Optality Business Terms and Conditions

LAST UPDATED 19 MAY 2023

1) DEFINED TERMS.

“Agreement” means these Business Terms and Conditions.
Acceptable Use Policy” means the terms that governs the use of the app and web portal available at {Link}
“Client User” means Client’s employees and authorized users for whom Platform Access is purchased through an Order for access to the Optality Platform.
“Corporate Account”: a centralized business account within the Optality Platform through which Client Users can be associated and/or linked to, and through which the Dashboard will be accessed.
“Dashboard”: Optality’s browser-based online dashboard, which provides a portal to Client’s billing information and all account settings.
“Data Processing Agreement” or “DPA” means the Data Processing Agreement available at: https://upflex.com/legal/dpa. To the extent the DPA conflicts with this Agreement, the terms of the DPA shall prevail.
“Optality Client Service Order Form” means the signed Order executed by Client, Newmark (as defined below) and Upflex.
“Personal data” is defined in the Optality DPA available at https://upflex.com/legal/DPA/.
“Credit Pool” means a prepaid, non-refundable pool of funds in the amount as set forth in an applicable Order and set aside for on-demand payment for booking of Spaces.
“Space” or “Spaces” means desks, meeting rooms, individual offices, and partial, full or multiple floors available for booking through the Optality Platform.
“Space Partners” are owners and/or operators of Spaces.
“Optality App” means the mobile application through which the Optality Platform powered by Upflex can be accessed and the Services provided.
“Optality Platform” means the online platform through which Client Users may request on-demand office space from independent providers that Upflex lists on such platform.

2) PROVISION OF SERVICES

Services. Optality, powered by Upflex, enables Space Partners to offer for booking or otherwise make available Spaces for use by Client Users or companies that book Spaces through the Optality Platform or the Optality App (collectively, the “Services”). Access to and booking of Spaces through the Optality Platform or the Optality App requires registration for an account as described in Client Account Creation below.
Maintenance and Support. Subject to Upflex’s or Newmark’s receipt of all fees due from Client (as applicable and set forth in the Order), Upflex will use commercially reasonable efforts to provide Client maintenance and support at [email protected].

3) CLIENT ACCOUNT CREATION

Account Setup. Upflex will create a Corporate Account under which Client Users can create individual accounts (“Client User Account(s)”). All fees incurred during use of the Services shall be billed as set forth in the Order. Client will pay for all costs incurred by Client Users as set forth in the Order.
Client Users. Client will provide a list of employees who shall be eligible to sign up and create individual Client User Accounts in the Optality Platform. Client will provide Upflex with each Client User’s email address only after obtaining appropriate consent as required by applicable law. Upflex will use the email addresses to contact each Client User for on-boarding purposes and then to provide the Services. During the on-boarding process each Client User may install the Optality App or use the Platform via a web browser but must (i) register for a Client User Account for the Services; and (ii) confirm the mobile number provided during the registration process for the purpose of using the Services. To enable access to the Services, Client must provide each Client User’s full name, email address (at the Client’s top-level domain), and other limited identifying information about the Client User for the purposes of verifying the identity of the Client User and then to provide the Services (collectively, the “Linking Data “). All Linking Data must be shared with Upflex via Dropbox, or other secure delivery mechanisms that will be provided by Upflex. No other delivery mechanism will be used to deliver the Linked Data, including email or other communication platform. Upflex will use the Linking Data to authenticate the Client User’s account. Neither Upflex nor Newmark shall be liable to Client, any Client User, or any other party with respect to the provision of the Linked Data, including inaccurate or incomplete Linking Data supplied by Client or Client User.
Client User Charges. Client agrees that Client is responsible for all Client Users, including for all charges incurred by a Client User, regardless of whether such charges were authorized between Client User and Client. Client agrees that neither Upflex nor Newmark shall be responsible for Client User charges incurred after Client has attempted removal of such Client User from the Services to the extent Client provides incomplete or inaccurate Client User removal information via the Optality Platform. Client must notify Upflex support promptly of any Client Users that Client is seeking to remove but is unable to. Client shall be responsible for Client User charges incurred due to fraudulent or other unpermitted activity through the Services due to Client’s own fault or negligence. Client will notify Newmark and Upflex promptly upon discovery of fraudulent or unpermitted activity occurring under the Client’s Corporate Account. Client will not be responsible for fraudulent or unpermitted activity resulting from the gross negligence or security breach of Upflex.
Restrictions. Client will, and will cause all Client Users to, use the Services solely as set forth in this Agreement, the Order, the Optality Terms of Use [link], the Acceptable Use Policy [link], the DPA [link], and the Optality Privacy Notice [link] (collectively, the “Terms”). No inconsistent or additional terms or conditions of any purchase order, online terms, or other document submitted by either party shall apply unless executed by both parties. All such other terms and conditions are hereby rejected, and no separate notice of such rejection need be given by either party. If any of the terms of this Agreement are in conflict with the DPA, the DPA shall prevail. Upflex reserves the right to suspend access to the Services for Client and/or Client Users for violations of these Terms. Client acknowledges that certain Client shall not, and shall not authorize others to, (a) decompile, disassemble, reverse engineer or otherwise attempt to derive the source code or underlying technology, methodologies or algorithms of the Services, (b) modify, copy, translate, or create derivative works of, the Services, (c) sublicense, lease, rent, sell, give, or otherwise transfer or provide the Services to any unaffiliated third party, (d) upcharge, increase or otherwise modify the Client User charges as calculated through the Services for any usage of the Services, or (e) impose any additional fees or charges on a Client User related to use of the Services. Upflex reserves all rights not expressly granted to Client or a Client User under the Terms.

4) CLIENT ACCOUNT ADMINISTRATION

Dashboard. Through the Optality Platform, Client will have access to Optality’s browser-based online dashboard, which provides a portal to Client’s billing information and all account settings (the “Dashboard”). The Dashboard will enable Client to (i) view a current list of all Client Users; (ii) provide additional Linking Data to invite additional Client Users; (iii) disable or revoke any Client User’s access; (iv) view detailed usage information for each Client User; (v) prepare and review activity reports based on Client Users’ data; and (vi) update all account settings. Client agrees to use all data on the Dashboard solely for legitimate business purposes including, but not limited to, business expense processing, accounting, and budgeting purposes, and in compliance with the Privacy Notices and all applicable laws. Upflex reserves the right to add, remove, and update features and functionality of the Dashboard at any time, while providing written notice to Client.
Account Administrator. Client may appoint new or additional Corporate Account Administrator(s) through the Dashboard. Client agrees to (i) maintain all Services login credentials in confidence, (ii) only permit authorized Corporate Account administrators to access the Dashboard, and (iii) ensure all information of the Corporate Account administrators contained in the Dashboard is current, accurate, and complete. Client shall limit access to Dashboard data to only those Client personnel who have a legitimate business need to access such Dashboard data. Client shall be responsible for all activity that occurs under its Services login credentials.
Client User Updates. It is Client’s sole responsibility to keep and maintain an accurate list of its current authorized Client Users entitled to access the Services under the Client’s Corporate Account.

5) FEES AND PAYMENTS

Fees. In consideration of Upflex’s and Newmark’s provision of the Services, Client shall pay all Client User charges and any applicable Services fees as described in an Order or as otherwise set forth in a separate written agreement between Client and Upflex and/or Newmark (collectively, the “Fees”). All Fees are nonrefundable except as expressly provided otherwise herein or in the Order.
Session Duration. All Spaces must be booked for the minimum period stated (if any) in the Upflex Platform at the time of booking and Client will be charged for such minimum period regardless of actual usage. A Client User must check in and check out of a Space via the Optality App or onsite at the location. If the Client User does not check out of a Space, the Client will be charged for additional time based on the hourly rate for such Space until the closing hour of the Space Partner for the day or until another user has checked in for that specific space on the date of the booking.
Cancellation. A Client User must cancel any Space reservation at least 24 hours in advance in order to receive a full refund. Client will be charged the full amount of the booked Space if the Client User cancels within 24 hours of the start time of the booked Space.
Payment Terms. Unless otherwise agreed upon in the applicable Order, (i) all payments for Platform Access hereunder are due in advance on the first day of each calendar month, (ii) all payments for Credit Pools shall be paid as set forth in the applicable Order; and (iii) if purchasing a Credit Pool with Upflex, Client may be notified when the Client Credit Pool amount is at 25% of the starting total Credit Pool amount Upflex reserve the right to immediately suspend Client’s Corporate Account and suspend any or all Client User Accounts in the event of any unpaid Fees by Client. All late payments shall bear interest at a maximum rate of 3% per month or the maximum allowed by applicable law not to exceed 3%.
Taxes. All Fees are exclusive of applicable taxes, and Client shall 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 or Newmark’s income, as applicable. All payments shall be processed in United States dollars.

6) TERMINATION

In the event Client does not have an active Order, Upflex and/or Newmark may permanently terminate or suspend your access to the Services without notice and liability for any reason, including, if in our sole determination you violate any provision of this Agreement, or for no reason. Upflex and/or Newmark may, at any time, without prior notice, and for any reason, change the Services; stop providing the Services or features of the Services, to Client or to Client Users generally; or create usage limits for the Services. Upon suspension or termination of Client’s access to or use of the Services and/or Client’s relationship with Upflex and/or Newmark, for any reason or no reason, (i) Client may no longer use any portion of the Services in any manner and will immediately delete or destroy all elements of the Services in its possession or control, and (ii) Client will continue to be bound by the Terms.

7) PRIVACY, DATA PROTECTION AND INFORMATION SECURITY

Privacy. Upflex’s processing of Personal data is subject to this Agreement, including the DPA.
Personal Data Restrictions. The Services generate Personal data regarding Client’s employees that is provided to the Client. Client agrees that any Personal data of its employees obtained in connection with this Agreement will be used solely in connection with the use of the Services and for no other purpose, and that the Personal data will not be downloaded or shared with unaffiliated third parties without the express, written permission of Upflex. Client agrees not to rent, lease, share sell, or otherwise transfer Personal data for any purpose. Any violation of t this Section 7(b) may result in immediate termination of this Agreement and/or any Order associated with this Agreement by Upflex or Newmark. Upflex will share certain Personal data with Newmark for the purposes of providing Client with the services described in the applicable order.
Security. The Optality Platform generates personal data that is provided to the Client. Client 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 Client security measures (“Information Security Incident“). Client shall immediately notify Upflex and Newmark in the event that Client learns or has reason to believe that an Information Security Incident has occurred including at least: (1) the nature of the Information Security Incident; (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, Client will (a) take all reasonable steps to investigate, remediate, and mitigate the effects of the Information Security Incident, and (b) provide Upflex and Newmark with assurances reasonably satisfactory to Upflex and Newmark 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 Client, and if Upflex or Newmark determines that notices (whether in Upflex’s, Newmark’s or Client’s name) or other remedial measures are warranted, Client will, at Upflex’s or Newmark’s request and at Client’s cost and expense, undertake the aforementioned remedial actions.

8) CONFIDENTIALITY

Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical, financial or Personal data relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Confidential Information of Upflex includes non-public information regarding features, functionality, and performance of the Services. Confidential Information of Client includes non-public data provided by Client to Upflex to enable the provision of the Services. The Receiving Party agrees: (a) to take reasonable precautions to protect such Confidential Information, and (b) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five years following the disclosure thereof or any information that the Receiving Party can document (1) is or becomes generally available to the public, (2) was in its possession or known by it prior to receipt from the Disclosing Party, (3) was rightfully disclosed to it without restriction by a third party, (4) was independently developed without use of or reference to any Confidential Information of the Disclosing Party, or (5) is required to be disclosed by law, but only to the extent and for the purpose of such required disclosure after providing the Disclosing Party with advance written notice. Provided, however, that the foregoing shall not apply to Personal data, which shall remain Confidential Information regardless of whether such information is in the public domain or allegedly free of confidences.

9) RELATIONSHIP BETWEEN THE SPACE AND CLIENT.

Upflex and Newmark are not responsible for, nor do they have control over, aspects of the Spaces and/or the listings, including but not limited to accuracy, cleanliness, availability of adequate services, safety, and security. In addition, Upflex and Newmark are not responsible for, nor do they have control over how the Client User engages with each Space. Client may contact Upflex for any immediate issues with the Space. Client may also contact their Newmark Account Manager for any questions or concerns regarding their Accounts and scope of services. Client is solely responsible for compliance with any and all laws, rules, regulations and tax obligations that may apply to use of the Services. Client is obligated to comply with the local house rules of the Space Partner. The local rules of Space Partners will be accessible in the Services.

10) REPRESENTATIONS AND WARRANTIES; DISCLAIMER OF WARRANTIES

Client Representations and Warranties. Client represents and warrants that: (i) Client has all necessary consents, rights, and permissions to provide Upflex and/or Newmark, as applicable, with the Linking Data and any other Personal data or information provided to Upflex and/or Newmark, as applicable, hereunder in connection with the Services, Client’s Accounts, and each Client User (including but not limited to information about each Client User’s Space usage); (ii) Client is in compliance, and shall remain in compliance with all applicable laws, including but not limited to applicable privacy laws; and (iii) Client will use the Services only in compliance with Upflex’s standard published policies then in effect (including this Agreement and the DPA.).
Upflex Warranty. During the term of an Order, Upflex warrants that the Services, when used in accordance with this Agreement, will operate as described in this Agreement in all material respects. Upflex shall use reasonable efforts to maintain the Services in a manner which minimizes errors and interruptions in the Services. Upflex shall use shall provide 48 hour advance notice in writing of any scheduled service disruption.
Disclaimer of Warranties.
1. EXCEPT AS EXPRESSLY PROVIDED HEREIN, UPFLEX PROVIDES THE SERVICES AND THE OPTALITY PLATFORM “AS IS” AND WITHOUT WARRANTY. UPFLEX DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICES AND OPTALITY PLATFORM WILL MEET CLIENT’S OR CLIENT USERS’ REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES OR THE OPTALITY PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE. UPFLEX MAKES NO WARRANTY OR REPRESENTATION THAT THE SPACES, SERVICES, OPTALITY PLATFORM, OR CONTENT (INCLUDING THE LISTINGS) WILL MEET CLIENT’S REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. UPFLEX MAKES NO REPRESENTATION, WARRANTY OR CONDITION REGARDING THE QUALITY OF ANY LISTINGS OR SPACES, INCLUDING BUT NOT LIMITED TO THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE SERVICES OR THE OPTALITY PLATFORM. UPFLEX HEREBY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, (1) ANY IMPLIED OR STATUTORY WARRANTIES COVERING THE SERVICES OR THE OPTALITY PLATFORM, AND (2) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. CLIENT ACKNOWLEDGES AND AGREES THAT UPFLEX DOES NOT HAVE AN OBLIGATION TO CONDUCT BACKGROUND CHECKS ON ANY SPACE OPERATORS.
2. UPLEX AND NEWMARK DO NOT CONTROL AND IS NOT RESPONSIBLE FOR THE ACTIONS OF OTHER INDIVIDUALS THAT CLIENT AND/OR CLIENT USERS ENCOUNTER THROUGH USE OF THE SERVICES, INCLUDING BUT NOT LIMITED TO INDIVIDUALS ENCOUNTERED AT SPACES. CLIENT AND CLIENT USERS SHOULD BE AWARE THAT OTHER USERS, GUESTS, AND SPACE PARTNERS MAY NOT BE WHO THEY CLAIM TO BE. UPFLEX AND NEWMARK DO NOT PERFORM BACKGROUND CHECKS ON USERS, GUESTS, OR SPACE PARTNERS, NOR DOES UPFLEX OR NEWMARK GUARANTEE THAT USERS, GUESTS, OR SPACE PARTNERS’ PROFILES OR ACCOUNT INFORMATION IS ACCURATE. UPFLEX AND NEWMARK DO NOT ENDORSE, SUPPORT, OR VERIFY THE FACTS, OPINIONS, OR RECOMMENDATIONS OF USERS, GUESTS, OR SPACE PARTNERS. IF A DISPUTE ARISES BETWEEN USERS, UPFLEX AND NEWMARK HAVE NO RESPONSIBILITY OR OBLIGATION TO PARTICIPATE, MEDIATE, OR INDEMNIFY ANY PARTY.

11) INDEMNIFICATION.

Client shall defend, indemnify, and hold harmless Upflex and Newmark, their respective affiliates, licensors, and service providers, 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 Client’s violation of this Agreement and/or Client’s use of the Services, including, but not limited to, (a) Client’s or a Client User’s use of the Services, the Optality Platform, and/or any Space other than as expressly authorized in this Agreement, and/or (b) Client or a Client User’s negligence or misuse of the Services, the Optality Platform, and/or a Space. Upflex shall defend, indemnify, and hold harmless Client, 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 Upflex’s gross negligence and willful misconduct with regard to the Services performed by Upflex (and/or its partners or subcontractors), or arising out of Upflex’s gross negligence and willful misconduct with regard to its breach of this Agreement, including the warranties set forth herein.

LIMITATIONS OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL UPFLEX, NEWMARK OR THEIR SUBCONTRACTORS OR SUPPLIERS BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF BUSINESS, LOSS OF PROFIT, LOSS OR CORRUPTION OF DATA, LOSS OF GOODWILL OR REPUTATION, WASTED MANAGEMENT TIME OR OTHER INTANGIBLE LOSSES), IN EACH CASE, WHETHER ARISING OUT OF OR RELATING TO THE USE OF, INABILITY TO USE, OR RELIANCE ON, THE SERVICES, THE CONTENT OR ANY LINKS ON THE SERVICES. WITHOUT LIMITING ANY OF THE FOREGOING AND IN ADDITION THERETO, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER NEWMARK NOR UPFLEX NOR ANY OF THEIR SUBCONTRACTORS OR SUPPLIERS ASSUME ANY LIABILITY OR RESPONSIBILITY FOR ANY (i) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND/OR USER CONTENT; (ii) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER, RESULTING FROM CLIENT’S ACCESS TO OR USE OF THE SERVICES AND/OR CONTENT; (iii) INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES; (iv) BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY; (v) ERRORS OR OMISSIONS IN THE CONTENT OR USER CONTENT OR FOR ANY DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT OR USER CONTENT, INCLUDING CLIENT’S SUBMISSION OF USER CONTENT THROUGH OR IN CONNECTION WITH THE SERVICES; (vi) HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES, CLIENT USER ACCOUNT, CORPORATE ACCOUNT, CONTENT OR USER CONTENT; AND/OR (vii) USER CONTENT OR THE DEFMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL UPFLEX’S, NEWMARK’S OR THEIR SUBCONTRACTORS’ OR SUPPLIERS’ TOTAL LIABILITY TO CLIENT FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, CAUSES OF ACTION, LOSSES OR COSTS EXCEED THE AMOUNT CLIENT PAID TO UPFLEX FOR ACCESSING THE SERVICES. THE LIMITATION OF LIABILITY SET FORTH ABOVE APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF UPFLEX, NEWMARK OR THEIR SUBCONTRACTORS AND SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

12) MISCELLANEOUS

Publicity. Upflex and Newmark may use Client’s name, logo, trademarks, and/or service marks (collectively, the “Marks”) for marketing purposes; provided, however, that the client give written approval in advance to do so and can, at any time, revoke such approval with no advance notice. Revocation of approval must be made in writing.
Ownership. Upflex and its affiliates are and shall remain the owners of all right, title, and interest in and to the Services, including the Optality Platform, the Dashboard, and any updates, enhancements, and new versions thereof, and all related documentation and materials provided or made available to Client and/or any Client User in connection with this Agreement.
Insurance Requirements. Client shall, at its own cost and expense, maintain and keep in force at all times: (1) commercial general liability insurance, which shall include coverage against claims for personal injury, death, or property damage occurring on, in or about any Space with limits appropriate to Client’s business and with respect to the Space, personal property, and Client’s conduct of business therein; (2) employers’ liability and workers’ compensation insurance to the extent required by applicable state laws, and (3) cybersecurity insurance, which shall include coverage against claims for incidents associated with breaches of security and this Agreement by Client of not less than $1,000,000.
Governing Law and Venue. This Agreement shall be governed by the internal laws of the State of New York, without regard to its principles regarding conflicts of laws. In the event of any litigation between the parties related to this Agreement, 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, unless otherwise stated in this Agreement. Each party waives any right to trial by jury with respect to any dispute, suit, action or proceeding arising out of or relating to this Agreement or otherwise relating to the relationship of the parties, whether in contract, tort or otherwise.
Notices. Any notice required or permitted to be delivered to Client pursuant to this Agreement shall be sent in writing and/or email to the Client’s authorized representative set forth in the applicable Order. Any notice required or permitted to be delivered to Upflex by Client pursuant to this Agreement shall be submitted via email at[email protected] and/or [email protected].
Force Majeure. Other than with respect to payment obligations hereunder, nonperformance of either party under this Agreement 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.
Severability. If any provision or provisions of this Agreement 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.
Assignment. This Agreement is not transferable and may not be assigned by Client, in whole or in part, without the prior written consent of Upflex; provided, however, that Client may assign this Agreement without such consent, but with notice to Upflex, in connection with a merger or a sale of all of the equity or assets of Client. Subject to the foregoing, this Agreement shall be binding upon all successors and assigns of a party.
Attorneys’ Fees. In any litigation between the parties, the prevailing party shall be entitled to reasonable attorneys’ fees and all costs of proceedings incurred in enforcing this Agreement.
Independent Contractor. Upflex and Client 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.
Survival. All outstanding payment obligations and rights and obligations of the parties which by their nature are intended to survive, shall survive the termination of this Agreement.
Enforcement; Third Party Beneficiaries. Client hereby agrees that this Agreement shall inure to the benefit of and be enforceable by Newmark & Company Real Estate, Inc. and its affiliates (collectively “Newmark”) as third-party beneficiaries, and the respective successors and assigns of each of the foregoing.