marks, design rights, copyrights, database rights, trade secrets, rights in confidential information and all rights of equivalent nature anywhere in the world, together with any applications or rights to apply for the foregoing;
"Loss" means any loss, damage, liability, cost or expense whether direct or indirect including (without limitation) any loss of profit, loss of revenue, loss of opportunity, loss of contract, loss of goodwill, loss of reputation and/or increased costs of working and (provided such losses were not made aware to us at the time these Member T&Cs are entered into, and are not caused by a breach of these Member T&Cs by REP) any indirect, special or incidental loss, or any loss resulting from liability to any other person;
"Materials" means information, documentation, images, data, text, electronic files and other content;
"Members" means the persons authorised by us to access the Site and use the Services, and "Membership" is defined accordingly;
"Member Materials" means any Materials (including Space Information and Project Information) provided by you and/or other Members to us that are accessible on the Site and made available through the Services;
"Online Materials" means the REP Materials and Member Materials;
"Project" means a Tenant's project or business venture for which the Tenant requires a Space;
"Project Information" means all the information relating to a given Project made available by a Member via the Site;
"Rental Agreement" means the commercial terms agreed on the Site between the Landlord and the Tenant, including but not limited to the Rental Period and Rental Charge, for the purposes of granting license to the Space;
"Rental Charge" means the total amount due by the Tenant to the Landlord as designated in the Completed Rental Agreement.
"Rental Terms & Conditions" means REP's standard property rental terms and conditions, which is used to create a Rental Agreement via the Site;
"Space" means a Landlord's premises for which a Tenant is sought and about which Space Information is published to the Site;
"Space Information" means all the information relating to a given Space made available by a Member via the Site, which shall include a valid Energy Performance Certificate ("EPC") for that Space;
"Tenant" means a Member who has published Project Information to the Site, with a view to finding a suitable Space for that Project;
"VAT" means value added tax chargeable under the Value Added Tax Act 1994;
"Viruses" means viruses, trojans, worms, logic bombs, or other material which is malicious or technologically harmful; and
"you" means the party that has entered into these Member T&Cs as a Landlord or Tenant.