You agree to perform and abide by and cause your employees, agents, guests, invitees, contractors and subcontractors (“Invitees“) to abide by this Agreement and any applicable House Rules provided by the Host. You must not do or permit anything to be done which might cause or contribute to a breach of the Host’s lease, or prejudice or give grounds for the determination of the estate, title, right or interest of the Host (or any party holding a superior interest) in the Building.
Possession and Delivery
The Space is accepted by the Guest in its “as-is” “where-is” condition and configuration. The Guest accesses and uses the Space at its own risk, cost and expense. If, for any reason, the Host is unable to provide use of the Space at the anticipated Start Date, you agree that the Term is automatically postponed until possession becomes available. The Guest releases the Host from liability for any losses, expenses or damages incurred by the Guest in connection with the Host’s failure to deliver possession of the Space , and any such failure does not affect the validity of the Licence. If the Host does not deliver possession of the Space within one week after the anticipated Start Date, the Guest may by written notice to the Host cancel the Licence with no penalty and is entitled to a full refund of amounts paid.
Workspace Use and Access
You agree to use the Space provided to you for general office purposes only and you may not use the Space to carry out any illegal activities or use the Space (A) in violation of law, the House Rules or any other reasonable regulations or rules adopted by Host during the Term, or (B) for any immoral, unlawful, or objectionable purposes. Further, you must not use or permit the usage of any illegal drug or substance and must not make or permit any unreasonable or unnecessary noises or odors in or upon the Space or the Building. You must not commit, or suffer to be committed, any waste upon the Space or any nuisance (public or private) or other act or thing of any kind or nature whatsoever that may disturb the quiet enjoyment or cause unreasonable annoyance of any other occupants in the Building.
You agree not to exceed the Maximum Occupancy of the Space.
You must not make alterations, additions or improvements to the Space, including the installation of lighting or any phone or data lines.
You must not generate, store, install, dispose of or otherwise handle any hazardous materials in the Space, or in or around the Building, in any manner contrary to any applicable law. You are liable for the costs of any removal, clean-up and/or remediation of any hazardous materials released by you or your Invitees.
You agree that the Host has the right upon 30 days’ written notice, to require that you relocate to another Space in the same Building of equal or larger size and similar configuration for the remainder of the Term, provided that the Fees for such new workspace are no greater than the Fees for your current Space.
The Host or its authorised representatives may enter the Space at any time and such access rights do not give rise to any decrease or abatement of Fees or Taxes. Unless there is an emergency, the Host will, as a matter of courtesy, try to inform you in advance when the Host needs access to the Space to carry out testing, repair or work other than routine inspection, cleaning and maintenance. Repair work will be done solely at the discretion of Host and the failure of Host, for any reason, to furnish any maintenance or repairs does not render Host liable to you, constitute a constructive eviction or repudiation of the Licence, or give rise to a refund or abatement of Fees.
You must not cause or permit any lien, charge or encumbrance (Lien) to be placed on the Space, the Building, the land underlying the Building or the Host’s lease or any other superior interest held by any person in the Building or land. You must arrange for any such Lien to be discharged and released within 10 days of you becoming aware of such Lien.
You must take good care of and not damage, waste or make any changes to the Space or space leased or owned by the Host of which the Space is a part (the “Host Area”), or the Building. You must not alter, add, replace, remove or damage any furnishings, equipment or other personal property located in, on or around the Space, the Shared Facilities, the Host Area or the Common Areas which is not owned by you or your Invitees (“Host Personal Property“). At the expiration or earlier termination of this Agreement, you must deliver the space and all Host Personal Property to the Host in good repair, order and condition, normal wear and tear excepted. If any damage (beyond normal wear and tear) to the Space or the Host Personal Property occurs during the term of this Licence or while in your care, custody or control, you agree to pay reasonable repair/replacement costs and to notify the Host immediately upon discovery of such damage occurring, but no later than 8 hours later. You are liable for any damage caused by you or your Invitees to the Space, the Shared Facilities, the Common Areas, the Host Personal Property or the Building. YOU DISCLAIM AND WAIVE ALL WARRANTIES (AND RELEASE THE HOST FROM ALL LIABLITY) WITH RESPECT TO THE HOST PERSONAL PROPERTY, BOTH EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE
If available at the Building, you may also have access to and non-exclusive use of any portions of the Building designated for common use of tenants and others (“Common Areas”), as, and to the extent, described in the House Rules and otherwise available for common use and access under the terms of the Host’s lease. The Common Areas may be changed, relocated, altered, eliminated or otherwise modified at any time during the Term without the consent of, or notice to, Guest. The Host is not liable to the Guest for losses, expenses or damages suffered by the Guest, nor is the Guest entitled to any compensation or abatement of the Fees if any of the Common Areas are changed, relocated, altered, eliminated or otherwise modified. Unless otherwise set forth in the House Rules, the right to parking is not provided under this Agreement.
If available at the Building, you may also have access to and non-exclusive use of any shared conference rooms, office equipment, and kitchenettes (the “Shared Facilities”) located near the Space on a first-come, first-served basis as, and to the extent, described in the House Rules. The Host may make changes to the Shared Facilities from time to time during the Term including, without limitation, removal of all or portions of the Shared Facilities without your consent or notice to you. The Host is not liable to the Guest for losses, expenses or damages suffered by the Guest, nor is the Guest entitled to any compensation or abatement of the Fees if any of the Shared Facilities are not available or operational, or removed from the Building.
Keys and Security
Any keys or entry cards for the Space or the Building, which the Host lets you use, remain the Host’s property at all times. You must not make any copies of them or allow anyone else to use them without the Host’s consent. Any loss of keys or entry cards must be reported to the Host immediately, and you must pay the cost of replacement keys or cards and / or changing locks, if required by the Host.
You must not place any additional locks or bolts of any kind upon any of the doors or windows of the Space or Building nor make any changes to existing locks or the mechanisms thereof.
Name and Address
You may only conduct business in your name. You must not put up any signs on the doors to the Space or Building or anywhere else, which are visible from outside the Space you are using, or the Building.
Mail and Packages
Mail and packages may not be delivered to you at the Space or Building unless permitted by the House Rules. The postal services may be subject to additional federal, state, and local requirements.
You acknowledge that the Host is and will continue to be an equal opportunity employer and that the Host prohibits any form of discrimination in employment, against any of its employees (whether by its employees, its clients, including you, or others), including, on the basis of race, color, creed, religion, age, gender, marital status, sexual orientation, national origin, or disability, or other characteristics protected by law. In recognition of this policy, you and your officers, directors, employees, shareholders, partners, agents, representatives, contractors, customers, or invitees are prohibited from participating in any type of harassing or abusive behavior to employees of the Host or its affiliates, other clients or invitees, verbal or physical in the Building for any reason. You further agree, upon the request of the Host, to cooperate with the Host in its efforts to enforce and maintain its equal employment opportunity, non-discrimination and anti-harassment policies. The Host may immediately terminate this Agreement without cost or penalty if Guest or any of Guest’s staff engage in any behavior that the Host deems is contrary to such policies.
Both Host and Guest agree that during the Term and thereafter, the recipient of any non-public information of the other party that is designated as confidential or proprietary, that the receiving party knew or reasonably should have known was confidential or proprietary, or that derives independent value from not being generally known to the public (“Confidential Information”), will not at any time be disclosed to any person by such recipient or used for such recipient’s own benefit or the benefit of anyone else without the prior express written consent of a corporate officer of the party that owns such Confidential Information. The parties agree that if there is a breach of this obligation by either party, the other party has the right to request any remedy in law and/or equity including, but not limited to, appropriate injunctive relief or specific performance, as may be granted by a court of competent jurisdiction. Notwithstanding the foregoing, Guest accepts all risk to its intellectual property interests used in the Space, and Host has no liability (and the Guest releases the Host from any liability) arising from, your disclosure (whether intentional or not) of any of your Confidential Information to any third parties present in or around the Space or the Shared Facilities.
Neither Host nor Guest nor their respective employees and agents must knowingly solicit, recruit, hire or otherwise employ or retain the employees of the other during the Term and for 90 days following its termination or expiration without the prior written consent of the other party. Either party may solicit or recruit generally in the media. Either party may hire, without prior written consent, the other party’s employee who answers any advertisement or who voluntarily applies for hire without having been personally solicited or recruited by the hiring party.
Damages and Insurance
You are responsible for any damage you cause to the Space or any Host Personal Property beyond normal wear and tear. The Host has the right to inspect the condition of the Space from time to time and make any necessary repairs. You are responsible for arranging insurance for your personal property against all risks and for your liability to and for your employees and third parties and for maintaining any specific insurance set forth in the House Rules. You have the risk of damage, loss, theft or misappropriation with respect to any of your personal property and liability to and for your employees and third parties. You agree, as a material part of the consideration to be rendered to the Host under this Agreement, to waive any right of recovery against the Host, its directors, officers and employees (and the Guest releases the Host, its directors, officers and employees) for any damage, loss, theft or misappropriation of your property under your control and any liability to and for your employees and third parties, including for injuries to you or your Invitees in or about the Space, and you agree to hold the Host exempt and harmless and defend the Host from and against any damage and injury to any such person or to such property, arising from your use of the Space or from your failure to keep the premises in good condition and repair as provided in this Agreement. All property in your Space is understood to be under your control.
During the Term, you must pay the Fees, Deposit, and Taxes to the Host, or the Marketplace Service on behalf of the Host if directed by the Host.
On or before the Agreement Date, the following are due and payable by the Guest (the “Initial Payment”):
- the Monthly Charge for the first full calendar month of the Term and a pro-rated portion of the Monthly Charge for the first partial month of the Term (if you start your Term after the first calendar day of the month);
- the Setup Charge;
- the Deposit; and
- any applicable Taxes.
For each following month of the Term, the Monthly Charge and any applicable Taxes are due and payable in advance on the first day of the calendar month. If the Term ends before the last calendar day of the month, the pro-rated portions of the Monthly Charge and any applicable taxes for the final partial month of the Term are due and payable.
If any payment due to Host is not received within 15 days of the due date, the Host may, at the Host’s discretion, terminate this Agreement without cost or penalty to Host. Without limiting the rights of the Host, all remaining Fees and Taxes for the remainder of the Term are immediately due and payable by the Guest.
All Fees and Taxes paid by Guests are non-refundable, except as expressly stated in this Agreement.
The Host may cancel this Agreement (without cost or penalty to Host) by written notice to the Guest (terminating on the date nominated by the Host) if a contract has been entered into for the sale of the Building.
The Host may not cancel this Agreement except as provided in this Agreement, or as otherwise entitled at law.
Strict Cancellation Terms
You may cancel this Agreement within one day of the Agreement Date and receive a full refund of the Initial Payment.
If you choose to cancel after the Agreement Date plus one day, but before the Start Date, the Fees and Taxes will not be refunded, but you are no longer obligated to pay the remaining Fees and Taxes for the Term. The Deposit will be refunded, if you cancel before the Start Date.
Once the Term begins, if you cancel the Licence before the Minimum Term, (a) no refund is available for the then-current calendar month and the next full calendar month and (b) 50% of the remaining unpaid Fees and taxes for the Minimum Term are immediately due and payable unless a default has occurred and is continuing, in which case, 100% of all remaining Fees and Taxes for the remainder of the Minimum Term are immediately due and payable by the Guest.
Flexible Cancellation Terms
You may cancel this Agreement within one day of the Agreement Date or at least 30 days before the Start Date and receive a full refund of the Initial Payment.
If you choose to cancel after the Agreement Date plus one day, but less than 30 days before the Start Date, 50% of the Fees and Taxes will be refunded, but you are no longer obligated to pay the remaining Fees and Taxes for the Minimum Term. The Deposit will be fully refunded, if you cancel before the Start Date.
After the Start Date, if you cancel the Licence before the Minimum Term, (a) no refund is available for the then-current calendar month and the next full calendar month and (b) 50% of the remaining unpaid Fees and taxes for the Minimum Term are immediately due and payable unless a default has occurred and is continuing, in which case, 100% of all remaining Fees and Taxes for the remainder of the Term are immediately due and payable by the Guest.
The Deposit will be held by Host during the Term as security for the performance by you of all of your obligations under this Agreement. The Host may apply any portion of the Deposit to amounts owed to the Host for (A) any damage to the Host Personal Property, the Space, the Host Area, the Shared Facilities, or the Building, (B) any overdue Fees or Taxes and/or (C) amounts Host may incur for any losses, expenses or costs arising out of your default under this Agreement (including any damage or deficiency arising in connection with the relicensing of the Space), in each case solely at the discretion of the Host. If, upon the expiration or earlier termination of this Agreement, you have fully complied with all terms of this Agreement and the House Rules, remitted all amounts due and payable, and surrendered the Space and all keys, access cards, building passes and all other property provided to you by the Host (including the Host Personal Property), the Deposit will be returned to you within 60 days after the expiration or earlier termination of the Term, less any amounts applied as described above. The Host is not required to maintain the Deposit in a separate account. The Guest is not entitled to any interest that may be earned on the Deposit. If any portion of the Deposit is used or applied by Host during the Term, then within 5 days after Host gives written notice to you, you must deposit with the Host cash in (or transfer by electronic funds transfer into any account nominated by the Host) an amount sufficient to restore the Deposit to the original amount. Failure to do so constitutes an essential default under this Agreement, entitling the Host to immediately terminate the Licence.
If an End Date is specified, the Licence terminates on the End Date with no automatic renewal.
If no End Date is specified, the Licence automatically renews after the Minimum Term on a recurring basis for additional one-month periods unless you give the Host or the Marketplace Service at least 30 days’ written notice prior to the later of the end of the Term and the end of each renewed Licence.
If the Host opts to change the Monthly Charge on renewal, the Host will provide at least 60 days notice. There is no additional Setup Charge for Licences that renew.
If the Host opts not to renew the Licence, the Host will provide at least 60 days notice.
You are in default of this Agreement if (a) you fail to pay when due all or any portion of the Fees or Taxes, if the failure continues for 3 days after notice to you, which notice is in satisfaction of and not in addition to any notice required by law (b) you fail to comply with any term of this Agreement, if the failure is not cured within 10 days after notice to you, or (c) you attempt to sublicence, assign, share possession or otherwise transfer any right, entitlement or interest in this Agreement without Host’s prior written consent. Upon any default, the Host has the right without notice to terminate this Agreement, in which case you must immediately surrender the Space and the Host Personal Property to the Host. If you fail to surrender the Space and/or the Host Personal Property, the Host may, in compliance with applicable law and without limiting or prejudice to any other right or remedy, enter upon and take physical possession of the Space and the Host Personal Property and you are liable for all past due Fees and Taxes, all Fees and Taxes due for the remainder of the Term, all costs incurred by Host in exercising its rights, including legal costs and costs incurred to retake possession of the Space and Host’s Personal Property, and other losses, costs, expenses and damages which Host suffers or may suffer as a result of Guest’s default. In addition to the right to terminate this Agreement and collect damages, the Host may pursue any other remedy now or hereafter available at law or in equity.
You agree to indemnify, defend and hold the Host, its landlord and the owner of the Building, if applicable, and any mortgagee harmless (and release the Host) from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable legal fees, arising out of or in connection with you and your Invitees’ use of a Space, Common Areas or Shared Facilities, or any violation of applicable law, this Agreement or House Rules. Nothing contained in this Agreement will be construed to create privity of estate or of contract between you and the Host’s landlord or building owner, if applicable.
EXCEPT AS PROVIDED IN THIS AGREEMENT AND IN ANY HOUSE RULES, THE HOST IS PROVIDING ITS SPACE TO THE GUEST “AS IS,” AND HOST DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SPACE, WHETHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. HOST CANNOT AND DOES NOT GUARANTEE AND DOES NOT PROMISE TO GUEST, ANY SPECIFIC RESULTS FROM USE OF THE SPACE. HOST DOES NOT REPRESENT OR WARRANT THAT THE SPACE WILL MEET YOUR REQUIREMENTS; THAT THE SPACE MEETS APPLICABLE LEGAL STANDARDS OR IS SAFE AND SUITABLE FOR YOUR INTENDED USE.
IN NO EVENT WILL HOST OR ITS DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES OR SUPPLIERS BE LIABLE TO GUEST, FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS, LOST DATA, PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, ARISING FROM THE GUEST’S USE OF THE SPACE, ANY CONTENT OR OTHER MATERIALS ON, ACCESSED THROUGH OR DOWNLOADED FROM THE MARKETPLACE SERVICE, OR GUEST’S USE OF THE SPACE, EVEN IF THE HOST IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HOST’S LIABILITY TO GUEST OR ANY PARTY CLAIMING THROUGH GUEST, FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, IS LIMITED TO THE AMOUNT PAID FOR THE SPACE, IN THE 12 MONTHS PRIOR TO THE INITIAL ACTION GIVING RISE TO LIABILITY. THIS IS AN AGGREGATE LIMIT. THE EXISTENCE OF MORE THAN ONE CLAIM IN CONNECTION WITH THIS AGREEMENT WILL NOT INCREASE THIS LIMIT.
YOU UNDERSTAND AND AGREE THAT MARKETPLACE SERVICE IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN GUEST AND HOST, NOR IS MARKETPLACE SERVICE A REAL ESTATE BROKER, AGENT OR INSURER IN CONNECTION WITH THIS AGREEMENT. THE PARTIES INDEMNIFY, DEFEND AND HOLD HARMLESS THE MARKETPLACE SERVICE FROM and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable LEGAL fees, arising out of or in connection with ANY use of THE Space, or any violation of applicable law, this Agreement or House Rules.
Suspension of Services
The Host may by notice suspend the provision of services (including access to the Space) for reasons of political unrest, strikes, terrorism, Acts of God or other events beyond the Host’s or the Host’s landlord’s or building owners’ reasonable control. This Agreement automatically terminates if the Space is rendered unusable as a result of a fire, other casualty or a condemnation. As between Host and Guest, all proceeds of any condemnation award belongs to Host and all insurance proceeds of Host is retained by and belongs to the Host. The Host may also suspend the provision of services (including access to the Space) in the event the Space or the Building is being renovated or repaired (or access to the building is restricted by the Host’s landlord or building owners, in which event you (at the Host’s reasonable cost) will be (with no obligation on the Host to do so, and no liability to the Host if you are not) relocated to another space within the building, or to another building .
You may not sublicence, assign, share possession or otherwise transfer any right, entitlement or interest in this Agreement or allow any third party to use any portion of the Space, the Shared Facilities or the Common Areas without Host’s prior written consent. Any such sublicence (if approved by the Host) must be on the same form as this Agreement and be consummated through the Marketplace Service.
YOU ACKNOWLEDGE THAT THIS AGREEMENT IS NOT A LEASE OR ANY OTHER INTEREST IN REAL PROPERTY. IT IS A CONTRACTUAL ARRANGEMENT THAT CREATES A REVOCABLE NON-EXCLUSIVE LICENCE. The parties do not intend to create a lease or other tenancy arrangement or any other interest in real property for the benefit of the Guest through this Agreement. The Host retains legal possession and control of the Space assigned to Guest. The Host’s obligation to provide space and services to Guest is subject, in all respects, to the terms of the Host’s lease with the Host’s landlord, if applicable. This Agreement and the Licence granted under this Agreement terminates simultaneously with the termination of the Host’s lease or other tenancy arrangement or the termination of the operation of the Host Area for any reason at no cost, liability or penalty to Host. You do not have any rights under the Host’s lease with its landlord, if applicable. When this Agreement expires or is earlier terminated, your Licence to occupy the Space is automatically revoked. You agree to remove your personal property and leave the Space as of the date of such expiration or termination. The Host is not responsible for your personal property left in the Space after expiration or termination, and you release the Host from any liability. If you fail to remove your personal property, at the Host’s option, such personal property l (a) is deemed to be assigned to the Host and become the property of the Host, or (b) may be removed from the Space by the Host at the Guest’s expense.
You represent that you have dealt with no broker or real estate agent in connection with this Agreement. You agree to indemnify, defend and hold the Host harmless from any claims of any brokers or agents claiming to have represented you in connection with this Agreement.
This Agreement and any applicable House Rules are subordinate to any underlying lease, mortgage, deed of trust, ground lease or other lien now or subsequently arising upon the Space or the Building and to renewals, modifications, refinancings and extensions thereof including the Host’s lease with the Host’s landlord and to any other agreements to which the Host’s lease is subordinate.
For each and every month or portion thereof that you continue to use or occupy the Space after the expiration or earlier termination of this Agreement, you must pay the Host an amount equal to the greater of (a) $2,500 plus Taxes and (b) two times the Monthly Charge plus Taxes. Your payment of such amounts will not be construed to extend the Term or prevent the Host from immediate possession of the Space by summary proceedings, restricting/denying access or otherwise. This Section survives the expiration or sooner termination of this Agreement. The acceptance of any Fees after the expiration or earlier termination of this Agreement does not preclude the Host from commencing and prosecuting a holdover or summary eviction proceeding. Each of Host and Guest acknowledge and agree that any statutory right to hold over beyond the expiration date or sooner termination of this Agreement is waived to the fullest extent permitted by law.
All demands, approvals, consents and notices must be sent by registered mail (including by express post) or electronic mail at the address specified for each party under the Section entitled “Definitions”. This Agreement will be interpreted and enforced in accordance with the laws of the State or Commonwealth in which the Building is located. If either party institutes a suit against the other for breach of or to enforce this Agreement, the prevailing party is entitled to all of its costs and expenses, including, without limitation, reasonable legal fees. Each of Host and Guest waive any right to trial by jury in any proceeding based upon a breach of this Agreement to the fullest extent permitted by applicable law. This Agreement may not be modified, amended or terminated, and Guest’s obligations are in no way discharged or waived, except as expressly provided in this Agreement or by written instrument executed by the parties. If any term, covenant or condition of this Agreement or any application thereof is illegal, invalid or unenforceable, the remainder of this Agreement and any other application of such term, covenant or condition is not affected and remains in force. This Agreement will be construed without regard to any presumption or other rule requiring construction against the party causing this Agreement to be drafted.