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TERMS OF SERVICE FOR PRIVATE WORKSPACE LEAD GENERATION

Updated: September 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 1900 Dartmouth Ave., Boulder, CO 80305 (“Provider”) and                                      having a principal place of business at   _________                                                                                                (“Operator”).

Introduction and Acceptance of Terms 

Upsuite Corp. (“Upsuite”) provides services to connect Upsuite Member/Tenants (“Member/Tenants”) with operators and their Spec Suites (the “Services”) plus software and analytics to support these endeavors. Operator desires to register your spec suite spaces, operated by an affiliate of Operator (aFacility”) on Upsuite’s website located at www.upsuite.com (the “Website”) to be provided with the Services pursuant to these terms of service for operators (these “Terms”). By accessing and using the Website and registering for an operator account, Operator accepts these Terms and the Privacy Policy, which shall apply to the Services Upsuite provides Operator and are subject to change with 30 days written notice. For the purposes hereof, the terms “Upsuite”, “we,” “us,” and “our” mean Upsuite Corp., a company registered in the State of Delaware, United States, with a registered address at 1900 Dartmouth Avenue, Boulder CO 80305, the terms “you” and “your” refers to an operator to whom Upsuite provides services and “party,” and “parties” refer to Upsuite and Operator, respectively individually and collectively.

Registration

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). Your account information must be accurate, complete and up-to-date at all times. Otherwise, your access to your account may be suspended or terminated automatically and without notice.  Should you go two months without updating suite availability information, your account may be suspended. 

By registering for an operator account, you appoint Upsuite as a connecting agent for Member/Tenants with authority to identify, inform, process and connect Member/Tenants for you in connection with your Facility. 

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/Tenant Introductions

A successful introduction is made when Upsuite passes the contact information of a Member/Tenant on to you for the Facility. This introduction is made by way of an email from Upsuite to you and the Member/Tenant.

3D Planning and Visualization Platform. 

Upsuite will provide operator a 3D layout planning and virtual tour platform as part of the subscription fee provided by FastOffice Corp. (“FastOffice”) and integrated into the Upsuite listing. Operator will provide Upsuite with an AutoCAD (DWG) file of the space being marketed or a PDF in absence of a DWG file. As part of this service FastOffice design professionals will be available for virtual design sessions with Member/Tenants including the selection of office furnishings. It is understood that Upsuite and FastOffice receive compensation from manufacturers for any products purchased through our platform.

Change of Ownership

In the event that your Facility (or a portion of your Facility) is sold, assigned or transferred, it is your responsibility to immediately advise Upsuite of such sale, assignment or transfer in writing (email is sufficient) and to ensure that the purchaser, assignee or transferee is aware of, accepts and comply with the provisions contained herein, including the payment of the Referral Fees to Upsuite. Notwithstanding any such sale, assignment or transfer, you shall remain jointly and severally (solidarily) liable with the purchaser, assignee or transferee to Upsuite for the fulfillment of the obligations contained herein, including the payment of the Referral Fees to Upsuite, until the purchaser, assignee or transferee acknowledges and agrees in a written instrument to be bound by the Terms contained herein.

Confidentiality

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 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. The Receiving Party shall not use the Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and shall limit the disclosure of the Confidential Information of the Disclosing Party to the employees or agents of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement, and who are, with respect to the Confidential Information of the Disclosing Party, bound in writing by confidentiality terms no less restrictive than those contained herein.  For the purposes of this Section, “Confidential Information” means any non-public or proprietary information of the Disclosing Party, either directly or indirectly, in writing, orally or by inspection of tangible objects, including product information, Operator lists, know-how, program concepts, trade secrets and the terms of this Agreement.  For greater certainty, the following shall be considered Provider’s Confidential Information: (a) any information, in whatever form, disclosed by Provider that relates to the Subscription Services or Operator Software and is non-public; and (b) the Documentation. For greater certainty, the following shall be considered Operator’s Confidential Information:  (1) any information, in whatever form, disclosed by Operator, including Operator Data, Operator’s configurations of the Subscription Services and Operator Software, information of or pertaining to any Operator customer and all Operator customer data, and information regarding Operator’s or any Operator customer’s services offerings, pre-release offerings, software, technology, technology implementation processes, marketing and business plans and financial information, channel, customer and employee information, identifying information of individuals and other personal data, and authentication credentials provided to Contractor or its Personnel by Operator. Confidential Information may also include the information of a third party disclosed to the Disclosing Party under an obligation of confidentiality.  Confidential Information, however, shall not include any information which the Receiving Party can establish: (i) with the exception of personal information, was in the public domain prior to the time of disclosure to the Receiving Party by the Disclosing Party; (ii) with the exception of personal information, becomes publicly known after disclosure to the Receiving Party through no action or inaction of the Receiving Party; (iii) is in the possession of the Receiving Party, without confidentiality restrictions, at the time of disclosure to the Receiving Party by the Disclosing Party as shown by the Receiving Party’s files and records immediately prior to the time of disclosure; or (iv) only to the extent required, is required to be disclosed pursuant to an order or requirement of a court, administrative agency, or other governmental body, provided, however, that the Receiving Party shall provide prompt notice of its obligation to so disclose to the Disclosing Party prior to disclosing the information and shall use its commercially reasonable efforts to obtain a protective order or otherwise prevent public disclosure of such information, at the Disclosing Party’s expense.

Provider hereby acknowledges that Operator is subject to certain privacy and information security laws and regulations, pursuant to which Operator is required to ensure that it appropriately safeguards any personal information regarding Operator’s (or its customers’) former, current or prospective users or employees (“Personal Information”). To the extent that Provider receives any Personal Information or Operator Data as a result of any exchange of information under this Agreement, and notwithstanding anything to the contrary contained in this Agreement, Provider agrees that  it will (a) not disclose or use any Personal Information except to the extent necessary to carry out its obligations under this Agreement and for no other purpose, (b) not disclose Personal Information to any third party, including, without limitation, its third party service providers without the prior written consent of Operator and subject to the further requirements of this Section, (c) employ commercially reasonable administrative, technical and physical safeguards designed to prevent unauthorized use or disclosure of Operator Data and Personal Information, including encryption of the foregoing, (d) promptly provide such information regarding its information security systems, policies and procedures as Operator may request relating to its due diligence and oversight obligations under applicable laws and regulations, (e) in the event of any actual or apparent theft, unauthorized use or disclosure of or access to any Personal Information or Operator Data, immediately commence all reasonable efforts to investigate and correct the causes and remediate the results thereof, and (f) promptly following discovery of any event described in clause (g) hereof, provide Operator notice thereof, and such further information and assistance as may be reasonably requested. Operator or its designee may annually, upon reasonable advance notice and during regular business hours, reasonably audit the operations and facilities of Provider to the extent necessary to ensure compliance with the requirements of this Section and any applicable laws pertaining to protection of Personal Information. Provider will cooperate with the auditing organization in all reasonable respects regarding any such audit. As an alternative to any such audit, if acceptable to Operator, Provider may provide Operator annually with an applicable independent third party audit report reasonably acceptable to Operator regarding such operations, facilities, and compliance. 

Warranties

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.  Provider will, at its own expense and as its sole obligation and Operator’s exclusive remedy for any breach of this warranty, correct any reproducible error in the Subscription Service and/or Operator Software reported to Provider by Operator in writing during the Subscription Period and, if Provider is unable to correct the error within 30 days’ of notification thereof, Provider will refund to Operator all Subscription Fees that Operator pre-paid to Provider for the period following the date of reporting the error.

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.

Professionalism. Provider represents and warrants that Provider will perform the Subscription and Support Services (collectively, “Services”) in a good, professional and workmanlike manner, consistent with industry standards, and that each of Provider’s personnel assigned to perform Services has the skills, training and resources necessary to perform the Services assigned to them in compliance with this Agreement.

Malware.  Provider represents and warrants that: Provider will use all commercially reasonable efforts, including use of then current versions of commercially available anti-virus software, to ensure that the Services, as delivered or modified by Provider, do not contain any Malware; and that Provider will not introduce or transmit any Malware into Operator’s networks or devices. “Malware” means programming (code, scripts, active content, and other software) that is designed to disrupt or deny operation, gather information that leads to loss of privacy or exploitation, or gain unauthorized access to system resources, or that otherwise exhibits abusive behavior. Malware includes computer viruses, worms, trojan horses, spyware, dishonest adware, scareware, crimeware, most rootkits, or other malicious or unwanted software or programs.

Compliance with Law. Provider represents and warrants that Provider will perform the Services in compliance with all applicable federal, state, provincial and local laws, regulations, rules and ordinances (collectively, “Laws”), including those related to employment, and to export control Laws. Provider will defend, indemnify and hold Operator harmless from and against any loss, liability, damages or expense (including attorneys’ and other experts’ fees) incurred by Operator or its affiliates and arising out of any claim that Provider has failed to comply with any Laws.

Disclaimers

EXCEPT FOR THE EXPRESS WARRANTIES IN THIS DOCUMENT, 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 THIS DOCUMENT, 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.

Indemnity 

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.  Operator agrees to notify Provider promptly in writing of such a claim.  Operator shall give Provider sole control of the defense of such a claim and any related settlement negotiations, provided that Provider may not agree to any settlement that imposes any obligation on Operator without Operator’s prior written consent.  Operator shall co-operate with such a claim and, at Provider’s request and expense, assist in such defense.  If the Subscription Services or Operator Software become, or in Provider’s opinion is likely to become, the subject of an infringement claim, Provider may, at its option and expense, either: (a) procure for Operator the right to continue using the Subscription Services and Operator Software; (b) replace or modify the Subscription Services and Operator Software in a  functionally equivalent manner so that it becomes non-infringing; or (c) accept termination of the Subscription Services and give Operator a refund for the Subscription Fee pre-paid by Operator for the period of time following such determination.  Notwithstanding the foregoing,  Provider will have no obligations under this Section or any other liability to Operator with respect to any infringement claim to the extent based upon: (i) any Use of the Subscription Services not in accordance with this Agreement; (ii) the combination of the Subscription Services with other products, software, or data not supplied by Provider, if the infringement would not have occurred but for such combination, unless such other products, software, or data are necessarily required to use the Subscription Services in their intended manner, and / or (iv) any modification of the Subscription Services or Operator Software by any person other than Provider or its authorized agents or subcontractors.  THIS SECTION STATES PROVIDER’S ENTIRE LIABILITY AND OPERATOR’S SOLE AND EXCLUSIVE REMEDY FOR ANY INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT CLAIMS.

Limitation of 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.  IN NO EVENT WILL EITHER PARTY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT OR THE SUBSCRIPTION SERVICES AND OPERATOR SOFTWARE, WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER LEGAL THEORY, EXCEED THE AMOUNT OF THE FEES PAID TO PROVIDER HEREUNDER AND OPERATOR ACKNOWLEDGES THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT PROVIDER WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.   NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS ON LIABILITY CONTAINED IN THIS SECTION SHALL NOT APPLY IN RESPECT OF: (i) PROVIDER’S DEFENSE, INDEMNIFICATION AND HOLD HARMLESS OBLIGATIONS; (ii) EACH PARTY’S OBLIGATIONS UNDER THE CONFIDENTIALITY SECTION (SUBJECT TO LIMITS OF LIABILTY INSURANCE) AND WARRANTIES; NOR (iii) EACH PARTY GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

Content

By registering for an operator account, 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”). 

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.  

Independent Contractor

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. 

Entire Agreement

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

Governing Law

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.

English Language

Operator and Upsuite hereby agree that these Terms and all related documents, instruments and correspondence will be drafted in English only.  Il est de la volonté expresse de vous et Upsuite que ces Termes et l’ensemble de la documentation, des écrits et de la correspondance afférente soit rédigée en langue anglaise seulement. 

General

Compliance with Laws.  Operator will comply with all applicable laws, including all export and import control laws and regulations, in its Use of the Subscription Services and Operator Software.

Assignment.  Neither party may assign any of its rights or obligations under this Agreement without the prior written consent of the other; provided, however, Operator may assign this Agreement to an Affiliate without Provider’s prior written consent and Provider can assign this Agreement to a successor entity without Operator’s prior written consent. Each Party agrees to provide prompt written notice to the other Party of any such assignment. 

Notices.  All notices, consents, and approvals under this Agreement must be delivered in writing by personal delivery, prepaid international air courier, or facsimile to the other party at the address (or fax number) set forth below.  Such a notice, consent or approval will be effective upon receipt, if personally delivered, upon delivery, if sent by air courier, or one (1) business day following transmission, if sent by fax (provided a transmission confirmation is obtained).  Either party may change its address or fax number by giving notice of the new address or fax number to the other party in accordance with this Section.

Governing Law; Dispute Resolution. This Agreement will be governed by the laws of the state of Delaware, USA without reference to conflicts of law principles.  

Remedies.  Each party shall be entitled to seek immediate and permanent injunctive relief in accordance with this document or  in the event of any such breach or threatened breach by the other party pertaining to any intellectual property rights or Confidential Information of the other, to Operator Data, or to the Operator Software or Subscription Services, and each party acknowledges that any such breach may cause immediate irreparable harm for which money damages may not be an adequate remedy.  Nothing herein shall limit either party’s right to any remedies at law.

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.

Subcontractors. Provider may subcontract any of the Services without Operator’s prior written consent as long as the subcontractor agrees to meet the obligations of the agreement including the Confidentiality section of this agreement.  Provider shall be responsible for any act or omission of any of its subcontractors as though it were Provider’s own. 

Waiver.  Any waiver of a provision of this Agreement must be in writing and signed by the party waiving such provision.  Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

Severability. If any provision of this Agreement is held to be unenforceable or invalid by any court of competent jurisdiction, the remaining provisions will not be affected and will continue in full force and effect.

Construction.  The naming of Section headings in this Agreement is for convenience of reference only and is not to be used in interpreting this Agreement.  As used in this Agreement the word “including” means “including but not limited to”.

Counterparts.  This Agreement may be executed in counterparts, each of which will be considered an original, and all of which together will constitute the same instrument.  If this Agreement is executed in counterparts, no signatory shall be bound until both parties have executed their counterparts.  This Agreement may be executed by facsimile and facsimile signatures shall be treated as if they were original signatures.

Force Majeure.  Except for Operator’s obligations to pay Provider hereunder, neither party shall be liable to the other party for any failure or delay in performance caused by reasons beyond its or its service providers’ or suppliers’ reasonable control, provided, however, that the party that is not relying upon this provision may terminate this Agreement if the failure or delay in performance continues for more than 10 days.

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. 

 

Authorization:

 

IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date.

Upsuite Corp.

By: 

Name: 

Title: 

Address for Notice:

Upsuite Corp. 

1900 Dartmouth Ave.                

Boulder, CO 80305                         

Customer

By: Name:

Title: Address for Notice:

Company Name

Address 1:

City, State, Zip:

 

 

Exhibit A – Software Fees 

  • SUBSCRIPTION SERVICES

  1. Upsuite Flex Office Pro for _ Building(s) in ______ (Up to 4 suites)
  2. Should suites rise, or more buildings be added, price will update.

 

  • TERM

  • Initial term of the agreement: Month to Month Starting _______              .
  • PAYMENT

  • Monthly payment is due in full within 30 days of the invoice date.
  • FEES

 

ITEM Locations Per Location Monthly Cost Contract  Cost  All Locations
FlexOffice Basic Subscription

Provides access to data for one Operator location, up to 4 suites

1
Discount 
Subscription, invoiced monthly, due Net 30 days

 

Additional locations can be added to the contract at the same per month rate stipulated above and said locations will be added by calculating the pro-rated amount for the remainder of contracted term.  

Payment Policy

Customer will be issued an invoice and receipt of payment for their records at the time payment is processed. 

For any payment questions, feel free to reach out to the Upsuite billing team at  billing@upsuite.com.