space host Terms of Service
The Space Host Terms of Service (this “Agreement”) set out the terms on which UpNext LLC, a Massachusetts limited liability company (“UpNext”, “we” or “us”), will provide the pop-up matchmaking service (“Platform”) available on or through the UpNext website at www.poppingupnext.com (“Website” or “Site”) or mobile applications for the permitted purpose (collectively, the “Service”) to you, a user of the Service (“you” or “User”). You should read this Agreement carefully. By indicating acceptance of this Agreement or by otherwise using the Service, you are entering into a legally binding agreement with us and are agreeing to the terms of this Agreement. If you are using the Service on behalf of an organization (“Organization”), you represent and warrant that you have the right to bind the Organization to this Agreement, and the term “you” will include both you, the individual user, and the Organization you represent. If you do not agree to these terms and conditions, you must refrain from using our Website and the Service.
UpNext provides a web-based platform (the “Platform”) to facilitate short-term pop-up activation arrangements between the owners or authorized occupants of a retail, hospitality or other usable space, and potential short-term pop-up users of said space (a “Brand”);
WHEREAS, Space Host owns or legally occupies a space or spaces and desires to be listed on the Platform to encourage occupancy of the space(s) by a Brand; and
WHEREAS, UpNext wishes to list said space(s) on its Platform.
NOW THEREFORE, in consideration of the mutual agreements and undertakings contained herein and for othergood and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree asfollows:
1. Pop-Up Activation. By executing this Agreement, the Space Host hereby requests that UpNext list the space(s) more particularly described on Exhibit A attached hereto (the “Space”, or “Spaces”) as ‘available’ to Brands for use as a pop-up activation (an “Activated Listing”). Unless otherwise agreed to by the parties, Space Host agrees to provide UpNext relevant information to include in the description of the Activated Listing, including but not limited to horizontalphotographs of the Space(s), rental fee requirements, preferred pop-up activation duration and any restricted uses. UpNextshall incorporate the applicable information provided by Space Host as part of the Activated Listing description and shall provide a copy of the Activated Listing description along with the proposed terms of engagement for use between Space Host and Brand (the “Term Sheet”) to Space Host for review and approval. During the Term, as defined below, in the event the Parties agree to list additional Spaces that Space Host owns or legally occupies as Activated Listings, such additional Space shall be added to Exhibit A and the Parties hereby agree that such Space shall be subject to the terms of thisAgreement.
2. Term Sheet and Space Agreement. In the event a Brand expresses interest in a Space through the Platform,and upon acceptance of such request by Space Host, UpNext shall provide the Brand with the approved Term Sheet for acceptance by Brand. In addition, Space Host may elect, at its discretion, to memorialize its arrangement directly with theBrand with respect to the utilization of the Space by mutual written agreement between the Space Host and the Brand (a“Space Agreement”). Space Host acknowledges that UpNext shall not be a party to that separate Space Agreement between Space Host and Brand.
3. Compensation to UpNext. For purposes of this Agreement, the term “Rental Fee” shall be defined as allamounts paid by a Brand to a Space Host in connection with the leasing, licensing or occupancy of a Space from the Space Host. In consideration of the posting of a Space as an Activated Listing on the UpNext Platform, the Space Host hereby agrees to pay UpNext, as compensation, an amount equal to fifteen percent (15%) of the total Rental Fee (the “UpNextFee”). The UpNext Fee shall be deducted from the total Rental Fee collected by UpNext and retained by UpNext. UpNext shall then distribute the balance of Rental Fee funds (i.e., 85%) to Space Host.
Additional services executed by UpNext beyond the standard scope of work described herein, including but not limited tothe services set forth in the Pop-Up Space Prep Packages, shall be subject to an additional fee paid by the Space Host as agreed upon by the parties.
4. Primary Representation and Warranty By Space Host. By execution of this Agreement, the Space Host doeshereby represent and warrant to UpNext that: (i) Space Host has the right to execute this Agreement with no further consent or authorization required prior to said execution or prior to the Space being listed as an Activated Listing or prior to theexecution of a Space Agreement, if any, (as defined in Section 2 above); and (ii) Space Host has the right to grant rights to occupy the Space to a Brand upon the terms and conditions of the Term Sheet and, if applicable, the Space Agreement executed by and between Space Host and the Brand.
5. Term. The term of this Agreement shall commence on the Effective Date and shall continue for a period of one (1) year (“Initial Term”), unless terminated or extended as provided herein. This Agreement shall renew for additional terms equal to one (1) year each (each, a “Renewal Term”) consistent with the terms of this Agreement, without any further action by the parties, unless either party elects not to renew this Agreement by giving written notice of its election to the other party at least thirty (30) days prior to the end of the then-current Term. The “Term” shall mean the Initial Term and any Renewal Term(s).
6. Termination. Either party may terminate this Agreement upon any material breach by the other party of any obligations under this Agreement by sending such defaulting party written notice of the termination stating the nature of the breach of obligation. Such notice of termination shall be effective thirty (30) days following the date of delivery thereof unless the breach is remedied to the satisfaction of the terminating party during such thirty (30) day period; provided,however, that if the nature of the breach of obligation is such that it is not capable of being remedied within such thirty (30) day period, so long as the breaching party commences remedying the breach within such thirty (30) day period and diligently pursues such remedy through completion, the notice of such termination shall have no force or effect.
7. Agreements and Understandings.
A. Space Host does hereby agree as follows:
(i) Space Host shall ensure that a Space conforms with the description and condition of the Space as provided by the Space Host to UpNext to be posted on the Platform;
(ii) Space Host agrees that it shall comply with all applicable building codes, zoning and other land use rules,regulations and ordinances as required by law as it pertains to the Space and that it shall be responsible forensuring that the Space remains in compliance with all such rules, regulations and ordinances throughout the time such Space is used for a pop-up activation by a Brand.
(iii) Space Host shall respond to a prospective Brand’s inquiry regarding a Space in a commercially reasonable manner within five (5) business days or less;
(iv) UpNext will not be a party to a Term Sheet or, if applicable, any Space Agreement executed between Space Host and a Brand;
(v) UpNext will not have any liability whatsoever for a Brand’s failure to comply with the terms of the Term Sheet, or if applicable, any Space Agreement;
(vi) UpNext shall have no liability whatsoever, including without limitation for lost business or profits, to Space Host or its affiliates, partners, employees, officers, contractors, or agents if the Space is not used as a pop-up activation for a Brand through the Activated Listing;
(vii) Space Host will give UpNext no less than thirty (30) days’ prior written notice of its intention to remove a Space from the Platform; provided, however, that any pop-up activation at the Space agreed to between Space Host and Brand prior to removal from the Platform shall not be cancelled, unless mutually agreed to between Space Host and Brand.
(viii) In the event Space Host cancels any pop-up activation within thirty (30) days prior to the launch of theparticular pop-up activation, Space Host shall pay UpNext an amount equal to the expected UpNext Fee for that pop-up activation.
(ix) Space Host will permit, and will provide that any Space Agreement shall permit, the non-permanent installation by UpNext of a small vinyl or other branded sign at the Space.
B. UpNext does hereby agree as follows:
(i) UpNext will not remove a Space from the Platform unless (i) this Agreement has been terminated as provided above or (ii) for the reasons as set forth in Section 8, below.
8. Removal of Space from Platform. The Parties agree that a Space may be removed from the Platform for the following reasons:
(i) The Space is no longer available for pop-up use by any Brands, subject to the notice requirement as set forth herein;
(ii) The Space is discovered to not comply with all applicable building codes, zoning and other land use rules, regulations and ordinances as required by law; and
(iii) At UpNext’s sole discretion, including if it has reason to believe that the Space no longer meets the quality standards required to be included as an Activated Listing on the Platform.
10. Exclusivity. Space Host agrees not to list a Space for short-term or pop-up occupancy through any lister other than UpNext during the Term of this Agreement. Nothing in this Section 10 shall be deemed to limit Space Host’s ability to leaseor sublease any Space to any tenant on a long term basis, which shall mean greater than (1) year. In the event the Space is nolonger available for Brands to use as a pop-up activation, Space Host shall provide notice to UpNext as set forth herein andsuch Space shall be removed from the Platform.
11. Indemnification. Space Host shall indemnify, defend and hold harmless UpNext and its respective employees, officers and agents from and against any and all third party suits, actions, claims, demands, damages, losses, liabilities, expenses and costs, including without limitation reasonable attorney's fees, arising out of or in any manner relating to: (i) a material breach of any of the terms, covenants or conditions of this Agreement; (ii) any personal injury, death or property damage incurred by any person or entity arising out of or connected with the activities contemplated bythis Agreement where such injury, death or damage is caused by the negligence, misconduct, breach of warranty or strict liability of Space Host or its employees, officers, contractors, or agents; (iii) the failure of Space Host or its employees, officers, contractors or agents to comply with the laws, ordinances, or regulations of any local, city, county, state, federal or other licensing or regulatory authority in which a Space is located; or (iv) any dispute between Space Host and a Brandrelated to a Space Agreement.
12. Notices. Any notices hereunder shall be sent to the parties at their respective addresses set forth in thepreamble of this Agreement (or such other address as one party hereto may notify the other in accordance with the provisions of this Section 12), by hand, by a nationally recognized overnight courier service, or by certified or registered mail (postage prepaid and return receipt requested), and shall be deemed given when received.
14. Miscellaneous. This Agreement constitutes and contains the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes any and all prior negotiations, correspondence, undertakings, representations, warranties and agreements between the parties respecting the subject matter hereof. All exhibits referred toherein are incorporated by reference as if fully set forth in this Agreement. The headings contained in this Agreement are forreference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. This Agreement shall be binding upon and shall enure to the benefit of the parties hereto and their respective successors and assigns. This Agreement is solely for the benefit of Space Host and UpNext, and no other person or entity shall be deemed a third party beneficiary of any term hereof. In no event shall either Space Host or UpNext be liable to the other for any indirect, consequential, special, incidental or punitive damages, including without limitation for lost business or profits or for anyfailure or delay
in performance of its obligations under this Agreement beyond its reasonable control other than the obligation of payment. The Agreement shall be governed by and construed and interpreted in accordance with the laws of the Commonwealth of Massachusetts, and may be amended from time to time only by a writing signed by both parties.
The Terms of Service (this “Agreement”) set out the terms on which UpNext LLC, a Massachusetts limited liability company (“UpNext”, “we” or “us”), will provide the pop-up matchmaking service (“Platform”) available on or through the UpNext website at www.poppingupnext.com (“Website” or “Site”) or mobile applications for the permitted purpose (collectively, the “Service”) to you, a user of the Service (“you” or “User”). You should read this Agreement carefully. By indicating acceptance of this Agreement or by otherwise using the Service, you are entering into a legally binding agreement with us and are agreeing to the terms of this Agreement. If you are using the Service on behalf of an organization (“Organization”), you represent and warrant that you have the right to bind the Organization to this Agreement, and the term “you” will include both you, the individual user, and the Organization you represent. If you do not agree to these terms and conditions, you must refrain from using our Website and the Service.
How the UpNext Platform Works
UpNext provides the Platform on its Website for facilitating short-term pop-up activation arrangements between owners or authorized occupants of space (“Space Host”) and a User (“Brand”). The Platform allows Brands who need short-term space for pop-up activations to search and request access to spaces offered and made available by Space Hosts for short-term pop-up activations. UpNext makes it easy for Brands to find spaces that suit their needs and then facilitates the process of requesting and accessing each space. If the Space Host approves the request, the Space Host and Brand will enter into an agreement directly (the “Space Agreement”). UpNext then collects the rental payments and/or other fees (“Space Fee”) from the Brand, on behalf of the Space Host.
Space Hosts
Space Hosts making their properties available through the Platform will enter into an agreement with UpNext which will govern the relationship between the Space Host and UpNext (the “UpNext/Space Host Agreement”). You will not be a party to, or a third party beneficiary of, the UpNext/Space Host Agreement.
User/Brand
If you are a interested Brand, when you have identified a space on the Platform which meets your requirements, you will submit a request to the Space Host via the Platform on the Website. The Space Host will then respond, either by accepting your request or declining it. If the request is accepted, you will enter into a Space Agreement directly with the Space Host on terms approved by the Space Host and you. Any agreements for the short-term pop-up activations using the spaces found on or accessed through the Platform are made exclusively between Space Host and Brand.
Brands must comply with the terms of their direct arrangement or agreement with the Space Host, including any special terms or requirements that may be specified by the Space Host. UpNext is not responsible for the conduct of any Space Host during the negotiations of any agreement made and entered into between Space Host and Brand. The terms and conditions of that separate agreement between the Space Host and the Brand shall not bind or obligate UpNext as UpNext is not a party to that separate agreement. UpNext shall not be required or expected to fulfill any obligations of the parties under the Space Agreement. UpNext does not make or accept any offers, either in its own capacity or on behalf of either the Space Host or Brand or any other party. UpNext disclaims all liability arising from or related to the Space Agreement or any other arrangements between the Space Host and the Brand to the fullest extent permitted by law.
As the Brand and User of the Platform, you accept that any decision to proceed and use the space that is made available to you is made solely by you without reliance on any representation, warranty or statement made to the Brand by UpNext.
UpNext has no obligations to the Brand or Space Host to maintain or repair any space that is provided by the Space Host to the Brand at the end or expiration of any arrangement or agreement between the Space Host and Brand.
By using the Website to access the Platform of available spaces, the User agrees that any user payments made in relation to the use of a particular space found on or accessed through the Platform shall be made directly to UpNext and shall not, under any circumstances, be made to the Space Host, except for with the prior written approval of UpNext. Unless otherwise agreed to by the parties, all refundable deposits (i.e. security deposits) will be paid directly to the Space Host by the Brand pursuant to the terms of the Space Agreement.
Brands are responsible for procuring insurance of their own property and for insurance against risks normally borne by occupiers of retail premises or as otherwise required by the Space Host. If a User has any doubt about what insurance is required, the User should consult with the User’s own insurers or insurance brokers. Under no circumstances shall any statements made by UpNext be considered legal, risk management or insurance advice.
Users are solely responsible for determining whether a space that is listed or made available through the Platform is satisfactory and fits the User’s or Brand’s requirements, both as it relates to the specific features and facilities of the physical space and with respect to the location. UpNext does not warrant or represent that spaces listed by Space Hosts are of suitable condition to be provided for short-term pop-up activations or that Space Hosts have the right to enter into any agreements with Brands as it pertains to using the space for short-term pop-up activations and to receive payments as it relates to use of the space. User acknowledges and accepts that the Space Hosts are responsible for the legality, accuracy and completeness of the description of all properties and related terms posted on the Website and that UpNext has no liability whatsoever for a Space Host’s failure to comply with these obligations.
UpNext disclaims all liability for the legality, accuracy or completeness of any offers or content posted by Space Hosts and with respect to any agreement between the Space Host and the Brand that fails to be completed for any reason whatever.
Administration Fee
The User shall pay UpNext an Administration Fee of five percent (5%) of the Space Fee (as defined above) (plus any applicable taxes). Any applicable Administration Fees (including any applicable taxes) will be disclosed to a User prior to finalizing a request for a space. The Administration Fee is subject to a minimum charge of fifty dollars ($50.00) (as applicable). We reserve the right to change the Administration Fees at any time, provided that any such fee changes will not affect any bookings made prior to the effective date of the fee change. Except as otherwise provided on the Platform, Administration Fees are non-refundable.
General Terms
UpNext does not at any time provide, or purport to provide, any advice, or advisory services, to Brands, Space Hosts, or any other party, including with respect to the commercial, financial, legal or any other consequences of any agreement between the Space Hosts and the Brands. UpNext disclaims all liability relating to the provision of advice relating to property. Brands and Space Hosts accept that UpNext’s role is limited to no more than that of a facilitator.
UpNext reserves the right at its sole discretion to remove or edit (without notice) from the Website any illegal, inaccurate or misleading content, including anything that in its opinion is injurious to UpNext’s goodwill or goodwill attaching to the Website.
UpNext makes no warranty as to any particular result being achieved or obtained, or being achievable or obtainable, from use of the Platform on the Website and the introduction of any prospective Brand to Space Host.
Accessing our site
Access to the Website is permitted on a temporary basis, and we reserve the right to withdraw or amend the service we provide on our Website without notice (see below). We will not be liable if, for any reason, our Website is unavailable at any time or for any period.
From time to time, we may restrict access to some parts of our Website, or our entire Website, to Users who have registered with us.
If you choose, or you are provided with, a user identification code, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any third party. We have the right to disable any user identification code or password, whether chosen by you or allocated by us, at any time, if in our opinion you have failed to comply with any of the provisions of these terms of use.
When using our site, you must comply with the provisions of our acceptable use policy.
You are responsible for making all arrangements necessary for you to have access to our Website.
You are also responsible for ensuring that all persons who access our Website through your internet connection are aware of these terms, and that they comply with them.
Intellectual Property Rights
We are the owner or the licensee of all intellectual property rights on the Website, including the Platform, and of the material published on it.
Those works are protected by copyright laws and treaties around the world. All such rights are reserved.
You may print off one copy, and may download extracts, of any page(s) from our Website for your personal reference and you may draw the attention of others within your organization to material posted on our site.
You may not modify the paper or digital copies of any materials you have printed or downloaded in any manner whatsoever, and you may not use any illustrations, photographs, video or audio sequences or any graphics separately from any accompanying text.
Our status (and that of any identified contributors) as the authors of material on our Website must always be acknowledged.
You may not use any part of the materials on our Website, including any material obtained from the Platform, for commercial purposes without obtaining an express, written license to do so from us or our licensors. If you print, copy or download any part of our Website in breach of these terms of use, your right to use our Website, including use of the Platform, will cease immediately and you shall, at our option, return or destroy any copies of the materials you have made. You acknowledge that your breach or threatened breach of the terms of this paragraph shall cause irreparable harm to UpNext and, in addition to any other available remedies, UpNext shall be entitled to obtain temporary and/or permanent injunctive relief to enforce this provision.
Reliance on information posted
Commentary and other materials posted on our Website are not intended to amount to advice on which any party may rely. We therefore disclaim all liability and responsibility arising from any reliance placed on such materials by any visitor to our Website, or by anyone who may be informed of any of its contents.
Our site changes regularly
We aim to update our Website, including the Platform, regularly, and may change the content at any time. If the need arises, we may suspend access to our Website, or close it indefinitely. Any of the material on our Website may be out of date at any given time, and we are under no obligation to update such material.
Our liability
The material displayed on our Website, including the Platform, is provided without any guarantees, conditions or warranties as to its accuracy. To the extent permitted by law, UpNext hereby expressly disclaims:
● All conditions, warranties and other terms which might otherwise be implied by statute, common law or the law of equity.
● Any liability for any direct, indirect or consequential loss or damage incurred by any User in connection with the Platform or our Website or in connection with the use, inability to use, or results of the use of the Platform or our Website and any websites linked to it and any materials posted on it, whether caused by tort (including negligence), breach of contract or otherwise, even if foreseeable.
The services and products being sold hereunder are provided without warranty of any kind, either express or implied, including, without limitation, implied warranties of merchantability and fitness for a particular purpose. In no event shall UpNext be liable to any user or any third party for any indirect or consequential damages arising out of, or relating to, the services or products offered hereunder and, in any event, UpNext’s liability to user or any third party shall not exceed the amount paid to UpNext hereunder.
Information about you and your visits to our site
We process information about you in accordance with our privacy policy. By using the Platform, you consent to such processing and you warrant that all data provided by you is accurate.
Transactions concluded through our site
Short-term pop-up activation arrangements formed through the Platform, or as a result of visits to the Platform made by you, are governed solely by the terms and conditions of the Space Agreement between the Space Host and Brand.
Uploading material to our site
Whenever you make use of a feature that allows you to upload material to our Website, or to make contact with other users of our Website, including the Platform, you must comply with the content standards set out in our acceptable use policy. You warrant that any such contribution does comply with those standards, and you hereby agree to indemnify us for any breach of that warranty.
Any material you upload to our site will be considered non-confidential and non-proprietary, and we have the right to use, copy, distribute and disclose to third parties any such material for any purpose. We also have the right (if requested) to disclose your identity to any third party who is claiming that any material posted or uploaded by you to our site constitutes a violation of their intellectual property rights, or of their right to privacy.
We will not be responsible, or liable to any third party, for the content or accuracy of any materials posted by you or any other user of our Website.
We have the right to remove or edit any material or posting you make on our site if, in our opinion, such material does not comply with the content standards set out in our acceptable use policy.
Viruses, hacking and other offenses
You must not misuse our Website by knowingly introducing viruses, Trojan horses, worms, logic bombs or other material which is malicious or technologically harmful. You must not attempt to gain unauthorized access to our Website, the server on which our Website is stored or any server, computer or database connected to our Website. You must not attack our Website via a denial-of-service attack or a distributed denial-of service attack.
If you breach this provision, we reserve our right to enforce all of our rights under applicable law against you.
We will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of our Website or to your downloading of any material posted on it, or on any website linked to it.
Linking our site
If you wish to make any use of material on our Website, please address your request to hello@poppingupnext.com.
Links from our site
Where our Website contains links to other websites and resources provided by third parties, these links are provided for your information only. We have no control over the contents of those websites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them.
Jurisdiction and applicable law
Federal and state courts located in the Commonwealth of Massachusetts will have exclusive jurisdiction over any claim arising from, or related to, a visit to our Website, including the Platform. These terms of use and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts.
Variations
We may revise these terms of use at any time by amending this page. You are expected to check this page from time to time to take notice of any changes we made, as they are binding on you. Some of the provisions contained in these terms of use may also be superseded by provisions or notices published elsewhere on our Website.
Your concerns
If you have any concerns about material which appears on our site, please contact hello@poppingupnext.com.
Further, please note that we specifically prohibit persons from uploading, embedding, posting, emailing, transmitting or otherwise making available on or through the Website any material that infringes any copyright, patent, trademark, trade secret or other proprietary rights of any person or entity.