OPTALITY TERMS OF USE

Last Updated: August 2023

BEFORE USING OPTALITY, YOU SHOULD READ THESE TERMS OF USE AND THE UPFLEX BUSINESS TERMS AND CONDITIONS, THE OPTALITY PRIVACY STATEMENT, THE ACCEPTABLE USE POLICY, THE AND THE UPFLEX DATA PROCESSING AGREEMENT.

Newmark Group, Inc. and/or its affiliates existing from time to time (collectively “Newmark”, “we”, “us”, or “our”) provides the Services (as defined below) to you (which term, as used herein, includes you personally and, if you are using the Services on behalf of the company, organization or other entity on whose behalf we grant you access, such company, organization or other entity) subject to these Optality Terms of Use (these “Terms of Use”) and the Optality Privacy Statement available at this link: Optality Privacy Statement. By accepting these Terms of Use or by accessing and/or using the Optality website (located at this link: Optality) and/or the Optality App (the “Mobile App”) (collectively, the “Services”) you expressly acknowledge and agree to the terms and conditions set forth in these Terms of Use and the Optality Privacy Statement available at this link: Optality Privacy Statement. 

Newmark may, in its sole discretion, seek your consent to the terms and conditions of these Terms of Use by means of an electronic signature by requesting you to affirmatively check the box indicating your acceptance to these Terms of Use, or affirmatively “click” on boxes containing the words “I Accept,” “I Agree” or other similar phrases (collectively, “Acceptance Terms”). If you “click” on the Acceptance Terms, your “click” will be deemed a legally binding electronic signature. You acknowledge and agree that you will carefully review any document or web page before making such an electronic signature. By electronically indicating your agreement to these Terms of Use and/or registering for and/or accessing, browsing, and/or using the Services and/or accessing, browsing, and/or using any of the Content (as defined below), you acknowledge and agree: (i) that you intend to form a legally binding contract between you and Newmark; (ii) that you have read, understand and agree to the terms and conditions of these Terms of Use and to the collection and use of your personal information as set forth in our Optality Privacy Statement available at this link: Optality Privacy Statement; (iii) that you agree and intend that these Terms of Use to be the legal equivalent of signed, written contracts, and equally binding; (iv) that by electronically agreeing to these Terms of Use, you acknowledge that you have received a copy of these Terms of Use by your viewing a web page containing a hyperlink to the web page where these Terms of Use is displayed or otherwise; and (v) that if you are executing these Terms of Use on behalf of others (including the company, organization or other entity on whose behalf Newmark grants you access to the Services), you hereby certify that you are an authorized representative, duly authorized, including where applicable, by all required corporate action to act on behalf of and bind Optality Privacy Statement (available at this link: Optality Privacy Statement) such others. If you do not agree with these Terms of Use or, if you are using the Services on behalf of the company, organization or other entity and do not have authority to bind such company, organization or other entity, you must not accept these Terms of Use and may not use the Services. Newmark reserves the right to modify these Terms of Use and/or the Optality Privacy Statement (available at this link: Optality Privacy Statement) at any time upon posting to the Services, so you should review these Terms of Use and the Optality Privacy Statement (available at this link: Optality Privacy Statement) whenever accessing and/or using the Services. Continued use of or access to the Services after the posting of modifications to these Terms of Use and/or the Optality Privacy Statement (available at this link: Optality Privacy Statement), signifies your acceptance of such Terms of Use and the Optality Privacy Statement (available at this link: Optality Privacy Statement), as modified. You may not access or use the Services if, at any time, you do not wish to accept the terms and conditions set forth in these Terms of Use or the Optality Privacy Statement (available at this link: Optality Privacy Statement). 

These Terms of Use apply to all visitors, users, subscribers, and others who access and/or use the Services (each, a “User”). As used in these Terms of Use, “include(s)” and “including” mean “including without limitation.”

SERVICES

Optality and the Services are powered by Upflex Inc. (“Upflex”). Optality is a web- and app-based marketplace which is designed for use only by our customers who have already created an Optality account by entering into a written Order (as defined below) with us and Upflex (see section titled “Additional Terms” below). If you do not already have an account with us, certain features of the Services may not be available to you. Optality enables registered Users (i.e., those Users who have registered an account with Optality on behalf of the company, organization or other entity on whose behalf we grant you access) to search and book flexible workspaces (“Spaces”) furnished by third-party providers of workspaces (“Space Providers”). Upflex provides the software and access to the Spaces and Space Providers. Your use of Optality and the Services as developed and hosted by Upflex is governed by these Terms of Use as well as any other additional terms described below (see section titled “Additional Terms” below). Space Providers are independent business owners. Newmark does not rent nor facilitate the rental of Spaces and does not employ or have any contractual relationship or affiliation with Space Providers. By using the Services you acknowledge and agree that Newmark does not supervise, direct, control or monitor Upflex, any Spaces or any Space Providers. 

ADDITIONAL TERMS

Your use of the Services will be subject to terms and conditions that are in addition to these Terms of Use described below (collectively, “Additional Terms”). If you do not have a registered account with Optality, your use of the Services is subject to these Terms of Use and the Optality Privacy Statement available at this link: Optality Privacy Statement. If you have a registered account with Optality, your use of the Services is subject to the following Additional Terms: (i) the tri-party order form executed between you, Newmark and Upflex (the “Order”), (ii) the Upflex Business Terms and Conditions available at this link: Optality Business Terms & Conditions; (iii) the Acceptable Use Policy available at this link: Optality Acceptable Use Policy; and (iv) the Upflex Data Processing Agreement (“DPA”) available at this link: Upflex Data Processing Agreement.  These Terms of Use govern the relationship between you and Newmark, and Upflex is not a party thereto. Similarly, all applicable Upflex terms and/or agreements govern the relationship between you and Upflex, and Newmark is not a party to such terms and/or agreements. The Order Form governs the relationship between you, Newmark and Upflex. 

SPACE BOOKINGS, USERS, NON-NEWMARK CONTENT AND USER SUBMITTED CONTENT

You can use the Services to interact with Space Providers and book Spaces, however, please be aware that we do not review or screen Users, including Space Providers, or Spaces, and you agree that you are solely responsible for Space Bookings and your interactions with other Users, including Space Providers, and release us from all responsibility and liability with respect thereto. Newmark has no control over, is not responsible for, and does not endorse or guarantee (i) the existence, quality, safety, suitability, or legality of any Space; (ii) the accuracy or reliability of any information or content, including any Space listings, ratings, reviews, opinions, advice or statements submitted, uploaded, posted, published, displayed, sent, received or stored (hereinafter, “submit(ted)(ing)”) on or through the Services or any of Newmark’s related social media by you (“User Content”) or any third party other than an authorized Newmark employee spokespersons while acting in their official capacity; or (iii) the performance or conduct of any User and/or third party, including any of the Space Providers. Newmark and certain of its suppliers and/or licensors of content, software or services or otherwise (collectively, “Suppliers”) reserve the right (but have no obligation) to monitor, modify, delete, limit or block access to, in each case, in whole or in part, any User Content or any other information or content submitted by any third party to or by otherwise using the Services or any of Newmark’s related social media. You should always exercise due diligence and care when deciding to use a Space or communicate and interact with other Users, including Space Providers, whether online or in person. 

INTELLECTUAL PROPERTY OWNERSHIP

You acknowledge and agree that Newmark and its Suppliers have and will retain exclusive ownership of the Services, and any and all materials therein or transferred thereby, including content, information, data and materials made available on or through the Services and/or submitted by Newmark on Newmark’s related social media, including software, images, graphics, illustrations, logos, text, audio, patents, trademarks, service marks, copyright, photographs, audio, video, music and any other information or content submitted by any third party (collectively, the “Content”), as well as all any and all intellectual property rights now or hereafter in and to any of the foregoing (collectively, the “Intellectual Property Rights”). All other trademarks, if any, on the Services are the property of their respective owners. You shall not remove any copyright, trademark or other notices or disclaimers contained in this Service and/or the Content. You acquire absolutely no rights or licenses in or to the Services, the Content or the Intellectual Property Rights, other than the limited rights to access and use the Services as expressly permitted by these Terms of Use and in compliance with applicable laws, rules, regulations and Newmark’s instructions from time to time. You agree to protect the proprietary rights of Newmark and all others having rights in the Services, the Content and/or the Intellectual Property Rights and to comply with all reasonable written or electronic requests made by Newmark or its Suppliers to protect their and others’ contractual, statutory and common law rights in the Services, the Content and/or the Intellectual Property Rights. 

Subject to your compliance with these Terms of Use and any applicable additional terms as described above (see section titled “Additional Terms” above), you are entitled to download the Mobile App and to access and view the Content included as part of the Services, but only for your personal, non-commercial purposes or, if you are using the Services on behalf of the company, organization or other entity on whose behalf Newmark grants you access, only for such company’s, organization’s or other entity’s internal business purposes. Any sale, resale, transmission or redistribution of any Services, Content or Intellectual Property Rights or any derivations of any of the foregoing for any purpose is strictly prohibited. Any copying, modification or other use of any Services, Content or Intellectual Property Rights or any derivations of any of the foregoing for any purpose other than your personal, non-commercial purposes, or, if you are using the Services on behalf of the company, organization or other entity on whose behalf Newmark grants you access, such company’s, organization’s or other entity’s internal business purposes, as applicable, is strictly prohibited. You are prohibited from using any of the Services, Content or Intellectual Property Rights or any derivations of any of the foregoing in any manner other than as expressly permitted under these Terms of Use. You agree to provide Newmark with prompt written notice of any unauthorized access and/or use of any Services, Content and/or Intellectual Property Rights or any derivations of any of the foregoing by any party or of any claim that any Services, Content and/or Intellectual Property Rights or any derivations of any of the foregoing infringes upon any intellectual property rights or other contractual, statutory or common law rights. 

You agree not to take any action to challenge the validity of, oppose or otherwise interfere with any intellectual property rights of Newmark and/or its Suppliers in or related to any or all aspects of the Services, including the Content, including, opposing issuance of any patent applications of Newmark and/or its Suppliers, or opposing or taking any action to challenge the validity of any issued patents of Newmark and/or its Suppliers. 

USER CONTENT

By submitting User Content or by otherwise accessing and/or using the Services, you unconditionally grant Newmark an unrestricted, irrevocable, non-exclusive, royalty-free, perpetual, world-wide, fully paid, transferable, assignable and sublicensable right and license to use, copy, store, reproduce, modify, adapt, publish, translate, create collective and/or derivative works from, distribute, perform and display any such User Content, in whole or in part, and to incorporate any such User Content in any works in any form, media, software or technology now known or later developed, in each case, for any purposes whatsoever, including for advertising, marketing, publicity and promotional purposes, subject only to the Optality Privacy Statement available at this link: Optality Privacy Statement. You hereby waive all moral rights in any such User Content.

You are solely responsible for all User Content. You acknowledge that your submission of any User Content to the Service is at your own risk. None of Newmark nor its partners, directors, officers, employees or agents (collectively, “Newmark Parties”) nor any of their subcontractors or Suppliers will assume any liability to you with regard to any loss or liability relating to such User Content in any way.

Newmark and/or Upflex may, without prior notice, remove or disable access to any User Content that it or they find to be in violation of these Terms of Use, any of the Additional Terms and/or its or their then-current policies, or otherwise may be harmful or objectionable to Newmark or Upflex, its users, third parties, or property. 

USE RESTRICTIONS

YOU MAY NOT COPY, REPRODUCE, RECOMPILE, DECOMPILE, DISASSEMBLE, REVERSE ENGINEER, DISTRIBUTE, PUBLISH, DISPLAY, PERFORM, MODIFY, UPLOAD TO, CREATE DERIVATIVE WORKS FROM, TRANSMIT, ASSIGN, SUBLICENSE, PROVIDE ACCESS TO, USE, SELL, OR IN ANY WAY EXPLOIT ALL OR ANY PART OF THE SERVICES, INCLUDING ANY CONTENT, DIRECTLY OR INDIRECTLY, EXCEPT AS EXPRESSLY PROVIDED HEREIN. THE CONTENTS OF THE SERVICES MAY NOT BE RECIRCULATED, REDISTRIBUTED OR PUBLISHED BY YOU WITHOUT NEWMARK’S PRIOR WRITTEN CONSENT. IF YOU DOWNLOAD ANY INFORMATION OR SOFTWARE FROM THE SERVICES, YOU AGREE THAT YOU WILL NOT COPY IT OR REMOVE, MODIFY OR OBSCURE ANY DISCLAIMER, COPYRIGHT, TRADEMARK, OR OTHER PROPRIETARY NOTICES OR LEGENDS CONTAINED IN OR ON ANY PORTION OF THE SERVICES OR IN ANYTHING COPIED, DOWNLOADED, OR ACCESSED THROUGH OR USING THE SERVICES, INCLUDING CONTENT. MODIFICATION OF ANY OF THE CONTENT BY YOU WOULD BE A VIOLATION OF NEWMARK’S OR ITS SUPPLIER’S COPYRIGHT AND/OR OTHER PROPRIETARY RIGHTS. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS OF USE, YOU MAY NOT: (I) USE THE SERVICES (OR ANY PORTION THEREOF) TO COMPETE WITH NEWMARK OR THE SERVICES; (II) USE THE SERVICES (OR ANY PORTION THEREOF) TO CREATE, DIRECTLY OR INDIRECTLY, ANY DATABASE OR PRODUCT TO THE EXTENT PERMITTED BY THE FEATURES OF THE SERVICES; (III) SCRAPE, INDEX, HARVEST, SURVEY, OR OTHERWISE COPY, MINE, OR COLLECT ANY PORTION OF THE SERVICES, INCLUDING ANY CONTENT OR OTHER DATA; (IV) UNDULY BURDEN OR HINDER THE OPERATION AND/OR FUNCTIONALITY OF ANY ASPECT OF THE SERVICES OR THEIR SYSTEMS OR NETWORKS; (V) DISCRIMINATE AGAINST OR HARASS ANYONE ON THE BASIS OF RACE, NATIONAL ORIGIN, RELIGION, GENDER IDENTITY, PHYSICAL OR MENTAL DISABILITY, MEDICAL CONDITION, MARITAL STATUS, AGE OR SEXUAL ORIENTATION, OR OTHERWISE ENGAGE IN ANY VIOLENT, HARMFUL, ABUSIVE OR DISRUPTIVE BEHAVIOR; OR (VI) SUBMIT ANY USER CONTENT THAT IS (A) FRAUDULENT, FALSE, MISLEADING (DIRECTLY BY OMISSION OR FAILURE TO UPDATE INFORMATION) OR DECEPTIVE, (B) IS DEFAMATORY, LIBELOUS, OBSCENE, PORNOGRAPHIC, VULGAR OR OFFENSIVE, (C) PROMOTES DISCRIMINATION, BIGOTRY, RACISM, HATRED, HARASSMENT OR HARM AGAINST ANY INDIVIDUAL OR GROUP, (D) IS VIOLENT OR THREATENING OR PROMOTES VIOLENCE OR ACTIONS THAT ARE THREATENING TO ANY OTHER PERSON OR ANIMAL, OR (E) PROMOTES ILLEGAL OR HARMFUL ACTIVITIES OR SUBSTANCES. YOU MAY NOT USE THE SERVICES FOR ANY ILLEGAL PURPOSE OR IN ANY MANNER INCONSISTENT WITH APPLICABLE INTERNATIONAL, NATIONAL, STATE, OR LOCAL LAW, REGULATION, OR RULE OR THESE TERMS OF USE. YOU MAY NOT OFFER ANY PART OF THE SERVICES FOR SALE OR DISTRIBUTE THEM OVER ANY OTHER MEDIUM INCLUDING TO TELEVISION OR RADIO BROADCAST, A COMPUTER NETWORK OR HYPERLINK FRAMING ON THE INTERNET WITHOUT THE PRIOR WRITTEN CONSENT OF NEWMARK. YOU MAY NOT USE ANY OF NEWMARK’S OR OPTALITY’S TRADEMARKS, TRADE NAMES OR SERVICE MARKS IN ANY MANNER WITHOUT NEWMARK’S PRIOR WRITTEN CONSENT ON A CASE-BY-CASE BASIS, WHICH IF GIVEN MAY BE WITHDRAWN AT ANY TIME, AND YOU ACKNOWLEDGE THAT YOU HAVE NO OWNERSHIP RIGHTS IN OR TO ANY OF THESE NAMES AND MARKS. YOU WILL NOT DILUTE, TARNISH OR OTHERWISE HARM THE OPTALITY OR NEWMARK BRANDS IN ANY WAY, INCLUDING THROUGH REGISTERING OR USING OPTALITY, NEWMARK OR DERIVATIVE TERMS IN DOMAIN NAMES, TRADE NAMES, TRADEMARKS OR OTHER SOURCE IDENTIFIERS, OR REGISTERING AND/OR USING DOMAIN NAMES, TRADE NAMES, TRADEMARKS OR OTHER SOURCE IDENTIFIERS THAT CLOSELY IMITATE OR ARE CONFUSINGLY SIMILAR TO ANY OF OPTALITY’S OR NEWMARK’S DOMAINS, TRADEMARKS, COPYRIGHTS OR CONTENT. YOU WILL NOT USE THE SERVICES OR THE CONTENT IN UNSOLICITED MAILINGS OR SPAM MATERIAL. YOU WILL NOT SPAM OR SEND UNSOLICITED MAILINGS TO ANY PERSON OR ENTITY USING THE SERVICES. YOU AGREE TO COMPLY WITH ANY AND ALL OTHER APPLICABLE TERMS AND CONDITIONS SET FORTH ON THE SERVICES, INCLUDING ALL OF UPFLEX’S APPLICABLE TERMS OF SERVICE (AVAILABLE AT THIS LINK: TERMS OF SERVICE) AND IN NEWMARK’S INSTRUCTION PROVIDED FROM TIME TO TIME. WITHOUT LIMITING THE FOREGOING AND IN ADDITION THERETO, YOU AGREE, IN THE ABSENCE OF NEWMARK’S EXPRESS WRITTEN CONSENT, NOT TO USE, DEVELOP, MARKET, OBTAIN, EXPLOIT OR IMPLEMENT THE SERVICES, INCLUDING ANY CONTENT. YOU WILL PROMPTLY NOTIFY NEWMARK IF YOU BECOME AWARE OF ANY VIOLATION OF OR ATTEMPT TO VIOLATE THE TERMS OF THIS SECTION.

MODIFICATION, SUSPENSION, AND TERMINATION

In the event you do not have an active Order, we may, at any time, without prior notice, and for any reason, change the Services; stop providing the Services or features of the Services, to you or to Users generally; or create usage limits for the Services. In the event you do not have an active Order, we may permanently terminate or suspend your access to the Services without notice and liability for any reason, including, if in our sole determination you violate any provision of these Terms of Use, or for no reason. Upon suspension or termination of your access to or use of the Services and/or your relationship with us, for any reason or no reason, (i) you may no longer use any portion of the Services in any manner and will immediately delete or destroy all elements of the Services in your possession or control, and (ii) you will continue to be bound by these Terms of Use. Please note that Upflex may have additional modification, termination and/or suspension rights pursuant to its terms and/or agreements described above in the section titled “Additional Terms”.

USER CODES

In connection with your use of and/or access to the Services, from time to time, Newmark, Upflex, or the company, organization or other entity on whose behalf we grant you access, may provide you with user names, passwords and/or other unique identifiers (collectively, “User Codes”). You are responsible for the security and confidentiality of the User Codes and agree not to disclose them to any third party, including, any other employee in your company, organization or other entity on whose behalf you are accessing and/or using the Services. You are responsible for any and all information provided, including User Content submitted, and any and all acts and/or omissions that occur, while User Codes are being used, in each case, whether by you or a third party. The Newmark Parties are not responsible for any breach of security caused by your failure to maintain the confidentiality and security of any of the User Codes. You agree to notify Newmark immediately in the event of loss, theft or disclosure of any or all of the User Codes or if you believe the confidentiality or security of any or all of the User Codes has been compromised in any way. You are limited to one User Code. Duplicate User Codes may be revoked. Newmark reserves the right to revoke or modify the User Codes at any time. 

REPRESENTATIONS AND WARRANTIES

You represent and warrant that:

• you will not use or access the Services or any of the Content if you are not able to form legally binding contracts (for example, if you are under 18 years old);
• you are the person to whom the User Codes you used to access the Services were issued by us and the information you provided to us in connection with the issuance of the User Codes, if any, was and is true, accurate, current and complete; 
• if you are accessing the Services on behalf of the company, organization or other entity to whom the User Codes you used to access the Services were issued by us, you are duly authorized by all necessary action and have all consents, rights and authority to bind that company, organization or other entity to these Terms of Use, and you agree to these Terms of Use on that company’s, organization’s or other entity’s behalf; 
• you will not reverse engineer, de-compile or reverse compile any of our technology, including any software or Java applets associated with the Services and/or the Content;
• unless we expressly authorize you to do so in writing, you will not use, reproduce, duplicate, copy, sell, resell, distribute, publish or exploit for any commercial purposes any portion of the Services and/or the Content; 
• you will access and use the Services in compliance with any and all applicable law(s), rules(s) and regulation(s) (whether in the United States or other countries) and in accordance with these Terms of Use; and 
• you have all consents, rights and authority to provide and submit any and all User Content through the Services or using the User Codes, the Services, the Content or otherwise and all such User Content: (1) is true, accurate, current and complete and we may rely on such User Content; (2) is not libelous, defamatory, indecent, obscene, harassing, hateful or violent; (3) is not meant to harm any of the Newmark Parties or any third party; (4) does not constitute or include viruses or other harmful codes; (5) as well as its anticipated uses, does not violate, infringe or misappropriate any copyright, patent, trademark or other proprietary rights, or right of publicity or privacy of any of the Newmark Parties or any third party; and (6) does not violate these Terms of Use, or any applicable law, rule or regulation (whether of the United States or other countries). 

USER CONDUCT

Use of the Services and all Spaces by you is governed by (and you will comply with) the Optality Acceptable USe Policy (available at this link: Optality Acceptable Use Policy), including the “Guest Code of Conduct” set forth therein.

FEEDBACK

You may choose to or we may invite you to submit comments or ideas about the Services, including about how to improve the Services or our offerings (“Feedback”). By submitting any Feedback, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Newmark under any fiduciary or other obligation, and that we are free to use the Feedback without any additional compensation to you, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your Feedback submission, Newmark does not waive any rights to use similar or related ideas previously known to Newmark, or developed by its employees, or obtained from sources other than you.

DISCLAIMERS; LIMITATION OF LIABILITY

ANY USE OF THE SERVICES OR CONTENT AND/OR ANY SUBMISSION OF ANY USER CONTENT THROUGH OR IN CONNECTION WITH THE SERVICES, IS AT YOUR OWN RISK. THE SERVICES AND THE CONTENT ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RELIABILITY, QUALITY, TITLE, TIMELINESS, CURRENCY, ABSENCE OF VIRUSES OR DAMAGING OR DISABLING CODE, OR COMPLETENESS OF THE SERVICES AND/OR THE CONTENT, OR IN RESPECT OF ANY MATERIALS OR PRODUCTS REFERRED TO ON THE SERVICES, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE NEWMARK PARTIES OR ANY OF THEIR SUBCONTRACTORS OR SUPPLIERS OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING AND IN ADDITION THERETO, THE NEWMARK PARTIES DO NOT, NOR DO ANY OF THEIR SUBCONTRACTORS OR SUPPLIERS, WARRANT THAT (I) THE SERVICES OR CONTENT WILL MEET YOUR REQUIREMENTS OR THAT THE SERVICES ARE COMPATIBLE WITH YOUR EQUIPMENT OR THAT THE SERVICES OR CONTENT AND/OR ANY USER CONTENT YOU SUBMIT THROUGH OR IN CONNECTION WITH THE SERVICES ARE OR WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, FREE FROM LOSS, DESTRUCTION, DAMAGE, CORRUPTION, ATTACK, INTERFERENCE, INTERRUPTION, HACKING, ERRORS, VIRUSES, WORMS, OR OTHER SECURITY INTRUSION; (II) DEFECTS OR ERRORS, IF ANY, WILL BE CORRECTABLE  OR CORRECTED; OR (III) THE NEWMARK PARTIES OR ANY OF THEIR SUBCONTRACTORS OR SUPPLIERS HAVE ANY RESPONSIBILITY TO INFORM YOU OF ANY DIFFICULTIES THEY OR OTHER THIRD PARTIES EXPERIENCE CONCERNING USE OF THE SERVICES OR CONTENT, OR TO TAKE ANY ACTION IN CONNECTION WITH THOSE DIFFICULTIES. 

YOU ASSUME THE ENTIRE COST OF ALL SERVICING, REPAIR OR CORRECTION THAT MAY BE NECESSARY FOR YOUR COMPUTER, MOBILE PHONE, TABLET AND/OR OTHER EQUIPMENT AND/OR SOFTWARE AS A RESULT OF ANY VIRUSES, ERRORS OR OTHER PROBLEMS YOU MAY HAVE AS A RESULT OF VISITING OR USING THE SERVICES. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS USED AND/OR DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR USE OF THE SERVICES. FURTHER, NEITHER THE NEWMARK PARTIES NOR ANY OF THEIR SUBCONTRACTORS OR SUPPLIERS WARRANTS, ENDORSES, GUARANTEES, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ANY HYPERLINKED WEBSITE OR SERVICE, AND NEITHER THE NEWMARK PARTIES NOR ANY OF THEIR SUBCONTRACTORS OR SUPPLIERS WILL BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE NEWMARK PARTIES NOR THEIR SUBCONTRACTORS OR SUPPLIERS  BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF BUSINESS, LOSS OF PROFIT, LOSS OR CORRUPTION OF DATA, LOSS OF GOODWILL OR REPUTATION, WASTED MANAGEMENT TIME OR OTHER INTANGIBLE LOSSES), IN EACH CASE, WHETHER ARISING OUT OF OR RELATING TO THE USE OF, INABILITY TO USE, OR RELIANCE ON, THE SERVICES, THE CONTENT OR ANY LINKS ON THE SERVICES.

WITHOUT LIMITING ANY OF THE FOREGOING AND IN ADDITION THERETO, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NONE OF THE NEWMARK PARTIES NOR ANY OF THEIR SUBCONTRACTORS OR SUPPLIERS ASSUMES ANY LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND/OR USER CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICES AND/OR CONTENT; (III) INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES; (IV) BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY; (V) ERRORS OR OMISSIONS IN THE CONTENT OR USER CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT OR USER CONTENT, INCLUDING YOUR SUBMISSION OF USER CONTENT THROUGH OR IN CONNECTION WITH THE SERVICES; (VI) HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES, USER CODES, CONTENT OR USER CONTENT AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. 

IN NO EVENT SHALL THE NEWMARK PARTIES’ OR ANY OF THEIR SUBCONTRACTORS’ OR SUPPLIERS’ TOTAL LIABILITY TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, CAUSE OF ACTION, LOSSES OR COSTS EXCEED THE AMOUNT YOU PAID TO NEWMARK, IF ANY, FOR ACCESSING THE SERVICES.

THE LIMITATION OF LIABILITY SET FORTH ABOVE APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF NEWMARK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THESE TERMS OF USE WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

ADDITIONAL DISCLAIMERS

Nothing set forth on or through the Services should be construed as a recommendation to purchase or sell any product or instrument or to enter into any transaction, or as a representation that any particular product or instrument is suitable or appropriate for you. Many of the products described on or through the Services and/or in any of the Content involve significant risks and you should not enter into any transactions unless you fully understand all of these risks and have independently determined that the risks are acceptable to you and that the transactions are appropriate for you in light of your objectives, experience, financial and operational resources and other relevant circumstances. Any discussion of risks contained on or through the Services and/or in any of the Content, however, should not be considered to be a disclosure of the risks of particular transactions, or a complete discussion of the risks which are mentioned.

You should not construe any of the Content as business, financial, investment, hedging, trading, legal, regulatory, tax or accounting advice and you should not make the Services (or any portions thereof) the primary basis for any trading decisions. In providing the Services and the Content and entering into any transactions in the products described in the Services, Newmark is acting solely in the capacity of an arm’s length contractual counterparty and not as a financial advisor or a fiduciary. Under no circumstances should Newmark be considered your advisor or fiduciary and, if you require advice with respect to the products identified in the Services and/or the Content or any contemplated transactions, you should consult your own business, financial, accounting or legal advisors. 

THIRD-PARTY DISTRIBUTION CHANNELS

The Mobile App may be made available through the Apple App Store, the Google Play Store, or other distribution channels (“Distribution Channels”). If you obtain the Mobile App through a Distribution Channel, you may be subject to additional terms of the Distribution Channel. These Terms of Use are between you and us only, and not with the Distribution Channel. To the extent that you utilize any other third-party products and services in connection with your use of the Services, you agree to comply with all applicable terms of any agreement for such third-party products and services.

With respect to Mobile Apps that are made available for your use in connection with an Apple-branded product (the, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in these Terms of Use, the following terms and conditions apply:

• Newmark and you acknowledge that these Terms of Use are concluded between Newmark and you only, and not with Apple Inc. (“Apple”), and that Apple has no responsibility for the Apple-Enabled Software or content thereof.
• You may only use the Apple-Enabled Software on an iPhone, iPod Touch, iPad, or other Apple device that you own or control and your use of the Apple-Enabled Software must comply with the Apple App Store Terms of Service.
• Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software. 
• Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software, if any, to you; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty, which will be solely governed by these Terms of Use and any law applicable to Newmark.
• You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software, including: (a) product liability claims; (b) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection, privacy, or similar legislation; and all such claims are governed by these Terms of Use and any law applicable to Newmark. 
• You acknowledge that, in the event of any third-party claim that the Apple-Enabled Software or your possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between Newmark and Apple, Newmark, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim to the extent required by these Terms of Use.
• You represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.

• You must comply with applicable third-party terms of agreement when using the Apple-Enabled Software, e.g., your wireless data service agreement.
• You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms of Use as relates to your license of the Apple-Enabled Software, and that, upon your acceptance of the terms and conditions of these Terms of Use, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Use as relates to your license of the Apple-Enabled Software against you as a third-party beneficiary thereof.

The following paragraph applies to any Mobile App you download from the Google Play Store (“Google-Sourced Software”): (a) you acknowledge that these Terms of Use are between you and Newmark only, and not with Google, Inc. (“Google”); (b) your use of Google-Sourced Software must comply with Google’s then-current Google Play Terms of Service; (c) Google is only a provider of Google Play where you obtained the Google-Sourced Software; (d) Newmark, and not Google, is solely responsible for Newmark’s Google-Sourced Software; (e) Google has no obligation or liability to you with respect to Google-Sourced Software or these Terms of Use; and (f) you acknowledge and agree that Google is a third-party beneficiary to these Terms of Use as it relates to Newmark’s Google-Sourced Software.

THIRD-PARTY WEBSITES AND INFORMATION

The Services may contain links to third-party sites, content, information, materials, products, and services that are not owned or controlled by the Newmark Parties or any of their subcontractors or Suppliers. Newmark does not endorse or assume any responsibility for any such third-party sites, information, content, materials, products, or services. Such third-party sites, information, content, materials, products, and services are publicly available and any access provided thereto through the Services is solely as a convenience to you. If you access any third-party sites, information, content, materials, products, or services from the Services or share your User Content on or through any third-party website or service, you do so at your own risk, and you understand that these Terms of Use and the Optality Privacy Statement (available at this link: Optality Privacy Statement) do not apply to your use of such third-party sites, information, content, materials, products, or services. You expressly relieve the Newmark Parties and their subcontractors and Suppliers from any and all liability arising from your use of any third-party sites, information, content materials, products, or services. Additionally, your dealings with or participation in promotions of advertisers found on the Services, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You agree that neither the Newmark Parties nor any of their subcontractors or Suppliers shall be responsible for any loss or damage of any sort relating to your dealings with such advertisers.

INDEMNITY

You agree, at your own expense, to indemnify, defend and hold harmless Newmark Parties and their subcontractors and Suppliers, from and against any and all claims, judgments, causes of action, actions, proceedings, obligations, deficiencies, penalties, losses, liabilities, damages, costs, interest and expenses (including reasonable legal and other professional fees and costs) directly or indirectly arising out of or related to your access to and/or use of the Services and/or the Content, or, in the event that you are provided with User Codes, any access to and/or use of the Services and/or the Content under such User Codes, including, but not limited to: (i) a claim that any use of the Services and/or the Content by you (whether under the User Codes or otherwise) infringes any privacy, intellectual property or other proprietary rights of any third party, is libelous or defamatory, or otherwise results in injury or damage to any third party; (ii) any deletions, additions, insertions or alterations to, or any unauthorized use of, the Services and/or the Content by you (whether under the User Codes or otherwise); (iii) any misrepresentation or breach of representation or warranty made by you contained herein; (iv) any breach of any covenant or agreement to be performed by you hereunder; (v) your violation of any third-party right, including any right of privacy or intellectual property right; or (vi) your violation of any applicable law, rule, or regulation.

SERVICE LOCATION

The Services are controlled and operated by Upflex from facilities in the United States. Newmark makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws, rules, and regulations, including export and import regulations. You may not use the Services if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government.

SECURITY

We maintain administrative, technical, and physical safeguards that are designed to protect against loss, misuse, unauthorized access, disclosure, alteration or destruction of the information we receive from Upflex through the Services. By using the Services, you acknowledge and accept that we cannot guarantee the security of your information transmitted to, through, or on the Services and that any such transmission is at your own risk. If you have any questions about the security of your information, you can contact us as [email protected]. Please see the Upflex Data Processing Agreement (available at this link: Upflex Data Processing Agreement) and applicable Terms of Use (available at this link: Terms of Service) for more information on the availability and accessibility of Optality and the Services.

COMPLIANCE WITH LAW

You agree to comply with (i) all applicable local, state, national and foreign laws, rules and regulations in connection with your access to and/or use of the Services and the Content, including those related to data privacy, copyright, export control and the transmission of technical or personal data, and (ii) any additional requirements of Newmark as may be communicated from time to time. You acknowledge and agree that the Services, or a portion thereof, may be subject to United States export and re-export controls, including the Export Administration Act and Regulations, the Foreign Assets Control Regulations, and other controls administered by the United States Department of Commerce and the United States Department of State, and use or access, including export, re-export and/or making available contrary to U.S. laws, rules and/or regulations is prohibited. You agree not to directly or indirectly (a) export, import or transmit the Services to any country, end user or for any access or use that is prohibited by any applicable U.S. law, rule or regulation (including those counties embargoed from time to time by the U.S. government or the United Nations) and (b) export, import, transmit, access or use the applicable Services contrary to the laws, rules or regulations of any other governmental entity that has jurisdiction over such export, import, transmission, access or use. You represent and warrant that neither the United States Bureau of Industry or Export Administration nor any other governmental agency has issued sanctions against, or otherwise suspended, revoked or denied export privileges of, you and/or any other person who accesses or uses the Services through your account or under a password.

COMMUNICATIONS

Newmark may provide notifications, whether such notifications are required by law, rule or regulation or are for marketing or other business-related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on the Services, as determined by Newmark in its sole discretion. Newmark reserves the right to determine the form and means of providing notifications to its Users, provided that you may opt out of certain means of notification as described below. 

By providing Newmark your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, rule or regulation in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Services and special offers. If you do not want to receive such email messages, you may opt out or change your preferences by emailing us at this email: [email protected] or simply click the “unsubscribe link” provided at the bottom of the email communication. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers. Note that you cannot unsubscribe from certain services-related email communications (e.g., account verification, confirmations of transactions, technical or legal notices). Newmark is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us.

Upflex may also send you certain email and/or text service-related communications (e.g., account verification, confirmations of transactions, technical or legal notices). Please see the Upflex Data Processing Agreement (available at this link: Upflex Data Processing Agreement) for more information about such communications.

COPYRIGHT POLICY

If you are a copyright owner or an agent thereof and believe that any materials accessible on or from the Services infringe your copyright, please see Upflex’s Copyright Policy described in the Optality Accpetable Use Policy (available at this link: Optality Acceptable Use Policy) for further information on how to remove the allegedly infringing material. 

GOVERNING LAW

The terms of these Terms of Use shall be governed by, and construed in accordance with, the laws of the State of New York applicable to contracts made and to be fully performed in such State without reference to principles of conflict of laws, and any action brought in relation to these Terms of Use shall be brought in a Federal or State court in New York County, New York State. You hereby consent to personal jurisdiction in any applicable court for purposes of any such litigation and hereby waive any claim or defense that such forum is not convenient or proper. You hereby consent to service of process by any means authorized by New York law (other than by publication). You hereby waive any right to trial by jury with respect to any dispute, suit, action or proceeding arising out of or relating to these Terms of Use.

Many disputes can be resolved without resorting to litigation. Notwithstanding the foregoing, Newmark shall also have the option of bringing any dispute, difference or controversy arising out of these Terms of Use or the relationship between you and Newmark before an arbitration panel in New York, New York. Such arbitration shall be administered by the American Arbitration Association in accordance with its International Arbitration Rules, including the Optional Rules for Emergency Measures of Protection.  The Arbitral Tribunal’s authority under Article 37 of the International Centre for Dispute Resolution (“ICDR”) Rules shall include the ability to order you to refrain from breaching provisions of these Terms of Use. If Newmark chooses to arbitrate any dispute, difference or controversy, (i) the language of the proceedings shall be the English language, (ii) you and Newmark agree to be bound by the results of such arbitration, (ii) judgment upon the award rendered in arbitration may be entered in any court of competent jurisdiction, or application may be made to such court for a judicial acceptance of the award and an order of enforcement, (iv) Newmark will provide you with written notice of its choice to arbitrate, (v) all testimony shall be transcribed, (vi) the award of any arbitration panel shall be accompanied by findings of fact and a statement of reasons for the decision, and (vii) the arbitration panel hearing such dispute will be made up of three (3) arbitrators, each of whom will have a minimum of five (5) years’ experience in arbitrating disputes similar to the dispute between the you and Newmark. You and Newmark shall each select one person to act as arbitrator, and the two so-selected arbitrators shall select the third arbitrator. If the selected arbitrators are unable or fail to agree upon the third arbitrator, the third arbitrator shall be selected by the ICDR. Neither party shall be dispensed from performing its obligations under these Terms of Use because an arbitral proceeding has been initiated. Notwithstanding the foregoing or anything set forth in these Terms of Use: (1) nothing contained in this Section shall prohibit Newmark from seeking equitable relief without resorting to the dispute resolution or arbitration process, in each case, including under such circumstances as Newmark reasonably believes may compromise its interests under these Terms of Use or its property absent an immediate judicial determination; and (2) without limiting the foregoing and in addition thereto, in the event of a breach or threatened breach by you of any of the provisions of these Terms of Use, Newmark shall be, in addition to any other remedies available to it under law, entitled to seek and obtain all equitable remedies including an injunction restraining you from the performance of acts which constitute a breach of these Terms of Use, and you agree not to raise adequacy of legal remedies as a defense thereof.

MISCELLANEOUS

The terms of these Terms of Use represent the complete and exclusive statement of the agreement and understanding between you and Newmark regarding your rights to access and/or use the Services and the Content, and supersede representations (whether written or oral), regarding such subject matter. Except as provided in these Terms of Use, no waiver, modification or amendment of any provision of these Terms of Use will be effective against Newmark unless the same is in writing and signed by one of Newmark’s executive officers. Should any term or provision of these Terms of Use be deemed or held to be invalid or unenforceable, the remaining terms and provisions will continue in full force and effect. Newmark’s failure to insist at any time upon strict compliance with any term of these Terms of Use, or any delay or failure on Newmark’s part to exercise any power or right given to Newmark in these Terms of Use, or a continued course of such conduct on Newmark’s part will at no time operate as a waiver of such power or right, nor will any single or partial exercise preclude any other future exercise. All rights and remedies given to Newmark in these Terms of Use and other terms and conditions that are subject to these Terms of Use are cumulative and not exclusive of any other rights or remedies which Newmark otherwise has at law or equity. These Terms of Use will be binding upon you and your executors, heirs, successors and assigns. The term “affiliate” as used in these Terms of Use shall mean “affiliate existing from time to time”. You may not assign or delegate rights, duties or obligations under these Terms of Use without Newmark’s prior written consent. Without limiting anything else in these Terms of Use and in addition thereto, you expressly absolve and release any and all of the Newmark Parties and their subcontractors and Suppliers from any claim of harm resulting from a cause beyond Newmark’s control, including failure of electronic or mechanical equipment or communication lines, telephone or other interconnect problems, computer viruses, cyber-attacks, unauthorized access, theft, operator errors, pandemics, severe weather, earthquakes, or natural disasters, strikes, or other labor problems, wars, terrorism, or governmental restrictions. No joint venture, partnership, employment, or agency exists between you and Newmark as a result of these Terms of Use or your utilization of the Services. You hereby agree that this Agreement shall inure to the benefit of and be enforceable by Upflex, Inc. as a third-party beneficiary, and their respective successors and assigns.

IMPORTANT LEGAL INFORMATION

Without limiting anything in these Terms of Use and in addition thereto:

Newmark does not intend the Content to be distributed to, or used by, any person or entity in any jurisdiction or country where such distribution or use would be contrary to law, rule or regulation or which would subject Newmark to any registration requirement within such jurisdiction or country. Neither the information, nor any opinion contained in the Services and/or Content constitutes any solicitation, offer or acceptance by Newmark with respect to any transaction or any other matter, including to buy or sell any securities, futures, options or other financial instruments or provide any investment advice or service.

Some of the Content, products, and services available through the Services may include materials that belong to third parties. You acknowledge that none of the Newmark Parties will assume any responsibility for such Content, products or services.

Although some of the Content, information or data made available to you on or through the Services is obtained and/or compiled from sources Newmark believes to be reliable, Newmark cannot and does not guarantee the accuracy, validity, timeliness or completeness of any such content, information or data made available to you on the Services for any particular purpose. Neither the Newmark Parties nor any of their subcontractors or Suppliers will be liable or have any responsibility of any kind for any loss or damage that you incur in the event of any failure or interruption of the Services, or resulting from the act or omission of any other party involved in making the Services or the Content available to you, or from any other cause relating to your access to, or inability to access, or use of, or inability to use the Services or the Content, whether or not the circumstances giving rise to such cause may have been within the control of the Newmark Parties or any of their subcontractors or Suppliers.

None of the Newmark Parties provide, are responsible for, have any control over, or endorse or guarantee the existence, quality, suitability, legality, accuracy or reliability of any property listing information or any projections, opinions, assumptions or estimates that may be contained within the Services and/or the Content. You and your tax and legal advisors should conduct your own investigation of any property that may be listed on or through the Services and/or the Content and any contemplated transaction concerning any property that may be listed on or though Services and/or the Content. 

CONTACT

Our postal address is as follows:

Attn: Contract Management

Newmark & Company Real Estate, Inc.

110 East 59th Street

New York, NY 10022

Please contact us at this email: [email protected] with any questions, complaints, or claims with respect to the Services or these Terms of Use.