PARTIES

1NearDeskNEARDESK LIMITED a company incorporated in England with registered number 07900409 and whose registered office is at Office 113, 254 Pentonville Road, London, N1 9JY
2Location OwnerThe company providing services related to Venue Desks, incorporated in England

BACKGROUND

Most serviced offices and hubs have spare desks available ready for future clients to move in. NearDesk aims to:

  • Build a network of locations around the UK to enable workers who want to work more flexibly to rent those desks by the hour;
  • Give the smaller business centre operators access the opportunity to offer their own clients access to a wider network of locations for when they are ‘out and about’ thereby competing on a level playing field with the dominant chains.
  • Allow all users of desks to be registered “NearDesk” users giving them access to the NearDesk website providing social networking facilities.

1 Interpretation

1.1 Definitions:

The following definitions apply in this agreement:

Force Majeure Eventacts, events, omissions or accidents which are beyond the reasonable control of the relevant party including, without limitation, any abnormally inclement weather, flood, lightning, storm, fire, explosion, earthquake, subsidence, structural damage, epidemic or other natural physical disaster, failure or shortage of power supplies, war, military operations, riot, crowd disorder, strike, lock-outs or other industrial action, terrorist action, civil commotion;
NearDesk Cardthe card that facilitates use of the NearDesk services issued to a Registered User;
NearDesk Rightsall intellectual property rights and knowhow in the NearDesk business model, concept and operation (including without limitation all names and trading style) and rights in and to exploit trademarks, logos and other visual or audio representations of the NearDesk brand;
NearDesk Websitethe website hosted at domains including www.NearDesk.com and app.neardesk.com that provides (amongst other things) an online networking system between Registered Users in the Venue;
Recruitidentifying and securing commitment from a business owner (which may be an individual or corporation) which employs one or more person who the Venue Owner recruits to register as a Registered User using the NearDesk Website and using the Venue’s short text referral code that identifies the Location Owner as the recruiter of the Registered User;
Registered Usera person who has been validly issued with a NearDesk Card by NearDesk and unique registration rights for the NearDesk Website;
Venuethe real estate (and other places owned, occupied or controlled by the Location Owner) at which Venue Desks are situate together with and including (in each case) all non-public access and egress routes and other areas that a Registered User is able to access (or may reasonably expect to be given access) in the proper use of the Venue Desks and associated facilities (including, without limitation, any lavatories, washing and retail area); and
Venue Deska desk with associated internet connectivity and other agreed facilities hosted by the Location Owner in a Venue which is made available for use by Registered Users;

1.2 Interpretation:

In this agreement reference to:

1.2.1 a “person” or “corporation” includes a reference to all legal or natural persons, partnerships, trusts, companies, governments or local authority departments and other bodies and associations (whether corporate or unincorporated);

1.2.2 an individual includes where appropriate his personal representatives;

1.2.3 the singular includes a reference to the plural and vice versa;

1.2.4 a statute or a provision of a statute shall be construed as a reference to that statute or provision as amended, re-enacted or extended at the relevant time; and

1.2.5 one gender includes each gender (feminine, masculine and neuter).

1.3 General words:

In construing this agreement the so-called ejusdem generis rule does not apply and accordingly the interpretation of general words shall not be restricted by words indicating a particular class or particular examples.

2 Terms

2.1 Venue Desks:

Subject to the terms of this agreement, the Location Owner agrees to host Registered Users at Venue Desks. Location Owner shall ensure that each Venue Desk has access to either wireless or ethernet internet connectivity (and shall take all reasonable precautions to ensure that there is no interruption to the supply or service of the broadband and that the service is secure and that appropriate IT support services are available for Registered Users).

2.2 NearDesk Website:

NearDesk shall provide its proprietary card-reader (which shall read NearDesk Cards) and logging in system and offer Registered Users the right to use NearDesk Website.

3 Facilities

3.1 Venue:

Location Owner agrees to ensure that the Venue (and all equipment and services provided by Location Owner) shall:

3.1.1 adhere to all legal, regulatory, health and safety, security and other applicable requirements and best practice and that the Venue is appropriately insured;

3.1.2 provide adequate and appropriate equipment, facilities and personnel to ensure anyone injured or taken ill will receive immediate attention;

3.1.3 be kept clean and tidy at all times with safe and easy access to the Venue Desks;

3.1.4 offer an environment that is conducive for desk workers to work in peace and without interruption or disruption; and

3.1.5 include appropriate numbers of toilet spaces and washing facilities

3.2 Site paid-for services:

Location Owner may offer refreshments for sale, IT equipment and private meeting rooms at additional cost and provide other additional paid-for items and services (including, for example, but without limiting the generality of this provision, providing crèche facilities holding events designed to encourage collaboration between the businesses using the Venue), Location Owner agrees that all related billings shall be charged directly to the Registered User through software provided by NearDesk (and the Registered Users shall not be asked to pay in any other way).

3.3 Refunds etc:

Location Owner acknowledges that billings processed by NearDesk may be disputed, countermanded (or otherwise not paid) or requested to be refunded, repaid or set off against any other payment. In the unlikely event of the billings processed by NearDesk being disputed, countermanded (or otherwise not paid) or requested to be refunded, repaid or set off agains any other payment, Location Owner agrees to indemnify NearDesk in respect of any resulting costs or losses incurred by NearDesk.

3.4 Venue obligations:

Location Owner agrees, confirms and undertakes:

3.4.1 to install and operate NearDesk Card readers and any other equipment to allow the optimisation of the use of the Venue and monitoring of access to and from the Venue and Venue Desks and usage of the NearDesk Website (and also to provide appropriate utilities for the operation of such systems and devices, including wireless broadband access and power supplies);

3.4.2 to maintain an up to date profile relating to Venue on the NearDesk Website (and report any inaccuracies or required changes by emailing team@neardesk.com);

3.4.3 to give priority to pre-booked Registered Users notified to it by NearDesk and to retain sufficient Venue Desks to service such pre-booked Registered Users; desks booked on the day need to be reserved for 30 minutes after which time the desks can be allocated to another user.

3.4.4 that it has full right, power and authority to enter into this agreement and carry out its obligations under this agreement;

3.4.5 obtain and maintain in full force and effect of consents and other certifications or policies necessary to ensure full compliance with the terms of any agreement, permit, regulation or other applicable requirement (including, without limitation, public liability and other insurance policies) that is necessary to enable the Venue lawfully and prudently be to made available on the terms of this agreement;

3.4.6 promptly to provide to NearDesk such evidence as NearDesk may reasonably require to demonstrate that the Location Owner has complied with the requirements of clause 3.3.5;

3.4.7 it shall use reasonable endeavours to ensure that none of its representatives makes any statement that is abusive, offensive, defamatory or derogatory to (or disparaging of) any Registered User;

3.4.8 it shall, at its own expense, supply everything necessary for the performance of its obligations under this agreement and commit whatever level of resource is necessary to achieve them; and

3.4.9 it shall, at all times, comply with any provisions of the NearDesk brand guidelines issued by NearDesk from time to time.

3.4.10 it shall not circumvent NearDesk’s interest by offering any service to a Registered User which reduces the amount that NearDesk may earn from that Registered User.

3.5 Licences:

Location Owner agrees to procure the issuance of all (if any) necessary permits or licences.

4 Payment

4.1 Desk usage fees:

NearDesk shall within 11 days following the end of each month upload on the NearDesk Website, detail of all amounts due to the Location Owner. It is the responsibility of the Location Owner to raise an invoice for payment of the amount due. No invoice may be raised more than three months after the date on which NearDesk provides notice in accordance with the first sentence of this clause 4.1. NearDesk will pay Location Owner all amounts due on the working Thursday immediately following the receipt of an invoice properly raised by the Location Owner:

4.1.1 NearDesk will monitor all desk usage by a NearDesk Card holder via its software. NearDesk does not give any assurance as to Registered Users’ creditworthiness.

4.1.2 Venue must have a NearDesk Card reader and ensure that each Registered User registers his or her NearDesk Card on each visit to the Venue.

4.1.3 Location Owner will keep 96% of the gross amount spent by a Registered User on the card issued to a Recruit by that Location Owner where the spend is at the Venue from which the NearDesk member was recruited (the balance shall be retained by NearDesk). In respect of any other spend on a NearDesk Card, subject to clause 4.1.5, Location Owner shall be entitled to only 87% of the gross amount spent (and NearDesk shall retain the balance and apply it to pay administration and referral fees).

4.1.4 Location Owner will be entitled to 5% of any spend on a NearDesk Card that was issued to a Recruit by Location Owner and properly used in another NearDesk affiliated venue within two years of being issued to that Recruit.

4.1.5 NearDesk will retain the first £20 of any spend on a “hot desk” made in each Venue by a new NearDesk member.

4.1.6 Venue may hold a stock of NearDesk Cards to issue to new users. The NearDesk Card which is only branded NearDesk is free of charge to the Location Owner. Any NearDesk Card which is branded with the Location Owner’s brand costs will be charged, with a minimum order of 500.

4.1.7 Finder’s fee commission:

If a user, within two years from becoming a NearDesk member, takes a serviced office in the Venue, or signs up to a service which the member can book through NearDesk, including meeting rooms and virtual office services, the Location Owner/Venue will pay NearDesk 10% of the user’s first year spend on such services as a ‘finder’s fee’.

4.2 Complaints:

If a complaint is made relating to Venue, no payment will be made until that complaint has been resolved, and payment shall then be made only if the complaint is not upheld.

4.3 Set-off:

If NearDesk determines (acting in good faith) that money is owed by Location Owner on any account, NearDesk may set off that amount from funds otherwise due to Location Owner.

4.3 VAT:

All amounts stated in this agreement are stated exclusive of Value Added tax, which shall be payable against receipt of an appropriate VAT invoice in addition to the amounts otherwise payable pursuant to this agreement.

5 Legal

5.1 No security of tenure:

NearDesk and the Location Owner agree that this agreement confers no security of tenure or other right of exclusive possession or rights of occupation on any Registered User.

5.2 No transfer of NearDesk Rights:

All NearDesk Rights not expressly granted to the Location Owner under this agreement are reserved to NearDesk. Location Owner acknowledges and agrees that NearDesk or its licensors are the owners of the NearDesk Rights and that nothing in this agreement operates to transfer or (except as expressly provided to the contrary) licence any of those or any other intellectual property rights to Location Owner.

6 Liability and indemnity

6.1 No limit on personal injury and death:

Nothing in this agreement shall exclude or restrict either party's liability for death or personal injury resulting from the negligence of that party or of its employees while acting in the course of their employment.

6.2 Savings for Force Majeure Events:

Neither party shall be liable to the other under this agreement for any loss, damage, cost, expense or other claim for compensation arising as a direct or indirect result of breach or non-performance of this agreement due to a Force Majeure Event.

6.3 No consequential loss:

Under no circumstances shall NearDesk be liable for any costs, damages, claims, actual or alleged indirect loss or consequential loss howsoever arising suffered by Location Owner, including, but not limited to, loss of profits, anticipated profits, savings, business or opportunity or loss of publicity or loss of reputation or opportunity to enhance reputation or any other sort of economic loss. Save as provided in clause 6.1, NearDesk accepts no liability for loss or damage to Venue (or Registered User).

6.4 Indemnity:

Location Owner undertakes to hold NearDesk harmless (on a full indemnity basis) in respect of any loss or damage suffered by NearDesk as a result of Location Owner breaching any provision of clause 3 or any provision of any lease or licence arrangement pursuant to which the Location Owner is entitled to occupy the Venue or to grant the rights purported to be granted by it pursuant to this agreement.

6.5 Agency and partnership:

If and to the extent that NearDesk is found to be acting for or on behalf of Location Owner, Location Owner undertakes to indemnify NearDesk in respect of any resultant liability, damage, cost expense or other obligation.

7 General

7.1 Third Party Rights:

The parties do not intend any third party to have the right to enforce any provision of this agreement under the Contracts (Rights of Third Parties) Act 1999 or otherwise or that either party should have an obligation or liability to the other except to the extent clearly set out in this agreement.

7.2 No Partnership:

Nothing in this agreement shall be deemed to constitute a relationship of principal and agent, a partnership, joint-venture, co-ownership or any employment relationship between the parties.

7.3 Notices:

Any notices required to be given under this agreement must be delivered personally or sent by pre-paid first class post or fax or email to the registered address or email address or other physical address given in writing by that party referring to this agreement. A notice delivered by hand is served when delivered, a notice sent by first class post is served 48 hours after posting (as evidenced by a certificate of posting) and a notice sent by fax or email is served when the fax is sent (as evidenced by a successful transmission report or evidence of receipt of email). Notice by email will be effective only if proof of receipt can be provided.

7.4 Entire agreement:

This agreement constitutes the whole agreement between the parties in relation to the arrangements to which it relates (and each party waives all other rights it may have whether in respect of any representation, warranty or other assurance, other than any fraudulent representation, made or given by or on behalf of the other which is not set out in this agreement).

7.5 Governing Law:

This agreement and any non-contractual obligations arising in connection with it shall be governed by and construed in accordance with English law and each party agrees to submit any dispute, including disputes relating to any non-contractual obligations, which may arise out of, under, or in connection with this agreement to the exclusive jurisdiction of the English courts.