Terms Of Service - Business

CLIENT TERMS OF SERVICE

These Online Client Terms of Service (these “Client Terms” or this “Agreement”) are entered into and form an agreement between Upflex, Inc., a Delaware corporation (“Upflex”), and a company who subscribes to the Services (defined below) on behalf of its employees, consultants, and all individuals to whom the company grants access to the Services (collectively, the “Client”). These Client Terms apply to and govern Client’s use of the Upflex Services (as defined below) through the Upflex technology platform, including the web-based employer dashboard and the mobile application for Client Users (as defined below), which enables Client Users to request on-demand office space from independent providers (the “Upflex Platform”). By accessing, using, or participating in the Services, Client agrees to be bound by these Client Terms, which may be modified or updated by Upflex from time to time, effective upon posting of an updated version of the Client Terms at www.upflex.com/legal/business, as well as the User Terms of Service posted at www.upflex.com/legal/user. Upflex will provide Client with notice of any such modifications or updates via email and/or through Client’s Dashboard, and Client is responsible for regularly reviewing these Client Terms. Continued use of the Services after any such modification or update shall constitute Client’s consent to such changes.

1. DEFINED TERMS.
   1. “Client User” means Client’s employees and authorized users for whom Membership, Platform Access, and/or a Pool is purchased for access to the Upflex Platform.
   2. “Client User Terms” means the Terms of Service applicable to Client Users available at https://upflex.com/legal/user/. To the extent the Client User Terms conflict with this Agreement, the terms of this Agreement shall prevail.
   3. “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.
   4. “Guest” means an individual user of a Space.
   5. “Membership” means access to the Upflex Platform granted to a Client User to book Spaces.
   6. “Order Form” means the signed Order Form executed by Client and Upflex, if applicable.
   7. “Personal data” is defined in the Upflex DPA available at https://upflex.com/legal/DPA/.
   8. “Platform Access” means access to the Upflex Platform with any actual usage of a Space requiring the payment of additional fees.
   9. “Pool” means a prepaid, non-refundable pool of funds in the amount as set forth in the Upflex Platform and/or Order Form and set aside for on-demand payment for booking of Spaces.
   10. “Privacy Notice” means the Upflex Privacy Notice available at https://upflex.com/legal/privacy-notice/.
   11. “Space” or “Spaces” means desks, meeting rooms, individual offices, and partial, full or multiple floors available for booking through the Upflex Platform.
   12. “Space Partners” are owners and/or operators of Spaces.
   13. “Term” means the period of time beginning either (i) the period of time beginning on the first day on which Client accesses the Service or begins a trial, or (ii) the Effective Date set forth in the Order Form, and ending on the date on which the Services are terminated and all Fees due hereunder are paid in full.
   14. “Upflex App” means the mobile application through which the Upflex Platform can be accessed and the Services provided.
2. PROVISION OF SERVICES
   1. Services. 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 Upflex Platform, whether through a Membership, Platform Access, and/or a Pool (the “Services”). Access to and booking of Spaces through the Upflex Platform requires registration for an account as described in Client Account Creation below.
   2. Maintenance and Support. Subject to Upflex’s receipt of all fees due from Client, Upflex will use commercially reasonable efforts to provide Client maintenance and support at support@upflex.com.
   3. Trial Services. Upflex may offer trial services that include standard access to the Upflex Platform (each a “Trial”) in accordance with the terms set forth on the Upflex Platform or the applicable Order Form at the time the trial is offered. At Client’s request, Upflex may make available to Client trial access and use of the Services and/or other services or features that may not yet be generally available, including pre-release or beta versions of the foregoing (each, a “Trial”). Client may access and use a Trial solely for the purpose of evaluating and testing the Services and related features. Upflex may terminate Client’s access to and use of any Trial at any time, without notice to Client. Trials are provided “as is” without support, indemnification, liability, or warranty of any kind, whether express, implied, statutory, or otherwise.
3. CLIENT ACCOUNT CREATION
   1. Account Setup. Client’s corporate account can be established by signing up directly on the Upflex Platform or by execution of an Order Form. The person who submits the sign up form on behalf of Client is the “Account Administrator”. By creating Client’s corporate account, the Account Administrator represents and warrants they: (i) are an authorized representative of Client and have full legal authority to bind Client to these Client Terms; (ii) have read and understand these Client Terms; and (iii) agree on Client’s behalf to be bound by these Client Terms. If the Account Administrator does not, or is not able to make the foregoing representations and warranties, they must not click the “I Accept” button as they are prohibited from registering a corporate account on behalf of Client.
   2. Client Card. Establishing a Membership, Platform Access, and/or a Pool requires Client to provide during the Term one or more valid Client credit cards (each, a “Client Card“) that may be charged for the Services. Through the Upflex Platform, Client may authorize Client Users to create individual accounts that will provide access to the Services that will be billed to the Client Card. By providing a Client Card and authorizing a Client User, Client acknowledges and agrees that a Client User may incur charges to Client’s account and Client agrees to pay all charges incurred by any Client User.
   3. Client Users. 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 provided on the Upflex Platform. During the on-boarding process each Client User must (i) install the Upflex mobile application; (ii) register for and maintain during the Term an active Client User account for the Services; and (iii) confirm the mobile number provided during the registration process for the purpose of using the Upflex Platform. To enable access to the Services, a Client User must provide Upflex with their 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. Upflex shall not 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.
   4. Client User Charges. Client agrees that Client is responsible for all Client User charges incurred by a Client User, regardless of whether such charges were authorized between Client User and Client. Client agrees that Upflex shall not 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 Upflex Platform. As between Client and Upflex, Client shall be responsible for Client User charges incurred due to fraudulent or other unpermitted activity through the Services. Client will notify Upflex promptly upon discovery of fraudulent or unpermitted activity occurring under the Client’s account.
   5. Restrictions. Client agrees to, and to cause all Client Users to, use the Services solely as set forth in this Agreement, the Client User Terms, the DPA, and the Privacy Notice. No inconsistent or additional terms or conditions of any purchase order, online terms, or other document submitted by either party shall apply. All such other terms and conditions are hereby rejected, and no separate notice of such rejection need be given by either party. Upflex reserves the right to suspend access to the Services for Client and/or Client Users for violations of this Agreement and/or the Privacy Notice. Client acknowledges that certain Client Users and proposed Client Users may be suspended or banned from use of the Services due to past or future violations of the Client User Terms and/or Privacy Notice (collectively, “Violations“), and that Upflex has no obligation or liability related to a Client User or proposed Client User who is unable to access the Services due to Violations. 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 this Agreement.
4. CLIENT ACCOUNT ADMINISTRATION
   1. Dashboard. Through the Upflex Platform, Client will have access to Upflex’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; (vi) manage and update the Client Card on file; and (vii) update all account settings. Client agrees to use Dashboard data solely for legitimate business purposes including, but not limited to, business expense processing, accounting, and budgeting purposes, and in compliance with the Privacy Notice and all applicable laws. Upflex reserves the right to add, remove, and update features and functionality of the Dashboard at any time.
   2. Account Administrator. Client may appoint new or additional Account Administrator(s) through the Dashboard. Client agrees to (i) maintain all Dashboard login credentials in confidence, (ii) only permit authorized Account Administrators to access the Dashboard, and (iii) ensure all information of the 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 Dashboard login credentials.
   3. 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 Client account via the Dashboard.
5. FEES AND PAYMENTS
   1. Fees. In consideration of Upflex’s provision of the Services, Client shall pay to Upflex all Client User charges and any applicable Services fees as described in this Agreement, an Order Form (if applicable), or as set forth in the Upflex Platform (collectively, the “Fees”). All Fees are nonrefundable except as expressly provided otherwise herein.
   2. Session Duration. All Spaces must be booked for the minimum period stated 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 Upflex 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.
   3. 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.
   4. Payment Terms. Unless otherwise agreed upon in the applicable Order Form, (i) All payments for Membership and Platform Access hereunder are due in advance on the first day of each calendar month, (ii) all payments for a Pool shall be paid as set forth in the Upflex Platform; and (iii) all charges incurred by Client Users through Platform Access or in excess of the Membership and/or Pool are charged immediately to the Client Card. Upflex reserves the right to immediately charge the Client Card in the event that any monthly fees are unpaid after the due date. Upflex reserves the right to immediately suspend Client’s account and suspend any or all Client Users in the event of any unpaid Fees by Client, an invalid Client Card, or a rejected Client Card transaction. All late payments shall bear interest at 3% per month or the maximum allowed by applicable law.
   5. Taxes. All Fees are exclusive of applicable taxes, and Client agrees to 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 income. All payments shall be processed in United States dollars.
6. TERMINATION
   1. Termination for Breach. Either party may notify the other in writing in case of the other’s alleged breach of a material provision of this Agreement or an applicable Order Form. The recipient shall have 14 days from the date of receipt of such notice to effect a cure. If the recipient of the notice fails to effect a cure within such period, then the sender of the notice shall have the option of sending a written notice of termination of this Agreement and/or the applicable Order Form. Should Upflex notify Client of a material breach of this Agreement arising out of non-payment of amounts due under any Order Form, in addition to other remedies set forth herein, Upflex shall have the right to immediately suspend access to the Upflex Platform and Services until all past-due payments are made.
   2. Termination for Convenience. During the Term, Client may terminate the Agreement with regard to a Membership and/or Platform Access with 60 days’ prior written notice to Upflex. Unless Client provides Upflex with 60 days’ prior written notice of Client’s intent to terminate the Agreement at the end of the Term, the Agreement shall automatically renew for an additional Term. Upflex may adjust pricing upon renewal after providing notice to Client at least 60 days’ prior to the effective date of the automatic renewal. Upflex may terminate the Agreement at any time with at least 30 days’ notice to Client; provided, however, that Upflex will refund Client for any undisputed, prepaid and unused fees upon such early termination.
   3. Pool Termination. The Agreement will automatically terminate as of the Pool Expiration Date if Client no longer has access to the Services. Client may terminate this Agreement at any time with respect to Pool-only Services; provided, however, that any remaining balance of Client’s Pool is non-refundable.
7. PRIVACY, DATA PROTECTION AND INFORMATION SECURITY
   1. Privacy. Upflex’s processing of Personal data is subject to this Agreement, including the Upflex Privacy Notice and the DPA.
   2. Personal Data Restrictions. Client agrees that any Personal data obtained in connection with this Agreement will be used solely in connection with 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 or sell Personal data for any purpose. Any violation of the terms contained in this Section 7(b) may result in immediate termination of this Agreement and/or any Order Form associated with this Agreement by Upflex.
   3. Security. 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 promptly notify Upflex 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 breach of security measures; (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 with assurances reasonably satisfactory to Upflex 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 determines that notices (whether in Upflex’s or Client’s name) or other remedial measures are warranted, Client will, at Upflex’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 Upflex Service. Confidential Information of Client includes non-public data provided by Client to Upflex to enable the provision of the Upflex Service. The Receiving Party agrees: (a) to take reasonable precautions to protect such Confidential Information, and (b) not to use (except in performance of the Upflex Service 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 is not responsible for, nor does it 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 is not responsible for, nor does it have control over how the Client User engages with each Space.
10. REPRESENTATIONS AND WARRANTIES; DISCLAIMER OF WARRANTIES
    1. Client Representations and Warranties. Client represents and warrants that: (i) Client has all necessary consents, rights, and permissions to provide Upflex with the Linking Data and any other Personal data or information provided to Upflex hereunder in connection with the Services, Client’s account, 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 during the Term of this Agreement, 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, the DPA, and the Privacy Notice).
    2. Upflex Warranty. During the Term, 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 reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
    3. Disclaimer of Warranties.
       1. EXCEPT AS EXPRESSLY PROVIDED HEREIN, UPFLEX PROVIDES THE SERVICES AND THE UPFLEX PLATFORM “AS IS” AND WITHOUT WARRANTY. UPFLEX DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICES AND UPFLEX PLATFORM WILL MEET CLIENT’S OR CLIENT USERS’ REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES OR THE UPFLEX PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE. UPFLEX MAKES NO WARRANTY OR REPRESENTATION THAT THE SPACES, SERVICES, UPFLEX 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 UPFLEX 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 UPFLEX 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 DOES 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 DOES NOT PERFORM BACKGROUND CHECKS ON USERS, GUESTS, OR SPACE PARTNERS, NOR DOES UPFLEX GUARANTEE THAT USERS, GUESTS, OR SPACE PARTNERS’ PROFILES OR ACCOUNT INFORMATION IS ACCURATE. UPFLEX DOES NOT ENDORSE, SUPPORT, OR VERIFY THE FACTS, OPINIONS, OR RECOMMENDATIONS OF USERS, GUESTS, OR SPACE PARTNERS. IF A DISPUTE ARISES BETWEEN USERS, UPFLEX HAS NO RESPONSIBILITY OR OBLIGATION TO PARTICIPATE, MEDIATE, OR INDEMNIFY ANY PARTY.
11. INDEMNIFICATION. Client shall defend, indemnify, and hold harmless Upflex, 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 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 Upflex 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 Upflex Platform, and/or a Space.
12. LIMITATIONS OF LIABILITY. OTHER THAN WITH RESPECT TO PAYMENT OBLIGATIONS HEREUNDER, A BREACH OF CONFIDENTIALITY, A BREACH OF THE OBLIGATIONS CONTAINED IN SECTIONS 7 OR 11, OR EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (A) IN NO EVENT SHALL UPFLEX OR CLIENT BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, EXEMPLARY, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR FOR LOSS OF BUSINESS OR PROFITS OR ANTICIPATED SAVINGS, SUFFERED BY THE OTHER PARTY OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF UPFLEX OR CLIENT (OR THEIR AGENTS) HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY DIRECT DAMAGES IN AN AMOUNT EXCEEDING THE TOTAL FEES PAYABLE BY CLIENT TO UPFLEX HEREUNDER IN THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
13. MISCELLANEOUS
    1. Publicity. Upflex may use Client’s name, logo, trademarks, and/or service marks (collectively, the “Marks”) for marketing purposes; provided, however, that Upflex will cease usage of such Marks immediately upon request from Client.
    2. Ownership. Upflex and its affiliates are and shall remain the owners of all right, title, and interest in and to the Services, including the Platform, the Dashboard, and any updates, enhancements, and new versions thereof, and all related documentation and materials provided or available to Client and/or any Client User in connection with this Agreement.
    3. Insurance Requirements. Client shall, at its own cost and expense, maintain and keep in force at all times during the Term: (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. Notwithstanding anything to the contrary set forth in this Agreement, Upflex and Client hereby release one another and their respective partners, officers, employees, and property manager from any and all liability or responsibility to the other or anyone claiming through or under them by way of subrogation or otherwise for loss or damage covered by said insurance, even if such loss or damage shall have been caused by the fault or negligence of the other Party, or anyone for whom such Party may be responsible.
    4. Governing Law and Venue. This Agreement shall be governed by the internal laws of the State of Delaware, 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.
    5. Notices. Any notice required or permitted to be delivered to Client pursuant to this Agreement shall be posted to the Client’s Dashboard. Any notice required or permitted to be delivered to Upflex by Client pursuant to this Agreement shall be submitted via email at support@upflex.com.
    6. 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.
    7. 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.
    8. 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.
    9. 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.
    10. 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.
    11. 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.

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