TERMS OF SERVICE – BUSINESS
Last updated: December 1, 2020
These Online SMB Service Terms and Conditions (these “OMB Terms”) are entered into between Upflex, Inc., a Delaware corporation (“Upflex”), and a company who subscribes to the Service (defined below) on behalf of its employees, consultants, and all individuals to whom the company grants access to the Service (collectively, the “Customer”). These OMB Terms apply to and govern Customer’s use of the website (the “Site”), any Upflex mobile application and application program interface (the “Mobile Application”), and all associated services, including the Customer dashboard (the “Dashboard”), which enable Customer and its Customer Users to request and book on-demand office space from independent providers (together with the Site and the Mobile Application, the “Service”) made available by Upflex. By accessing, using, or participating in the Service, Customer agrees to be bound by these OMB Terms, which may be modified or updated by Upflex from time to time, effective upon posting of an updated version of the OMB Terms at www.upflex.com/legal/business, as well as the Terms of Service posted at www.upflex.com/legal/user. Upflex will provide Customer with a notice of any such modifications or updates via email and/or through the Dashboard, and Customer is responsible for regularly reviewing these OMB Terms. Continued use of Service after any such modifications or updates shall constitute Customer’s consent to such changes.
“Customer Business Account” means an enterprise business account accessible through the Dashboard for access to the Service provided by Upflex to the Customer that contains the Account Administrator name and contact information, subscription information and history, billing information and history, interaction records, and payment information and history.
“Customer User” means an individual authorized to use Service by the Customer who has created a Customer User Account with such Customer User Account linked to Customer Billing.
“Hub” is a private office for multiple Guests that may occupy partial, full, and/or multiple floor(s).
“Personal Data” means any information Customer obtains from Upflex in connection with these OMB Terms and Customer’s use of the Service that can reasonably be used to identify an individual, including but not limited to the Dashboard Data, or that may otherwise be considered personal data.
“Service Fee(s)” means the service fees applicable to Customer and/or Customer User charges and/or use of the Service, as set forth on the account creation form associated with these OMB Terms or otherwise agreed to between Upflex and Customer.
“Terms of Service” means the terms and conditions applicable to all users of the Service, available at www.Upflex.com/legal/user, as may be updated by Upflex from time to time.
“User Charges” means charges incurred by Customer Users for office space obtained through the use of the Service, including any applicable taxes or other charges that may be due for a particular use of the Service.
- PROVISION OF SERVICES
2.1 The Service
The Service enables owners and/or operators of Spaces (“Space Partners”) to offer for booking or otherwise make available their workspaces, which include desks, meeting rooms, individual offices, and Hubs (collectively, “Spaces”) for use by individuals who book the Spaces (each, a “Guest”). The listing of Spaces by Space Partners, and access to and booking of Spaces by Guests is completed through the Service and requires registration for an account as more particularly described in our Terms of Service.
2.2 Access to the Service
(a) Customer’s corporate account can be established by signing up directly on the Site or via an Upflex Account Manager who can establish Customer’s corporate account. The person who submits the sign up form on behalf of Customer is the “Account Administrator”. By creating Customer’s corporate account, the Account Administrator represents and warrants they: (i) are an authorized representative of Customer and have full legal authority to bind Customer to these OMB Terms; (ii) have read and understand these OMB Terms; and (iii) agree on Customer’s behalf to be bound by these OMB Terms. If the Account Administrator does not, or is not able to make the foregoing representations and warranties, they must not click the “I Accept” button as they are prohibited from registering a corporate account on behalf of the Customer.
(b) Maintaining a corporate account requires Customer to provide during the Term one or more valid Customer credit card numbers (each, a “Customer Card“) that may be charged for the Service as set forth herein. Using its corporate account, Customer, in its sole discretion, may permit Customer’s authorized users (each, a “Customer User”) to create a Customer User Account connected to the Customer Card such that the Customer User’s usage of the Service will be billed to the Customer Card (“Customer Billing”). Customer acknowledges a Customer User employing Customer Billing will be incurring charges to the account of Customer, and not to the Customer User’s personal account or credit card, and Customer agrees to pay all User Charges incurred by such Customer User, as well as any applicable Service Fees, in accordance with these OMB Terms. Subject to Customer’s compliance with these OMB Terms, Upflex agrees to use commercially reasonable efforts to provide the Service as set forth herein.
2.3 Customer Users
2.4 Customer User Account Linking
(a) To enable access to the Upflex Service, a Customer User must provide Upflex with (1) such Customer User’s full name, (2) the Customer User’s email address on the top level domain of Customer (e.g., [email protected]), and (3) other identifying information about the Customer User as reasonably requested by Upflex (collectively, the “Linking Data“). Upflex will use the Linking Data provided by Customer for the purpose of (x) authenticating the identified Customer User and linking such Customer User Account with the Customer Billing, and (y) verifying the Customer User Account status of such Customer User from time to time during the Term (for more information, see Annex 1). Upon completing the account activation steps, the Proposed User account will be linked to the Customer Business Account. The Customer User shall be provided the option, to book desks, meeting rooms and private offices, to apply User Charges to the Customer Business Account via the Customer credit card on file.
(b) Customer acknowledges that the verification and linking described in this Section 2 will require Upflex to contact each such Proposed User using the Linking Data, and Customer agrees to inform, and get all necessary consents from, each Proposed User for Upflex to contact such Proposed User for the purpose of implementing the Service for each Proposed User. Customer shall ensure that Linking Data provided to Upflex is accurate and complete, and Upflex shall not be liable to Customer, a Customer User, a Proposed User, or any other party with respect to inaccurate or incomplete Linking Data supplied by Customer.
(c) Customer agrees to (1) notify each Customer User that by linking a Customer User Account to the Customer Business Account, Customer will have access to detailed booking information for all User Charges to Customer’s account by such Customer User, and (2) to obtain any necessary consent from each Customer User for Upflex to share detailed booking information with Customer.
(d) A Customer User’s personal account may be unlinked from the Customer Business Account at any time by (1) Customer unlinking such Customer User through the Dashboard, or (2) the Customer User removing the connection to the Customer Business Account in the Customer User’s settings.
2.5 Responsibility for Customer User Activity
Customer agrees that (a) Customer is responsible for all User Charges incurred by Customer Users on a then-current authorized Customer User list in the Customer’s Dashboard, regardless of whether such User Charge was authorized between Customer User and Customer; and (b) User Charges may be subject to future price changes at any time. Customer agrees that Upflex shall not be responsible for User Charges incurred by a Customer User after Customer has attempted removal of such Customer User from the Service to the extent Customer provides incomplete or inaccurate Customer User removal information via the Dashboard. Finally, as between Customer and Upflex, Customer shall be responsible for the User Charges incurred due to fraudulent or other unpermitted activity on the part of Customer User’s use of Customer Billing for the Service. Customer shall notify Upflex promptly upon discovery of fraudulent or unpermitted activity occurring under the Customer Business Account. All Customer Users must comply with the Guest Code of Conduct and other terms applicable to use of Spaces as set forth in the Terms of Service.
- ACCOUNT ADMINISTRATION
Customer may appoint additional Account Administrators at its discretion, and Upflex will cooperate with Customer to inform new Account Administrators of Dashboard login credentials. Customer agrees to (a) maintain all Dashboard login credentials in confidence, (b) only permit authorized Account Administrators to access the Dashboard, and (c) ensure all information of the Account Administrators contained in the Dashboard is current, accurate, and complete. Customer shall limit access to Dashboard Data to only those Customer personnel who have a legitimate business need to access such Dashboard Data. Customer shall be responsible for all activity that occurs under its Dashboard login credentials.
3.3 Customer User Updates
It is Customer’s sole responsibility to keep and maintain an accurate list of its current authorized Customer Users entitled to access Customer Billing via the Dashboard. Upflex may review the current list of Customer Users from time to time via the Dashboard to maintain and support the Service and ensure compliance with these OMB Terms.
- PRIVACY AND DATA SECURITY
4.2 Data Restrictions
Customer agrees that any Personal Data obtained in connection with these OMB Terms shall be used solely in connection with the use of the Service, and for no other purpose, unless expressly authorized in writing by Upflex. Customer shall not use Personal Data in any way that harms Upflex or that benefits a competitor of Upflex. Customer agrees that it shall not disclose Personal Data to any third parties, except as necessary to use the Service. Customer shall not rent or sell Personal Data for any purpose.
Customer agrees to implement appropriate legal, technical and organizational measures to protect Personal Data against unauthorized or unlawful processing and against unauthorized loss, destruction, damage, alteration, or disclosure, as well as any breach or attempted breach of Customer security measures (“Information Security Incident“). Customer shall promptly notify Upflex in the event that Customer learns or has reason to believe that an Information Security Incident has occurred including at least: (1) the nature of the breach of security measures; (2) the types of potentially compromised Personal Data; (3) the duration and expected consequences of the Information Security Incident; and (4) any mitigation or remediation measures taken or planned in response to the Information Security Incident. Upon any such discovery, Customer will (a) take all reasonable steps to investigate, remediate, and mitigate the effects of the Information Security Incident, and (b) provide Upflex with assurances reasonably satisfactory to Upflex that such Information Security Incident will not recur. Additionally, if and to the extent any Information Security Breach occurs as a result of an act or omission of Customer, and if Upflex determines that notices (whether in Upflex’s or Customer’s name) or other remedial measures are warranted, Customer will, at Upflex’s request and at Customer’s cost and expense, undertake the aforementioned remedial actions.
- FEES AND CANCELLATION
In consideration of Upflex’s provision of the Service and the Customer Business Account as set forth herein, Customer shall pay to Upflex all User Charges and any applicable Service Fees Upflex may charge for certain functionality and features (collectively, the “Fees“) on the terms set forth herein. Unless otherwise agreed upon in writing by the parties, Upflex will charge the Customer directly for its membership each month on the anniversary of Customer’s membership date and for each month thereafter until Customer or Upflex terminates or cancels Customer’s Business Account. Current pricing for the various Spaces offered by Upflex are provided at upflex.com/pricing.
Each Space will have a minimum booking time, which will be shown in the Mobile Application prior to the time of booking. All Customer Users will be charged for such minimum usage period, regardless of the actual time spent at the Space. A Customer User must check in via the Mobile Application or through customer service at the Space to begin a session and to check out at the end each session.
Customer User’s must cancel any bookings within 24 hours of a user’s booking in order to receive a full refund. Customer will be charged the full amount of the booked session if the Customer User cancels after the 24-hour window.
Customer may cancel their Customer Business Account on the SIte or through the Mobile Application. Such cancellation will be effective at the end of the then-current billing cycle. Upflex will not provide a refund to Customer for any pro rata portion of a billing cycle for which Customer chose to cancel its Customer Business Account and Customer remains liable for all fees billed to the Customer Billing Account up to and including the last day of the then-current billing cycle.
All Fees are exclusive of applicable taxes, and Customer agrees to be responsible for the payment of any such taxes assessed on Fees, including, but not limited to, all sales, use, VAT or similar taxes, except for taxes based on Upflex’s income. All payments shall be processed in United States dollars. All payments are nonrefundable except as may be expressly provided otherwise herein.
Upflex will immediately charge the Customer Card on the last day of each billing cycle. Upflex reserves the right to immediately suspend the Customer Business Account and suspend all Customer Users in the event of any unpaid Fees by Customer, an invalid credit Customer Card on the Customer account, or a rejected Customer Card transaction. Upflex further reserves the right to pursue any and all remedies available to it under applicable law, including reporting Customer to applicable credit reporting agencies, in the event of any unpaid Fees hereunder. Re-establishing a Customer Business Account after full payment of late Fees shall be at Upflex’s sole discretion. All late payments shall bear interest at the greater of 3% per month or the maximum allowed by applicable law.
- TRIAL SUBSCRIPTIONS
Upflex may offer trial subscriptions that include standard access to the Upflex platform in accordance with the terms set forth on the Service at the time the trial is offered.
- TERM AND TERMINATION
These OMB Terms are applicable to Customer upon the earlier of the first day of a Trial or the first day on which a Customer Business Account is created, and shall remain in effect until the Customer Business Account is terminated and all Fees due hereunder are paid in full (the “Term”). All outstanding payment obligations and Sections 4, 5, 8, 9, and 10 hereof shall survive the termination of these OMB Terms.
- WARRANTY AND DISCLAIMER OF LIABILITY
8.1 Mutual Warranties
Each party represents and warrants that: (a) such party has the full right, power and authority to enter into these OMB Terms; and (b) such party’s acceptance of these OMB Terms, as well as such party’s performance of the obligations set forth in these OMB Terms, does not and will not violate any other agreement to which such party is a party.
8.2 Customer Warranties
Customer represents and warrants that: (a) Customer has all rights and permissions necessary to provide Upflex with the Linking Data and any other information provided to Upflex hereunder in connection with the Service and the Customer Business Account; (b) Customer has obtained legally-adequate consent from Proposed Users and Customer Users as necessary to provide Upflex with any Personal Data in connection with the Upflex Service; (c) Customer has notified, and obtained legally adequate consent from, Proposed Users and Customer Users that Upflex will provide Customer with detailed information regarding the Fees for usage of Spaces charged to Customer’s Business Account; and (d) Customer is in compliance, and shall remain in compliance during the Term, with all applicable local, city, state, federal, national, and international laws, rules and regulations relating to data protection, privacy, identity theft, data breach, consumer protection, and data security, and any applicable industry standards relating to privacy and data security.
8.3 Disclaimer of Warranties
EXCEPT AS EXPRESSLY PROVIDED HEREIN, UPFLEX PROVIDES THE UPFLEX SERVICE “AS IS” AND WITHOUT WARRANTY. UPFLEX DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE UPFLEX SERVICE WILL MEET CUSTOMER’S OR CUSTOMER USERS’ REQUIREMENTS OR THAT THE OPERATION OF THE UPFLEX SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. UPFLEX MAKES NO WARRANTY THAT THE UPFLEX SERVICE OR ANY SPACE RESERVATION OR BOOKING WILL MEET CUSTOMER OR CUSTOMER USERS’ REQUIREMENTS, OR THAT ANY SPACE MEETS APPLICABLE LEGAL STANDARDS AND IS SAFE OR SUITABLE FOR YOUR INTENDED USE. UPFLEX CANNOT GUARANTEE AND DOES NOT GUARANTEE AND DOES NOT PROMISE TO CUSTOMER USERS AND/OR GUESTS ANY SPECIFIC RESULTS FROM THE USE OF THE UPFLEX SERVICE OR A SPACE. UPFLEX HEREBY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THESE OMB Terms, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, (A) ANY IMPLIED OR STATUTORY WARRANTIES COVERING THE UPFLEX SERVICE, AND (B) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.
- LIMITATION OF LIABILITY
UPLEX DOES NOT CONTROL AND IS NOT RESPONSIBLE FOR THE ACTIONS OF OTHER INDIVIDUALS CUSTOMER AND/OR CUSTOMER USERS ENCOUNTER THROUGH THE UPFLEX SERVICE. YOU SHOULD BE AWARE THAT OTHER USERS, GUESTS, AND SPACE PARTNERS MAY NOT BE WHO THEY CLAIM TO BE. WE DO NOT PERFORM BACKGROUND CHECKS ON OUR USERS, GUESTS, OR SPACE PARTNERS, NOR DO WE GUARANTEE THAT OUR USERS, GUESTS, OR SPACE PARTNERS’ PROFILES OR ACCOUNT INFORMATION IS ACCURATE. WE DO NOT ENDORSE, SUPPORT, OR VERIFY THE FACTS, OPINIONS, OR RECOMMENDATIONS OF OUR USERS, GUESTS, OR SPACE PARTNERS. IF A DISPUTE ARISES BETWEEN USERS, WE HAVE NO RESPONSIBILITY OR OBLIGATION TO PARTICIPATE, MEDIATE, OR INDEMNIFY ANY PARTY.
TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCLUDING ANY OBLIGATIONS ARISING OUT OF INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN, (A) IN NO EVENT SHALL UPFLEX OR CUSTOMER BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, OR FOR LOSS OF BUSINESS OR PROFITS, SUFFERED BY THE OTHER PARTY OR ANY THIRD PARTY ARISING OUT OF THESE OMB Terms, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF UPFLEX OR CUSTOMER (OR THEIR AGENTS) HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THESE OMB TERMS FOR ANY DIRECT DAMAGES IN AN AMOUNT EXCEEDING THE TOTAL FEES PAYABLE BY CUSTOMER TO UPFLEX HEREUNDER IN THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM GIVING RISE TO THE DAMAGES.
You agree to defend, indemnify, and hold harmless the Upflex, its affiliates, licensors, and service providers,and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these OMB Terms and/or your use of the Service, including, but not limited to, (i) any use of the Service’s content, services, Spaces, and products other than as expressly authorized in these OMB Terms and/or the Terms of Service, (ii) your use of any information obtained from the Service, and (iii) your negligence or misuse of the Service or a Space.
- PROPRIETARY RIGHTS
11.1 No Publicity
Neither party may use or reference the other party’s name, logo, trademarks or service marks in a press release or otherwise without the prior consent of such other party in each instance.
Upflex and its affiliates are and shall remain the owners of all right, title and interest in and to the Upflex Service, including the Mobile Application, the Site, the Dashboard, and any updates, enhancements and new versions thereof, and all related documentation and materials provided or available to Customer, any Proposed User, and/or any Customer User in connection with these OMB Terms.
- GENERAL CONDITIONS
12.1 Governing Law
These OMB Terms shall in all respects be interpreted, construed in accordance with, and governed by the internal laws of the State of Delaware, without regard to its principles regarding conflict of laws. In the event of any litigation between the parties related to these OMB Terms, the parties agree to submit to personal and exclusive jurisdiction for such action in the State Courts for the County of New York, New York or the United States District Court for the Southern District of New York.
Any notice required or permitted to be delivered to Customer by these OMB Terms shall be posted to the Customer’s Dashboard. Any notice required or permitted to be delivered to Upflex by Customer pursuant to these OMB Terms shall be submitted via email at [email protected]
12.3 Force Majeure
Nonperformance of either party under these OMB Terms shall be excused to the extent and during the period that performance is rendered impossible by strike, fire, flood, earthquakes, governmental acts or orders or restrictions, failure of suppliers, failure of Space Partners, pandemics, epidemics, public health crises, or contractors, or any other reason where failure to perform is beyond the reasonable control and not caused by the negligence of the non-performing party.
If any provision or provisions of these OMB Terms shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
These OMB Terms are not transferable and may not be assigned by Customer, in whole or in part, without the prior written consent of Upflex; provided that Customer may assign these OMB Terms without such consent, but with notice to Upflex, in connection with a merger or a sale of all of the equity or assets of Customer. Subject to the foregoing, these OMB Terms shall be binding upon all successors and assigns of a party.
12.6 Attorney’s Fees
In any litigation between the parties, the prevailing party shall be entitled to reasonable attorney fees and all costs of proceedings incurred in enforcing these OMB Terms.
12.7 Independent Contractor
Upflex and Customer are and shall remain independent contractors. Neither party is the representative or agent of the other and neither party has any power to assume any obligations on behalf of the other. Customer hereby represents that the individual clicking to accept these OMB Terms is authorized by Customer to bind, and does hereby bind, Customer to the terms hereof.