TERMS OF SERVICE FOR COWORKING OPERATORS
Updated: October 2020
This Cloud Services Agreement is entered into as of (the “Effective Date”) between Upsuite Corp., a Delaware corporation, having its principal place of business at 115 W 30th St Suite #900, New York, NY 10001 (“Provider”) and , having a principal place of business at (“Operator”)
Introduction and Acceptance of Terms
To use the Website and the Services, Operator must register and create an operator account. When Operator completes our registration form, you will be requested to provide your contact information and information about your Facility, and to complete all other information as may be required by the registration form. Such information may include your name (and/or the name of your company, address, phone number as well as register a valid credit card). Y
By registering for an operator account, you appoint Upsuite as a connecting agent for Members with authority to identify, inform, process and connect Members for you in connection with your Facility.
As part of the Services, Upsuite may offer paid services to you and other operators outside of its free listing service. Upsuite reserves the right to promote operator facilities on third-party advertising platforms, using facility information consistent with the content on Upsuite’s official website advertisement.
Operator use of the Website and Operator Account
The Website, your operator account and Services are made available to you and provided exclusively for your personal use. You cannot use the Website in a manner that competes with Upsuite’s activities.
New Member Introductions
A successful introduction is made when Upsuite passes the contact information of a Member on to you for the Facility. This introduction is made by way of an email from Upsuite to you and the Member.
New Member Rejection
Upsuite and the Members will assume that you and your Facility acknowledge and accept a new Upsuite member upon receipt of Upsuite’s email introduction, unless you respond by email to the Upsuite email introduction within 48 hours, stating that you reject the Member introduction.
New Member Confirmation
Within a reasonable time frame of your receipt of Upsuite’s email introduction, you must use best efforts to enter into a written agreement with the Member. It is your responsibility to provide Upsuite by email at email@example.com and provide the signed member agreement. Once verified, Upsuite will send you a confirmation e-mail detailing all the terms and conditions applicable to the Services as well as the applicable Referral Fees. You are also responsible for notifying Upsuite of any renewals or expansions that include fees under this agreement.
When you have provided Upsuite with the information as set forth in the “New Member Confirmation” section above, the referral fees (the “Referral Fees”) owed by you to Upsuite for Upsuite’s introduction to you of the new Member, plus all applicable taxes, become payable. Upsuite’s Referral Fees are a portion of the total monthly rent paid by the Member to you for the first 12 months of the Member’s use of your Facility or services. Here is a schedule of fees based on contract length, and facility occupancy at the time of lease signing:
|Term of Member Agreement||Referral Fee|
|Month to Month term||10% billed monthly starting with new member confirmation|
|6 Month term||10% of 6 month lease billed upon new member confirmation|
|12 month or greater term||10% of 12 month lease billed upon new member confirmation|
|Renewal after 12 Months||5% of 12 month lease billed upon new member confirmation|
It is your sole responsibility to notify Upsuite of any agreement cancellations or non-renewals, within 15 days of notice being given to you. Without such notification, Upsuite will continue billing as if the member was still using the space.
If a Member signs up for a period of greater than 12 months, Upsuite is only entitled to agreement revenue up to 12 months, plus renewal amounts. If a member signs an initial lease and then adds additional members or seats, Upsuite fees apply to the additional seats as well.
If a Member signs up for an initial period of more than 12 months, but which include a rent-free period within the first year, Upsuite is entitled to Referral Fees calculated in accordance with the following structure: total monthly rent, multiplied by the total number of non-rent free months, divided by the number of months in the initial period, multiplied by 12, multiplied by the appropriate fee (in the schedule above).
License Fee Increases
Should the total monthly rent payable by the Member increase during the term of your agreement with the Member, it will be your responsibility and obligation to advise Upsuite by email within 48 hours of the total monthly rent increase. Should Upsuite raise fees on cloud services it will be upon renewal and Upsuite will advise of the increase prior to the renewal notice date. .
Payment Terms. Operator will pay to Provider the Fees as further described in the Exhibits to this Agreement, as and when described in such Exhibits. Unless otherwise agreed in writing between the parties, all Fees are stated and all payments shall be made in US Dollars.
Payments. Subscription Fees will be billed and paid Net 30 days from the Date.
If following your registration on the Website and use of the Services, you rent your Facility without advising us as required above, a penalty of 2x (twice) the normal fee will be charged to you directly and without notice.
If Upsuite introduces a Member to you and your Facility, and a third party also refers you and your Facility to such Member, then the referrer who was first to send the introduction shall be credited with the Referral Fee.
Each party (the “Disclosing Party” for the purposes of this Section) may from time to time during the term of this Agreement disclose to the other party (the “Receiving Party” for the purposes of this Section 4) certain Confidential Information (as defined below). The Receiving Party shall hold in strict confidence the Confidential Information of the Disclosing Party using the same degree of care which the Receiving Party ordinarily uses with respect to its own Confidential Information, but in no event with less than reasonable care.
Performance. For the duration of the subscription Provider warrants that the Subscription Services, when Used as permitted under this Agreement and in accordance with the Documentation, will operate substantially as described in the Documentation. Provider does not warrant the Operator’s Use of the Subscription Services will be completely error-free or uninterrupted.
Authority. Provider represents and warrants that it has the full power and authority to grant the rights granted by it to the Operator under this Agreement.
EXCEPT FOR THE EXPRESS WARRANTIES IN SECTION 5, NEITHER PARTY MAKES ANY OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. OPERATOR ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES IN THIS AGREEMENT. OPERATOR ACKNOWLEDGES THAT THE SUBSCRIPTION SERVICES ARE PROVIDED WITH THE UNDERSTANDING THAT PROVIDER IS NOT ENGAGED IN THE BUSINESS OF RENDERING LEGAL, TAX OR OTHER PROFESSIONAL SERVICES (EXCLUDING FOR THESE PURPOSES ANY SERVICES PROVIDED UNDER THE PROFESSIONAL SERVICES AGREEMENT BETWEEN THE PARTIES) AND THAT THE SUBSCRIPTION SERVICES ARE NOT INTENDED TO PROVIDE LEGAL, TAX, OR OTHER EXPERT ADVICE, OR BE A SUBSTITUTE FOR A LAWYER, ACCOUNTANT, OR OTHER PROFESSIONAL. IF LEGAL OR TAX ADVICE OR OTHER EXPERT ASSISTANCE IS NEEDED, THE SERVICES OF A COMPETENT LAWYER, ACCOUNTANT, OR OTHER PROFESSIONAL LICENSED TO PRACTICE IN THE APPLICABLE JURISDICTION SHOULD BE SOUGHT. WITHOUT PREJUDICE TO THE WARRANTIES IN SECTION 5, OPERATOR ACKNOWLEDGES AND AGREES THAT ALL DECISIONS MADE BY OPERATOR WITH THE ASSISTANCE OR USE OF THE SUBSCRIPTION SERVICES WILL BE EXCLUSIVELY THE RESPONSIBILITY OF THE OPERATOR.
Intellectual Property Infringement. Provider agrees to defend, indemnify and hold harmless Operator against all liability and expenses (including reasonable attorneys’ fees) suffered or incurred by the Operator arising from any claim by a third party that the Subscription Services or Operator Software infringe the intellectual property rights of such third party.
LIMITATION ON LIABILITY
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT.
By registering for an operator account and providing content including but not limited to photographic, text, pricing, you grant Upsuite a license to use, copy, make available, publish and display for the purpose of the Services any text, illustration, graphic, image, photograph and other content uploaded, deposited or published by you on the Website (the “Content”).
You also bear any liability from any third party who may claim ownership of the content you provide to Upsuite for the purposes of publishing it on the website, should they contest use of that content on the website.
Upsuite reserves the right to require that you upload, deposit or publish a minimum of or specific Content (and in a certain format, size and resolution) in connection with your Facility.
The relationship between you and Upsuite is that of independent parties and under no circumstances shall a party, its agents or employees be deemed agents or representatives of the other party.
These Terms constitute the entire agreement between you and Upsuite regarding your use of the Website, the Services and any other subject matter herein, and they replace any previous agreement, representation, warranty or understanding, whether verbal or written, express or implied, in this regard.
These Terms are governed by and construed in accordance with the laws of the State of Colorado, and of the laws of the United States applicable therein without regard to its choice of law or conflicts of law principles. You agree that any dispute related to these Terms or the Services shall be submitted to an Colorado court of competent jurisdiction in the judicial district of Denver, State of Colorado, USA.
Term and Termination
Term. The initial term of this Agreement will commence on the Effective Date and will continue for one month unless sooner terminated in accordance with this Agreement. The Term will automatically be extended by additional terms of one (1) month each unless either Party provides not less than thirty (30) days’ prior written notice of its intent not to renew.
Termination. Each party may terminate this Agreement, effective immediately upon written notice to the other party, if: (a) the other party materially breaches any term of this Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from the non-breaching party; or (b) the other party becomes insolvent, has a receiver appointed with respect to a material part of its assets, or is the subject of any bankruptcy proceeding that is not dismissed within thirty (30) days of its filing.
Survival. Sections (“Restrictions on Use”), (“Proprietary Rights”), (“Ownership”), (“Confidentiality”), (“Warranties”), (“Indemnity”), (“Limitation Liability”), (“Effects of Termination”), and (“General”) will survive the termination of this Agreement for any reason.
Use of Aggregated Data. On an aggregated basis together with other similar data from other Upsuite Operators so that the resulting “Statistical Data” is anonymous as to source in a manner in which the details and source of the information is not revealed – “Generic Data”; or where the Operator Data is further processed and analyzed utilizing Upsuite’s methodology and other Upsuite inputs to generate “Analyzed Data” that protects the specific underlying subject property Operator Data.
Upsuite may disclose Statistical Data, Generic Data and Analyzed Data to any Upsuite Operators.
Publicity. Provider may, with Operator’s prior written approval, identify the Operator as a customer during the term of this agreement, including using Operator’s logo or commercial symbol. The Provider will not issue a release with information related to how the Operator utilizes its services without prior written approval from said Operator.