These terms and conditions describe the agreement between Executive Space Solutions, a Washington, D.C. based Limited Liability Company (“ESS”) and the space operator (“Operator”) who submitted the website form at the following URL: http://www.executivespacesolutions.com/advertise-your-space/. These terms and conditions describe and set forth the general terms governing the relationship between the parties (collectively, the “Agreement”). This Agreement will become effective when the space operator’s listing has been published on the ESS website and/or network websites.
ESS provides an online platform for browsing, comparing and inquiring about vacant offices space, including, but not limited to, private offices, office suites, cubicle and meeting rooms. Operator maintains an inventory of space that is wishes ESS to advertise, promote, market, resell and/or license through the ESS website and/or network websites. ESS will use commercially reasonable efforts to perform the following services with respect to each Listing: (i) post the Listing on the ESS website and/or network websites; and (ii) provide customer service for inquiries. ESS powers online Listings, but is not a real estate broker, real estate salesperson, or real estate agent. The terms “sell”, “sold”, “sale” or “resale” refer to a license and sublicense, as the context requires, to use certain Space, but not the actual sale or resale of real estate or any other property interest when used herein in reference to the Space.
2. FREE REGISTRATION
When Operator registers a space, or multiple spaces, ESS does not charge an upfront registration fee.
3. SPACE LISTINGS
3.1 Listings Operator agrees that no Listing shall include and/or provide sleeping accommodations to any persons. ESS will not publish a Listing until Operator has provided all required elements of a Listing, including a venue description; fees for licensing use of the space and associated services, if any; photographs of the space; any house rules that Operator generally imposes; and other elements as may be required from time to time, at ESS’s sole discretion. The license fees must be inclusive of all applicable sales, use, consumption and other taxes and all applicable export and import fees, customs duties and similar charges. ESS does not have any obligation to calculate any such charges with respect to the Space.
3.2 License to Listings Subject to the terms and conditions in this Agreement, Operator grants ESS a non-exclusive, sublicenseable, non-transferable, right and license to: (a) use, reproduce, adapt, distribute, publicly perform, publicly display and digitally perform the Listing on or through the ESS Network during the Term; (b) modify and create derivative works of the Listing during the Term for formatting and display purposes on the ESS Network to market and promote the Listing and products and services sold or distributed in connection with the Listing; and (c) on a perpetual basis, (i) use, display, modify and create derivative works of the Listings solely to create and compile aggregated data and/or statistics (“Aggregate Data”) and (ii) copy, display, disclose, modify and distribute the Aggregate Data; provided, however, ESS will ensure that any Aggregate Data cannot be used to identify Operator.
3.3. Display of Listings. Operator agrees that nothing in this Agreement requires ESS to display on the ESS Network. Operator agrees that ESS may format, present, perform, transmit and/or display the Listing using the technologies and user interfaces ESS determines in its sole discretion. Operator acknowledges that it will have no right to determine any element of the design, interface, look-and-feel or graphical environment of any aspect of the ESS Network, even if a Listing is included therein. ESS reserves the right to remove any or all of Operator’s Listings from ESS Network at any time.
4. PIPELINE INQUIRIES
ESS maintains a pipeline of individuals and companies who have space requirements. When an ESS customer inquires about a space, or submits their space requirement to ESS via phone, email, the ESS website and/or network websites, employees of ESS will provide customer service support to the customer, and notify Operator when its space meets the customer’s requirements.
5.1 When Fees Are Charged ESS only charges fees to Operators when a license agreement or contract has been facilitated. Facilitation of a license agreement or contract may occur in one of the following scenarios: (a) Customer executes Operator’s license agreement or contract; or (b) ESS executes a license agreement or contract with Operator for the space, then subsequently executes an agreement or contract to license the same space to the customer.
5.2 Fee Structure and Amounts Operator agrees to the following fee structure and amounts:
(a) When a customer executes Operator’s license agreement or contract, the fee charged is an amount equivalent to the monthly license fee charged to the customer multiplied by 1. Example: Customer’s monthly license fee is $1,000/mo; Operator owes ESS a fee of $1,000.
(b) When ESS executes a license agreement or contract with Operator for the space, then subsequently executes an agreement or contract to license the same space to the customer, Operator owes ESS a fee of 20% of the monthly license fee charged to customer.
5.3 Payment of Fees Operator agrees to the following payment terms for the fees described in this agreement:
(a) When a customer executes Operator’s license agreement or contract, ESS will send an invoice to the Operator, who will pay fees owed to ESS no later than 30 days past the invoice date.
(b) When ESS executes a license agreement or contract with Operator for the space, then subsequently executes an agreement or contract to license the same space to the customer, ESS will collect full payment from customer prior to, or on the first day of each month, then pay the Operator the difference between the license fees collected and the fees due to ESS, as described in Section 5.2 (b).
5.4 Late Fees Invoices are considered past due if payment has not been received prior to the due date on the invoice. Past due invoices will be assessed a fifteen percent (15%) late fee per month.
6.CHANGE OF OWNERSHIP – In the event that Operator’s company (or the space listed by Operator) is sold; it is the responsibility of the Operator to advise ESS in writing and to ensure the new owners are aware of the these terms, and any fees owed to Executive Space Solutions. In the event this does not happen, the original owner(s) assume responsibility for any fees owed to ESS.
7. TERM AND TERMINATION
7.1 Term. The term of this Agreement will commence on the Effective Date and will continue for a period of one (1) year thereafter (“Initial Term”), unless earlier terminated in accordance with this Section 7, and will continue thereafter unless and until terminated (the Initial Term, together with any renewal term, collectively, the “Term”).
7.2. Termination for Convenience. After the Initial Term, either Party may terminate this Agreement for convenience by providing ninety (90) days written notice to the other Party.
7.3. Termination for Breach. Either Party may, at its option, terminate this Agreement in the event of a material breach by the other Party. Such termination may be effected only through a written notice to the breaching Party, specifically identifying the breach or breaches on which such notice of termination is based. The breaching Party will have a right to cure such breach or breaches within thirty (30) days of receipt of such notice, and this Agreement will terminate in the event that such cure is not made within such thirty (30)-day period.
7.4. Effect of Termination. Upon any termination of this Agreement, (i) Operator will immediately discontinue all use of the Platform and any ESS Confidential Information; (ii) each party will promptly pay all amounts due and payable under this Agreement and (iii) ESS will cease all marketing efforts with respect to Spaces not yet sold as of the effective date of the termination unless otherwise agreed upon by the Parties. Operator will fulfill any license agreements previously executed that extend beyond the effective date of termination in accordance with the terms and conditions set forth herein.
8.1. Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Parties with respect to the subject matter of this Agreement and, supersedes and merges all prior oral and written agreements, discussions and understandings between the Parties with respect to the subject matter of this Agreement, and neither of the Parties will be bound by any conditions, inducements or representations other than as expressly provided for in this Agreement.
8.2. Independent Contractors. In making and performing this Agreement, Operator and ESS act and will act at all times as independent contractors, and, except as expressly set forth herein, nothing contained in this Agreement will be construed or implied to create an agency, partnership or employer and employee relationship between them. Except as expressly set forth herein, at no time will either Party make commitments or incur any charges or expenses for, or in the name of the other Party.
8.3. Notices. All notices required by or relating to this Agreement will be in writing and will be sent by means of certified mail, postage prepaid, to the Parties at their respective addresses, or addressed to such other address as the receiving Party may have given by written notice in accordance with this provision. All notices required by or relating to this Agreement may also be communicated by facsimile, provided that the sender receives and retains confirmation of successful transmittal to the recipient. Such notices will be effective on the date indicated in such confirmation. In the event that either Party delivers any notice by means of facsimile transmission in accordance with the preceding sentence, such Party will promptly thereafter send a duplicate of such notice in writing by means of certified mail, postage prepaid, to the receiving Party, addressed as set forth above or to such other address as the receiving Party may have previously substituted by written notice to the sender.
8.4. Amendments. This Agreement may not be amended or modified except in a writing duly executed by authorized representatives of both Parties.
8.5. Assignment; Delegation. Operator shall not assign any of its rights or delegate any of its duties under this Agreement without the express, prior written consent of ESS, provided that no such consent will be required for an assignment to a successor in interest by way of a merger, consolidation or sale of all or substantially all of Operator’s assets as long as Operator provides ten (10) days prior written notice of such assignment. Absent such consent, any attempted assignment or delegation will be null, void and of no effect.
8.6. No Third Party Beneficiaries. The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity, other than the Parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
8.7. Severability. If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision will be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement will not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.
8.8. Waiver. No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought. Any such waiver will constitute a waiver only with respect to the specific matter described therein and will in no way impair the rights of the Party granting such waiver in any other respect or at any other time. Any delay or forbearance by either Party in exercising any right hereunder will not be deemed a waiver of that right.
8.9. Force Majeure. Except with respect to payment obligations hereunder, if a Party is prevented or delayed in performance of its obligations hereunder as a result of circumstances beyond such Party’s reasonable control, including, by way of example, war, riot, fires, floods, epidemics, or failure of public utilities or public transportation systems, such failure or delay will not be deemed to constitute a material breach of this Agreement, but such obligation will remain in full force and effect, and will be performed or satisfied as soon as reasonably practicable after the termination of the relevant circumstances causing such failure or delay, provided that if such Party is prevented or delayed from performing for more than ninety (90) days, the other Party may terminate this Agreement upon thirty (30) days’ written notice.
8.10. Governing Law. THIS AGREEMENT WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF OR TO THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. FOR PURPOSES OF ALL CLAIMS BROUGHT UNDER THIS AGREEMENT, EACH OF THE PARTIES HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN THE DISTRICT OF COLUMBIA.
8.11. U.S. Government End-Users. Each of the Documentation and the software components that constitute the Platform is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Platform and the Documentation with only those rights set forth therein.
8.12. Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed will be deemed to be an original and all of which when taken together will constitute one Agreement.
8.13. Publicity. Operator agrees that ESS may use the name and trademarks of Operator solely to identify Operator as a customer of ESS in marketing collateral, investor presentations and on the ESS Web Site. ESS will not use Operator’s name or trademarks for any other purpose without the express written consent of Operator.
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