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1. Agreement

1.1.- In this Agreement: 

    • “Affiliate” means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;
    • “Agreement” means this software as a service agreement (including the Schedules) and any amendments to it from time to time;
    • “Business Day” means any week day, other than a bank or public holiday in UK
    • “Business Hours” means between 09:00 and 17:30 GMT on a Business Day;
    • “Charges” means the amounts payable by the Customer to the Provider under or in relation to this Agreement (as set out in Schedule [3]);
    • “Control” means the legal power to control (directly or indirectly) the management of an entity (and “Controlled” will be construed accordingly);
    • “Customer Confidential Information” means
      • (a) means any information disclosed (whether disclosed in writing, orally or otherwise) by the CUSTOMER to the PROVIDER during the Term that is marked as “confidential”, described as “confidential”, should have been understood by the PROVIDER at the time of disclosure to be confidential. This includes, but is not limited to, all personal data, and personal account information, whether or not such is marked as confidential or not.
    • “Customer Data” means
      • (a) the data inputted by the CUSTOMER or the PROVIDER on the CUSTOMER's behalf for the purpose of using THE PLATFORM or facilitating the CUSTOMER's use of THE PLATFORM.
    • "Customer Materials" all works and materials:
      • Uploaded to, stored on, processed using or transmitted via THE PLATFORM by or on behalf of the CUSTOMER or by any person or application or automated system using the CUSTOMER's account.
    • “Defect” means a defect, error or bug having an adverse effect on operation or functionality of the Platform, but excluding any defect, error or bug caused by or arising as a result of:
      • (a) An act or omission of the CUSTOMER, or an act or omission of one of the CUSTOMER's employees, space members, officers, agents, PROVIDERS.
      • (b) An incompatibility between the PLATFORM and any other system, application, program or software not specified as compatible specifically by PROVIDER.
    • "Documentation" means the documentation produced by the PROVIDER and made available to the CUSTOMER by the PROVIDER online via coworking.nexudus.com http://help.spaces.nexudus.com/en/managers http://help.spaces.nexudus.com/en/designers/ http://help.spaces.nexudus.com/en/api/ or such other web address notified by the PROVIDER to the CUSTOMER from time to time which sets out a description of THE PLATFORM and the user instructions for THE PLATFORM.
    • “Effective Date” means the date of execution of this Agreement;
    • “Free Trial”: means the period charges specified at http://coworking.nexudus.com in which the use of the PLATFORM has no charges for the CUSTOMER. This period time starts when the Customer account on the Platform is created.
    • “Active Members”: Active members are those paying for a regular product or service, signed up to a price plan or regular payment contract and who have been invoiced or made a booking in the last 30 days. Anyone else will be regarded as a drop-by person and won't be billed for.
    • “Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, hacker attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
    • “Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
    • “Minimum Term” means the period specified as such in Schedule [1]
    • “Maximum Term” means the period specified as such in Schedule [1]
    • "Permitted Purpose" define the purpose(s) for which the Platform may be used;
    • Platform: means the services and software as service (SaaS) PLATFORM known as NEXUDUS SPACES that is owned and operated by the PROVIDER, and that will be made available to the CUSTOMER as a service via www.coworking.nexudus.com / spaces.nexudus.com under this Agreement. NEXUDUS has the intellectual property rights on the PLATFORM and works derivates.
    • “Services” means all the services, including the Platform, provided or to be provided by the Provider to the Customer under this Agreement, including the Support Services;
    • “Subscription fees”: the subscription fees payable by the CUSTOMER to the PROVIDER as amended from time to time. They are properly published at coworking.nexudus.com and any changes will be updated there or notified to the CUSTOMER by e-mail.
    • "Support Services" means support and maintenance services provided or to be provided by the PROVIDER to the CUSTOMER.
    • “Term”: means the term of this Agreement
    • “Upgrades” means new versions of, and updates to, the PLATFORM, whether for the purpose of fixing an error, bug or other issue in the PLATFORM or enhancing the functionality of the PLATFORM. They are usually notified to the CUSTOMER by e-mail and also will be published at PROVIDER social networks and blog.
    • “Virus”: anything or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1.2.- In this Agreement, a reference to a statute or statutory provision includes a reference to: 

    • that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
    • any subordinate legislation made under that statute or statutory provision.
1.3.- The Clause headings do not affect the interpretation of this Agreement.

Term

This Agreement will come into force on the Effective Date and will continue indefinitely thereafter, unless terminated in accordance with Clause [14]


3. The Platform

3.1.- The Provider:
  • Will make available the Platform to the Customer by setting up an account for the Customer on the Platform, and providing to the Customer login details for that account following the Effective Date. OR
  • The PLATFORM will automatically generate an account for the CUSTOMER promptly following the Effective Date, enabling the CUSTOMER to access the PLATFORM. OR
  • The CUSTOMER will open an account on the PLATFORM by entering the correct and required registration details on https://spaces.nexudus.com/login/register.

3.2.- Subject to:
  • the limitations set out in Clause [3.3] and the prohibitions set out in Clause [3.4], the Provider hereby grants to the Customer a non-exclusive licence to use the Services and the Documentation of the PLATFORM for the Permitted Purpose via any standard web browser in accordance with the DOCUMENTATION during the Subscription Term solely for proper use of the PLATFORM according to its features.

3.3.- The licence granted by the Provider to the Customer under Clause [3.2] is subject to the following limitations:
  • a) The PLATFORM may only be used by registered CUSTOMERS and undertakes that the CUSTOMER shall keep a secure password for the use of the Services and Documentation, that such password shall be changed no less frequently than monthly and that the CUSTOMER shall keep his password secret and confidential.
  • b) the Customer must comply at all times with the terms of the acceptable use policy supplied with the Platform and set out in Schedule 4, and must ensure that all users of the Platform agree and comply with the terms of that acceptable use policy.

3.4.- Except to the extent mandated by applicable law or expressly permitted in this Agreement, the licence granted by the Provider to the Customer under this Clause [3] is subject to the following prohibitions:
  • the Customer must not sub-license its right to access and use the Platform or allow any unauthorised person to access or use the Platform;
  • the Customer must not frame or otherwise re-publish or re-distribute the Platform unless specifically allowed by the PROVIDER;
  • the Customer must not alter or adapt or edit the Platform save as expressly permitted by the Documentation.

3.5.- For the avoidance of doubt, the Customer has no right to access the object code or source code of the Platform, either during or after the Term. Although the Customer can access and modify what is called the "space website" (see Nexudus Spaces features at coworking.nexudus.com) and its files, throughout the theme editor built in the Admin Panel of Nexudus Spaces Account. 

3.6.- All Intellectual Property Rights in the Platform shall, as between the parties, be the exclusive property of the Provider.

3.7.- The Customer shall use all reasonable endeavours to ensure that no unauthorised person will or could access the Platform using the Customer's account.

3.8.- The Customer must not use the Platform in any way that causes, or may cause, damage to the Platform or impairment of the availability or accessibility of the Platform, or any of the areas of, or services on, the Platform.

3.9.- The Customer must not use the Platform:
  • a)in any way that is unlawful, illegal, fraudulent or harmful; or
  • b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.


4. Support Services and Upgrades

The details of the Support Services are specified in Schedule 2 (Service Level Agreement) 

4.1 Although the PROVIDER is determined to use all reasonable resources to make the service available 24/7, there are some exceptions to take into account:

4.2.- Unscheduled maintenance will be usually performed outside normal Business Hours.

4.3 The PROVIDER shall provide the availability of the PLATFORM and the DOCUMENTATION according to the terms of this agreement to the CUSTOMER during the Subscription Term.

4.4 The PROVIDER will provide a technical support regarding issues that may come within the use of the PLATFORM by the CUSTOMER. This services is provide using e-mail with 48H of response’s time.

4.5 Features Updates: The PROVIDER encourages CUSTOMERS to send feedback about their new features wish list in the PLATFORM. The PROVIDER will consider all of them and eventually will develop those ones which may be technically viable and positive for the entire community of CUSTOMERS.


5. Customer Materials

 

5.1 The CUSTOMER grants to the PROVIDER during the Term a non-exclusive licence to store, copy and otherwise use the CUSTOMER Materials on the PLATFORM for the purposes of operating the PLATFORM, providing THE SERVICE, fulfilling its other obligations under this Agreement, and exercising its rights under this Agreement. The PLATFORM may allow end users of the service to edit, remove or share their own data with other customers of PLATFORM. 

5.2 Subject to Clause [7.1], all Intellectual Property Rights in the CUSTOMER Materials will remain, as between the parties, the property of the CUSTOMER.

5.3 The Customer warrants to the Provider that the Customer Materials, and their use by the Provider in accordance with the terms of this Agreement, will not:

  • (a) breach any laws, statutes, regulations or legally-binding codes;
  • (b) infringe any person's Intellectual Property Rights or other legal rights; or
  • (c) give rise to any cause of action against the Provider or the Customer or any third party.
5.4 Where the Provider reasonably suspects that there has been a material breach by the Customer of the provisions of this Clause [5], the Provider will advise the CUSTOMER of such a breach and, if not remedied within 2 working days, may:

  • (a)delete or amend the relevant Customer Materials; and/or
  • (b) suspend any or all of the Services and/or the Customer’s access to the Platform while it investigates the matter.
5.5 Any breach incapable of remedy by the Customer of this Clause [5] will be deemed to be a material breach of this Agreement for the purposes of Clause [13].

5.6 The PROVIDER shall ensure that the CUSTOMER Materials stored and processed by the PLATFORM are stored separately from, and are not co-mingled with, the materials of other CUSTOMERs of the PROVIDER. End users may decide to voluntarily provide their own data stored in the PLATFORM to other CUSTOMERs using the PLATFORM.


6. Trial Period

The first 30 days, since the Customer account in the platform is created, shall be a trial period in all versions of the PLATFORM, during which all of the provisions of this Agreement shall apply, save as follows:

  • (a) the Customer shall have no obligation to pay the Charges in respect of the trial period;
  • (c) Either party may terminate the Agreement immediately by giving notice to the other party at any time before the end of the trial period (in which case no liability to pay any Charges in respect of PLATFORM's access will arise).
  • (c) The PLATFORM has a free version, with up to 5 Active Members, which has no charges and the same service support as others.

7. Charges

 

7.1 The PROVIDER will issue invoices for the Charges to the CUSTOMER in accordance with the subscriptions fees properly published and updated at http://coworking.nexudus.com. These charges may include not only the charges to use the SERVICE but also any other charges for customization work, technical support and training or any other charges previously agreed by the CUSTOMER and the PROVIDER.

7.2 The CUSTOMER will pay the Charges to the PROVIDER within 5 days of the date of receipt of an invoice issued in accordance with Clause [7.1].

7.3 All Charges stated in or in relation to this Agreement are stated exclusive of VAT, unless the context requires otherwise. VAT will be payable by the CUSTOMER to the PROVIDER in addition to the principal amounts.

7.4 Charges must be paid choosing one of the payment methods available on the PLATFORM.

7.5 If the Customer does not pay any amount properly due to the Provider under or in connection with this Agreement, the Provider may:

  • (b) Claim statutory interest and compensation from the CUSTOMER pursuant to the late payment of Commercial Debts.
7.6 The Provider may vary the Charges on the 1st month every year. These changes will be properly published at http://coworking.nexudus.com or notified the CUSTOMER via email. The increase of monthly subscription fee will never exceed a 5% over the previous year monthly subscription fee.

7.7 The PROVIDER may suspend access to the Platform and the provision of THE SERVICE if any amounts due to be paid by the CUSTOMER to the PROVIDER under this Agreement are overdue by more than 10 days.


8.- Warranties

8.1.- The Customer warrants and represents to the Provider that it has the legal right and authority to enter into and perform its obligations under this Agreement.

8.2.- The Provider warrants to the Customer:

  • (a) that it has the legal right and authority to enter into and perform its obligations under this Agreement;
  • (b) The PROVIDER will use reasonable endeavours to keep the PLATFORM free from viruses and other malicious software programs.
8.3.- The Customer acknowledges that:
  • (a) Software is never wholly free from defects, errors and bugs, and the PROVIDER gives no warranty or representation that the PLATFORM will be wholly free from such defects, errors and bugs.
  • (b) The PROVIDER does not warrant that the PLATFORM will be compatible with any application, or software not specifically identified as compatible by the PROVIDER’s team.
  • (c) The PROVIDER will not and does not purport to provide any legal, taxation or accountancy advice under this Agreement or in relation to the PLATFORM and (except to the extent expressly provided otherwise) the PROVIDER does not warrant that the PLATFORM will not give rise to any civil or criminal legal liability on the part of the CUSTOMER or any other person.
8.4 All of the parties' warranties and representations in respect of the subject matter of this Agreement are expressly set out in the terms of this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement.


9.- Indemnities

9.1 The Customer will indemnify and will keep indemnified the Provider against all liabilities, damages, losses, costs and expenses (including legal expenses and amounts paid in settlement of any disputes) suffered or incurred by the Provider and arising as a result of any breach by the Customer.
9.2 The Provider will indemnify and will keep indemnified the Customer against all third party liabilities, damages, losses, costs and expenses (including legal expenses and amounts paid upon legal advice in settlement of any disputes) suffered or incurred by the Customer and arising as a result of any breach by the Provider of Clauses [8.2(e)] and [12].


10.- Limitations and exclusions of liability

10.1.- Nothing in the Agreement will:
  • (a) limit or exclude the liability of a party for death or personal injury resulting from negligence;
  • (b) limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party;
  • (d) limit or exclude the liability of a party for breaches of obligations of confidentiality or indemnification;
  • (e) limit any liability of a party in any way that is not permitted under applicable law; or
  • (f) exclude any liability of a party that may not be excluded under applicable law.
10.2.- The limitations and exclusions of liability set out in this Clause [10]:
  • (a) are subject to Clause [10.1];
  • (b) govern all liabilities arising under the Agreement or in relation to the subject matter of the Agreement including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty; and
  • (c) will not limit or exclude the liability of the parties under the express indemnities set out the Agreement.
10.3.- The parties will not be liable in respect of any loss of profits, income, revenue, use, production or anticipated savings.

10.4.- The parties will not be liable for any loss of business, contracts or commercial opportunities.

10.5.- The parties will not be liable for any loss of or damage to goodwill or reputation.

10.6 .- The parties will not be liable in respect of any loss or corruption of any data, database or software.

10.7.- The parties will not be liable in respect of any special, indirect or consequential loss or damage. 

10.8 .- The parties will not be liable for any losses arising out of a Force Majeure Event.


11.- Data Protection

11.1 The CUSTOMER warrants that it has all rights, title and interest in and to all of the CUSTOMER Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the CUSTOMER Data disclose to the PROVIDER under or in connection with this Agreement.

11.2.- The Provider warrants that:

  • (a) It will act only on instructions from the CUSTOMER in relation to the processing of any Personal Data performed by the PROVIDER on behalf of the CUSTOMER; and
  • (b) the CUSTOMER data, CUSTOMER confidential information and the customer materials remain the property of the CUSTOMER at all times.
  • (c) It shall comply with the provisions set forth on Attachment 11.2 hereto.

 


12.- Confidentiality and privacy policies

12.1.- The Provider will:
  • (a) keep confidential and not disclose the Customer Confidential Information to any person save as expressly permitted by this Clause [12];
  • (b) Only collect limited account information and store and maintain CUSTOMER account and text contents on our secure servers. PROVIDER doesn't store credit card information on PROVIDER servers. These are only stored on third PROVIDER payment PROVIDERs' servers. PROVIDER will never rent, sell or share confidential or not public information of the CUSTOMER for marketing purposes without CUSTOMER permission. CUSTOMER can update account information and preferences at any time.
  • (c) protect the Customer Confidential Information against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.
12.2.- CUSTOMER Confidential Information may be disclosed by the PROVIDER to its officers, employees, agents, insurers and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the CUSTOMER Confidential Information disclosed

12.3.- The obligations set out in this Clause [12] shall not apply to:

  • (a) Customer Confidential Information that is publicly known (other than through a breach of an obligation of confidence);
  • (b) CUSTOMER Confidential Information that is in possession of the PROVIDER prior to disclosure by the CUSTOMER;
  • (c) Customer Confidential Information that is received by the Provider from an independent third party who has a right to disclose the relevant Confidential Information; or
  • (d) CUSTOMER Confidential Information that is required to be disclosed by law, or by a governmental authority, stock exchange or regulatory body.

 


13.- Termination

13.1.- Either party may terminate this agreement by giving [one] month's notice.

13.2 Either party may terminate this Agreement immediately by giving written notice to the other party if the other party:

  • (a) commits any material breach of any term of this Agreement, and:
  • (i) the breach is not remediable; or
  • (ii) the breach is remediable, but the other party fails to remedy the breach within 30 days of receipt of a written notice requiring it to do so.
13.3 Either party may terminate this Agreement immediately by giving written notice to the other party if:

  1. (a) the other party:
    • (i) is dissolved;
    • (ii) ceases to conduct all (or substantially all) of its business;
    • (iii) is or becomes unable to pay its debts as they fall due;
    • (iv) is or becomes insolvent or is declared insolvent; or
  2. (b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
  3. (c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up.
  4. (d) where that other party is an individual that other party dies, or as a result of illness or incapacity becomes incapable of managing his or her own affairs, or is the subject of a bankruptcy petition or order.
13.4 If the Provider stops or makes a good faith decision to stop operating the Platform generally, then the Provider may terminate this Agreement by giving at least 30 days' written notice of termination to the Customer.


14.- Effects of termination

14.1 Upon termination of this Agreement, all the provisions of this Agreement will cease to have effect, save that the following provisions of this Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses [1, 7.5, 8.2 (e)(iii), 9, 10, 11.2, 12, 14 and 17].

14.2 Termination of this Agreement will not affect either party's accrued liabilities and rights as at the date of termination.

14.3 Within 30 days following the termination of the Agreement, the PROVIDER shall:

  • (a) return to the CUSTOMER all CUSTOMER confidential information, data and materials.
  • (b) irrevocably delete from the Platform all CUSTOMER Confidential Information according to UK laws on privacy policy.
14.4.- The Provider may retain any document (including any electronic document) containing the Customer Confidential Information after the termination of this Agreement if:

  • (a) the Provider is obliged to retain such document by any law or regulation or other rule enforceable against the Provider; or
  • (g) the document in question is a letter, fax, email, order confirmation, invoice, receipt or similar document addressed to the Provider.
14.5 Account inactivity: After a period of inactivity in freemium accounts of the PLATFORM, whereby the CUSTOMER fails to log in to an account for a period of six months, the PROVIDER reserves the right to disable or terminate the account.


15.- Notices

15.1 Any notice given under this Agreement must be in writing (whether or not described as “written notice” in this Agreement) and must be sent by email, for the attention of the relevant person, and to the relevant email address given by the Customer to the Provider. 

15.2 A notice will be deemed to have been received at the relevant time set out below (or where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below):

  • (a) where the notice is sent by email, at the time of the transmission (providing the sending party retains written evidence of the transmission).

16.- Force Majeure Event

16.1.- Where a Force Majeure Event gives rise to a failure or delay in either party performing its obligations under this Agreement, those obligations will be suspended for the duration of the Force Majeure Event.

16.2.- A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under this Agreement, will:

  • (a) forthwith notify the other; and
  • (b) will inform the other of the period for which it is estimated that such failure or delay will continue.
16.3 The affected party will take reasonable steps to mitigate the effects of the Force Majeure Event.


17. General

17.1 No breach of any provision of this Agreement will be waived except with the express written consent of the party not in breach.

17.2 If a Clause of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of this Agreement will continue in effect. If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).

17.3 This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.

17.4 Save as expressly provided in this Clause or elsewhere in this Agreement, neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise dispose of or deal in this Agreement or any contractual rights or obligations under this Agreement.

17.5 This Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.

17.6 Subject to Clause [10.1]:
  • (a) this Agreement and the acceptable use policy referred to in herein constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter; and
  • (b) neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into this Agreement.

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