Broker Terms Agreement
Subject to the terms and conditions provided herein (this “Agreement”), Convene will compensate eligible Brokers for each qualified referral that results in the execution of a WorkPlace Membership Agreement. Acceptance of the terms of this Agreement by you (“you” or “Broker”) is required in order for you to be eligible to receive the Broker Fees.
1. Broker Eligibility. In order to be eligible to receive the Broker Fees, the following conditions
shall be satisfied:
a. the Broker shall electronically agree to the terms and conditions hereof via clickthrough agreement at https://convene.com/refer/ under “Refer Now” button, Docusign or submitting a scanned version of the signed agreement to us by email;
b. the Broker shall perform any services contemplated hereunder in a professional manner and in compliance with all applicable laws, obligations, rules, and regulations;
c. the Referred Party shall not be an affiliate of the Broker; and
d. all representations and warranties in Section 4 are true and correct in all respects.
2. Submission Process.
a. The Broker may introduce a Referred Party to Convene either by filling out a Submission Form at https://convene.com/refer/, submitting a request via an online platform approved by Convene, or by sending it directly to the primary contact at Convene, in each case specifying (i) the Broker Information (name, title, company, work email), (ii) name of the Referred Party, (iii) number of desks, (iv) city and Location, (v) desired move-in date, or otherwise as may be provided by Convene, for each such introduced party and for each Location (each, a “Submission”). Failure to complete all fields in the Submission Form or otherwise submit all required information shall cause such Submission to be invalid, and the Broker shall not be entitled to any Broker Fees associated therewith.
b. The Broker shall make a separate Submission for each Referred Party and for every Location, provided that one Submission may list several Locations. The Broker will not receive credit for any WorkPlace Membership Agreement entered into by a Referred Party without the prior Submission, unless otherwise provided in this Agreement.
c. There shall be only one Submission on behalf of each Referred Party in a given Location. In the event there is more than one Submission for the same Location, Convene will confirm with the authorized representative of the Referred Party which broker is Actively Representing the Referred Party and is entitled to receive the Broker Fees.
d. If a Referred Party has already been introduced to Convene by a different broker in the city that the Broker has specified in the Submission, the Broker will be eligible for the Broker Fees only if the Referred Party confirms that it is Actively Represented by the Broker.
e. Convene will assume that you do not represent the Referred Party in cities not specified by you in your Submission, and you are not eligible to earn any Broker Fees in any city in which you cannot prove Active Representation of the Referred Party, regardless of whether such city is specified in your Submission.
3. Qualified Referrals. The Broker will be entitled to receive the Broker Fees for a Submission made in accordance with Section 2 that results in the Referred Party entering into a WorkPlace Membership Agreement with Convene for the Location specified in the Submission (the “Qualified Referral”), subject to the following conditions:
a. the Submission shall be for a WorkSuite Memberships or at least 10 Community Memberships for a minimum term of 3 months entered by the same Referred Party;
b. the Broker shall be Actively Representing the Referred Party in connection with the Submission.
c. If the Referred Party notifies Convene that the Broker was not authorized to make the Submission on its behalf, such Submission shall not be a Qualified Referral, and no Broker Fees shall be due to the Broker. If the Referred Party informs that it is no longer interested in a WorkPlace Membership for a particular Location(s) specified in the Submission, such referral shall not be a Qualified Referral, and no Broker Fees shall be due to the Broker; unless such Referred Party executes a WorkPlace Membership Agreement at a later date with the direct and active representation of the Broker. At any time after receipt of the Submission, Convene may contact the Referred Party to confirm receipt of the Submission, unless otherwise instructed by the Broker.
4. Broker Representations and Warranties. By accepting the terms and conditions hereof, the Broker hereby represents and warrants to Convene that, as of the date hereof and as of each date of Active Representation:
a. the Broker or the entity with which the Broker is associated is duly licensed as a real estate broker under the laws of the State or Commonwealth of the Location for which the Broker makes the Submission;
b. the Referred Party has engaged the Broker as the Referred Party’s broker;
d. if applicable, the Broker is authorized to act on behalf of the brokerage firm;
e. to the best of the Broker’s knowledge, no other broker has made a submission for the relevant Location on behalf of the Referred Party (other than a party with whom the Broker has established a co-brokerage relationship);
f. the Broker is authorized to enter into and perform under the terms of this Agreement; and
g. the Broker has made no representation, guarantee or warranty concerning Convene, any Convene products or services, or any of the terms or conditions of the WorkPlace Membership Agreement, except as expressly authorized in writing by us.
a. The Broker is entitled to receive the Broker Fees in the amount specified in the Broker Fees Schedule for each Qualified Referral, subject to the terms and conditions hereof.
b. As set forth in the Broker Fees Schedule, the Broker Fees payable to Broker is calculated as a percentage of the WorkPlace Value.
c. The Broker Fees shall be payable for the initial term of the WorkPlace Membership Agreement for a Qualified Referral and the first Renewal and/or the first Expansion thereof (if any). Thereafter the payment of the Broker Fees shall terminate, and no further amounts shall be due to the Broker from Convene for such Qualified Referral.
d. A transaction is a “New Business” if the Referred Party enters into the WorkPlace Membership Agreement in the city where it has not previously entered into a WorkPlace Membership Agreement. The New Business deals are not eligible for the Broker Fees if the commitment term is less than three (3) months.
e. A transaction is a “Renewal” if the Referred Party, which has an existing WorkPlace Membership Agreement for a WorkSuite, enters into an agreement with Convene prior to expiration of the existing WorkPlace Membership Agreement (i) for an additional commitment term and (ii) pertaining to the same WorkSuite or one of the same value as set forth in the initial WorkPlace Membership Agreement; provided, for the avoidance of doubt, that no Broker Fees apply to a renewal of the Community Memberships.
f. A transaction is an “Expansion” if the Referred Entity, which has an existing WorkPlace Agreement, enters into a new WorkPlace Membership Agreement or an Amendment to the existing WorkPlace Membership Agreement with Convene for an additional or larger Work Suite(s), as a result increasing the total capacity occupied by the Referred Party by at least 30% or increase of the Community Memberships by 30% at the same Location or at a different Location in the same city. The Broker Fees for the Expansion are calculated on the difference between (i) the total WorkPlace Value minus (ii) the WorkPlace Value pursuant to the original WorkPlace Membership Agreement.
If the Referred Party enters into a new or an Amendment to the existing WorkPlace Membership Agreement with respect to the Expansion prior to expiration of the original WorkPlace Membership Agreement, the Broker Fees will be calculated (i) at the New Business rate for the WorkPlace Value under the original WorkPlace Membership Agreement through the initial term thereof and at the Renewal rate through the expiration of the first Renewal term, and (ii) at the Expansion rate for the Expansion Value through the initial Expansion term or thirty six (36) months, whichever is shorter.
In order to be eligible for the Broker Fees for any Expansions, the Broker must demonstrate Active Representation of the Referred Party in connection with such Expansion and that no other broker, individual or other entity is claiming Broker Fees for the same Expansion.
g. A transaction is a “Transfer” if the Referred Party which has an existing WorkPlace Membership Agreement moves from one Convene Location to another. In the event that the Referred Party transfers to a new Location, the Broker Fees due will be based on the Referred Party’s initial move-in date, not the date that the entity transfers to the new location. There shall be no more than one (1) month gap between the Referred Party’s move-out date and the date of the Referred Party’s move-in back to Convene in order for the Broker to continue to be eligible for Broker Fees in connection with the Transfer under the Initial Referral.
h. In the event that a Referred Party moves out and later moves back into Convene, including transfers where the time period between move-out and move-in is greater than 1 month, you will not be entitled to Broker Fees unless (a) you can demonstrate Active Representation of the Referred Party in moving back in to Convene, and (b) at least three (3) months from the date of the entity’s initial move-out has elapsed. In the event that a Referred Party moves back in within three (3) months of its initial move-out date, Convene will determine eligibility for the Broker Fees in its sole discretion based on an analysis of the circumstances. The Broker Fees for such returning Referred Party and such Broker Fees shall be treated as a Renewal, Expansion, or Transfer, as applicable. The policy for returning members applies regardless of whether the member returns to the same or a different Location.
a. You shall provide us with a valid bank account, wire transfer instructions and contact details associated with the invoice payment in order to be eligible for the Broker Fees. Failure to provide the up-to-date bank account information on the invoice, may result in the delay or forfeiture of the Broker Fees. Convene shall not be responsible for any payments that were sent to a wrong account due to the Broker’s failure to timely notify Convene.
b. Total Broker Fees due for the first 12 months of the New Business or Expansion term shall be paid within thirty (30) days of the later of: (i) Convene receiving the retainer amount from the Referred Party pursuant to the executed WorkPlace Membership Agreement or (ii) the Broker submitting an invoice, provided that Convene shall have no obligation to make any such payment to the Broker if the Referred Party has failed to make all required payments to Convene pursuant to the WorkPlace Membership Agreement. Total Broker Fees due for the remainder of the New Business or Expansion term shall be paid within thirty (30) days of the first day of the 13th month of the commitment term, provided that Convene shall have no obligation to make any such payment to the Broker if the Referred Party has failed to make all required payments to Convene as of the date such payment is due.
The Broker Fees for the Renewal are paid within the first week of the Renewal term, provided that Convene shall have no obligation to make any such payment to the Broker if the Referred Party has failed to make all required payments to Convene as of the date such payment is due.
All payments shall be made by ACH deposit or wire transfer.
c. Payment of the Broker Fees is subject to the following conditions:
(i) The Referred Party must enter into a WorkPlace Membership Agreement within three (3) months of the Referral Date; provided that said three month period shall be extended for so long as the Referred Party and Convene are engaged in meaningful negotiations regarding the terms of the WorkPlace Membership Agreement;
(ii) With respect to the New Business, the Referred Party must not have contacted Convene regarding any WorkPlace offering for the Location where such Referred Party enters into the WorkPlace Membership Agreement; and within the ninety (90) day period prior to the Referral Date, the Referred Party must not have attended a Convene event at the Location where the Referred Party enters into a WorkPlace Membership Agreement.
(iii) All representations and warranties of the Broker remain true and correct in all respects.
d. All disputes regarding the Broker Fees or any other payment amounts must be submitted in writing after receipt of the confirmation email or another written notification to the Broker of the Broker Fees, whichever is earlier. Failure to respond within such time period shall act as a waiver of any dispute related to the amounts described therein.
e. Convene ’s obligation for payment of the Broker Fees shall immediately terminate if the Referred Party is in default of any of its obligations under the WorkPlace Membership Agreement and if Convene notified the Referred Party of the default and the default and such default is not cured or if the WorkPlace Membership Agreement is terminated. Upon such default or termination, Convene shall have no obligation to make any other payment to the Broker with respect to such Referred Party. If the payment of the Broker Fees is terminated in accordance herewith, Convene shall provide prompt notice to the Broker of the same.
f. While the amount of the Broker Fees for membership agreements with contractual early termination options is based on the total committed WorkPlace Value regardless of any early termination option, if a membership agreement contains a contractual early termination option, any initial payments will include only eligible Fees up to the first contractual termination date. Subsequent payments will include eligible Broker Fees up to the next contractual termination date. Notwithstanding anything contained herein, if a Referred Entity exercises an early termination option, the Broker shall not be eligible for Fees
that would have otherwise accrued after such termination.
g. Except in case of the early termination pursuant to the above paragraph, If Convene has paid to the Broker a portion of the Broker Fees in advance or upfront, and the WorkPlace Membership Agreement is terminated prior to the completion of the period to which such upfront payment was to be applied, or in the event of any other overpayment, the Broker shall promptly repay to Convene the excess amount paid by Convene. If the Broker fails to promptly return such funds, Convene may offset any amounts owed to Convene from future payments to such Broker, and such Broker may be suspended or disqualified from the Broker Referral Program, in Convener’s sole discretion. The foregoing shall be in addition to all rights and remedies Convene may seek in equity or law. Overpayments may result from, but are not limited to, the following: termination of Convene membership agreements, reduction in office space or number of dedicated desks, calculation errors, fraudulent activity. If the overpayment of the Broker Fees is due to the early termination of the WorkPlace Membership Agreement, and you do not promptly return such funds to Convene, you will be subject to penalty. For example, if Convene has paid to the Broker an upfront Broker Fees of nine (9) months in advance, and the Referred Party’s WorkPlace Membership Agreement is terminated after six (6) months, the Broker shall repay to Convene three (3) months of the Broker Fee. Broker Fees shall be made to the brokerage only. Co-brokerage arrangements or payments are to be facilitated separately amongst the brokerage parties and Convene shall have no obligation of payment to any broker other than the Broker for a Qualified Referral.
h. If a Broker who successfully introduced a Referred Party to Convene leaves their brokerage and still has Broker Fees due, these payments may continue to be processed to the brokerage firm unless such Broker notifies or instructs Convene otherwise. Convene is not responsible for any funds misdirected by Brokers or brokerage firms. Convene pays individual Brokers as instructed by such Broker and takes no liability in the instance where a Broker improperly diverts funds from a brokerage.
7. Disqualifications. The Broker may be disqualified from the Broker Referral Program for
reasons including but not limited to:
• Submitting false leads;
• Providing incorrect information;
• Misrepresenting Broker’s licensing or eligibility status;
• Misrepresenting Broker’s relationship with the Referred Party or any other party;
• Referring an affiliate or a party with which the Broker shares an interest or parent;
• Misusing the Convene member network to solicit clients;
• Performing any criminal or fraudulent activities;
• Failing to comply with the terms of this Agreement; and
• Breach of the Broker representations and warranties herein.
All disqualifications are determined in the sole discretion of Convene. Upon disqualification, Broker shall immediately repay any prepaid Broker Fees to Convene.
8. Additional Agreements.
a. Warranty Disclaimer. CONVENE MAKES NO WARRANTIES TO BROKER OR ANY THIRD PARTY, EXPRESS OR IMPLIED, AND HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING OUT OF USAGE OF TRADE, COURSE OF DEALING AND COURSE OF PERFORMANCE.
b. Indemnity. You will defend, indemnify, and hold harmless the Convene Parties from and against any claim, cause of action, demand, suit, proceeding, damages, liabilities, loss, or costs, including without limitation reasonable attorney fees made or brought against the
Convene Parties arising out of (a) your participation in this Program, (b) any breaches of your representation, warranties, or obligations hereunder or (c) the gross negligence or willful misconduct of you or your employees, representatives or agents.
c. Reservation of Rights. Convene reserves the right in its sole reasonable discretion to make any determination pursuant to the terms hereof, including, without limitation, the determination of your eligibility, a Submission, a Qualified Referral, and the amount and payment of Broker Fees. If Convene determines, in its sole reasonable discretion, that you have violated the terms of this Agreement, you will not be eligible for the Broker Fees. By making Submissions or Actively Representing a Referred Party, you will not be deemed to be an employee of Convene. You will not act as an agent of Convene nor are you entitled to make any commitments on behalf of Convene. Convene reserves the right to amend this Agreement at any time without prior notice.
d. Termination. Convene may, at its option, terminate this Agreement upon 30 days’ written notice to the other party for any reason or for no reason whatsoever. This Agreement may also be terminated by Convene upon 15 days’ written notice if the Broker breaches this Agreement in any material respect and the Broker fails to cure such breach within such 15- day period. Upon any termination or expiration of this Agreement, (i) the Broker shall immediately cease all promotion of Convene and Convener’s products and services and shall immediately return to Convene, or at the option of Convene, destroy all materials provided by Convene hereunder; (ii) Convene may market, sell or provide products or services to any third party, without obligation to pay Broker any Broker Fees; and (iii) except in the event of a termination by Convene for Broker’s breach, Convene will pay applicable Broker Fees in accordance with Schedule A for membership agreements which were executed prior to termination or expiration of this Agreement (to the extent the applicable Referred Party continues to pay Convene the membership fees). Notwithstanding any termination or expiration of this Agreement, the following Sections, and any terms that by their nature would be expected to survive, shall survive and remain in effect: Payment (to the extent any payment obligations remain outstanding), and Additional Agreements. Any termination or expiration of this Agreement shall be without prejudice to any other rights or remedies available under this Agreement or at law.
e. Transfer of Personal Information. You hereby consent that:
(i) if you are US Based, we may also transfer the personal information collected by us and make it available to our personnel, advisors, professionals, subcontractors, independent consultants, external third party services providers, and our affiliates for the foregoing purposes. Some of these transferees may not be located in your country, and therefore your information may be transferred to countries that may or may not guarantee a level of privacy and data protection that is equivalent to the level of privacy and data protection set by the laws in your country;
(ii) if you are Non-US Based, we may also transfer the personal information collected by us and make it available to our personnel, advisors, professionals, subcontractors, independent consultants, external third party services providers and our affiliates for the foregoing purposes; provided that Convene will not disclose such information to a competitor of the Broker. We may transfer, and you consent to such transfer, of your personal data to members of our group based in the United States.
f. Exclusive Governing Law (US). The terms of this Agreement and the transactions contemplated hereby shall be exclusively governed by and in accordance with the law of the State of New York, U.S.A. and the federal laws, without regard to the conflicts or choice of laws
g. Exclusive Governing Law (Non-US). The terms of this Agreement and the transactions contemplated hereby shall be exclusively governed by and in accordance with the law of England and Wales, without regard to the conflicts or choice of laws provisions thereof.
h. Exclusive Venue. Except that either party may seek equitable or similar relief from any court of competent jurisdiction (and without the need for that party to post any security or bond in seeking such equitable or similar relief), any dispute, controversy or claim arising out of or in relation to this Agreement, or at law, or the breach, termination or invalidity of this Agreement, that cannot be settled amicably by agreement of the parties to this Agreement shall be finally settled exclusively in accordance with the arbitration rules of JAMS (f/k/a Judicial Arbitration and Mediation Services, Inc.) then in force, by one or more arbitrators appointed in accordance with said rules. The place of arbitration shall be the Borough of Manhattan, New York, New York, U.S.A. The parties hereby waive their right to trial by jury to the fullest extent permitted by law.
i. Proceedings; Judgment. The proceedings shall be confidential and in English. The award rendered shall be final and binding on both parties and non-appealable. Judgment on the award may be entered in any court of competent jurisdiction. In any action, suit or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover, in addition to any other relief awarded, the prevailing party’s reasonable attorneys’ fees and other fees, costs and expenses of every kind in connection with the action, suit or proceeding, the collection of any award or the enforcement of any order, as determined by the arbitrator(s) or court, as applicable. This Agreement shall be interpreted and construed in the English language, which is the language of the official text of this Agreement.
j. Compliance with Law. The Broker agrees to comply with all applicable laws, regulations, codes, ordinances, and administrative orders governing its participation in any transaction contemplated by this Agreement. The Broker has or will make all disclosures required to be made by the Broker in accordance with law. Convene and the Broker acknowledge that it is illegal to refuse to display, refuse to lease to or from, or refuse to sell to any person based on one’s membership in a protected class, e.g.: race, color, religion, national origin, gender, sexual orientation, ancestry, age, marital status, physical or mental handicap, familial status, or any other class protected by applicable laws.
k. Limitation of Liability. CONVENE WILL NOT BE LIABLE OR OBLIGATED WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR OTHERWISE RELATED TO THIS PROGRAM OR UNDER ANY CONTRACT, TORT, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES WHATSOEVER, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, RELIANCE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, DATA, OR USE, AND CONVENE’S LIABILITY SHALL NOT EXCEED THE BROKER FEES PAYABLE BY CONVENE TO BROKER FOR AN APPLICABLE REFERRAL DURING THE 6 MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.
l. Convene Trademark and Materials. Broker shall not distribute any materials about Convene or its products or services unless and until such materials have been approved in writing by Convene, and once approved, may only be used in the form and manner approved by Convene.
Subject to the terms and conditions of this Agreement, Convene hereby grants Broker a revocable, non-exclusive, non-transferable, royalty-free license during participation in the Broker Referral Program to use Convener’s logos or trademarks (“Convene Marks”) solely (a) for the purpose of promoting, advertising, and marketing Convener’s products and services
in accordance with this Agreement and (b) in the forms authorized by Convene and in compliance with Convener’s trademark guidelines as provided by Convene as may be updated by Convene from time to time. All uses of Convener’s trademarks and logos shall be subject to Convener’s prior written approval in each instance. Broker may not use the Convene Marks in any way that disparages or tarnishes Convene or its business. Convene may inspect any materials or content that contain any Convene Marks, and upon the request of Convene, Broker shall immediately remove all such materials that are unacceptable to Convene (in Convener’s sole discretion) or modify all such materials to become acceptable to Convene. Nothing contained in this Agreement shall be construed to vest in Broker any right, title, or interest in or to the Convene Marks or in the goodwill now or hereafter associated therewith, and all goodwill generated from Broker’s use of the Convene Marks shall inure to the sole and exclusive benefit of Convene. Except for the limited rights and licenses expressly granted hereunder, no other license is granted and no other use is permitted. Broker will not make any public announcements relating to this Program or the terms hereof without the prior written consent of Convene.
m. Assignment. This Agreement and the rights and obligations herein may not be assigned or transferred, in whole or in part, by the Broker without the prior written consent of Convene. Any assignment in violation of this provision is void and without effect. Convene may freely transfer this Agreement to any third party without Broker’s consent. In the case of any permitted assignment or transfer of or under this Agreement, this Agreement or the relevant provisions shall be binding upon, and inure to the benefit of, the successors and permitted assigns of the parties hereto.
n. Confidentiality. For purposes of this Agreement, “Confidential Information” shall mean all commercial, marketing, technical, operational, financial, staff, management, and other non-public information, data, and know-how regarding Convene or any of its affiliates, and any documents, notes, memoranda or other information prepared by or on behalf of Convene or any Convene Parties, whether in writing or in any other tangible form, which may be supplied to or otherwise come into Broker’s possession, which is or would reasonably be considered confidential in nature, or is deemed confidential by Convene or any of the Convene Parties. Confidential Information shall not include information which, (i) is known to the general public through no act or omission of Broker, (ii) is within the legitimate possession of Broker without obligation of confidentiality prior to disclosure, (iii) is lawfully received by Broker from a third party having rights therein without notice of any confidentiality obligations or restrictions against its further disclosure, provided that Broker identifies such third party upon Convener’s request, (iv) is independently developed by Broker, or (v) is disclosed by the Broker with Convener’s prior written consent. Confidential Information specifically includes all information related to a Referred Party’s agreement(s) with Convene, including but not limited to, the actual or proposed pricing and other terms thereof. The Broker shall use the Confidential Information only in connection with this Agreement, unless otherwise authorized, instructed or agreed in writing by Convene. Broker shall use best efforts to disclose Confidential Information only to the Broker’s representatives, employees, agents, or Referred Parties who need to know such information in connection with this Agreement, and Broker shall inform each such representative, employee, agent, or Referred Party of these confidentiality. obligations and ensure that such parties abide by the confidentiality obligations set forth herein. Broker shall be solely responsible for any breach of these confidentiality obligations by any of its representatives, employees, agents, or Referred Parties. Broker shall treat all Confidential Information as strictly confidential, and will not, either directly or indirectly, use, communicate, or otherwise disseminate any Confidential Information to any person or entity for any purpose not permitted hereunder. Broker shall not produce or reproduce parts or components, in any form, incorporating Confidential Information, whether for itself or for a third party, for
purposes or uses other than those permitted hereunder or as otherwise expressly permitted by Convene in writing.
o. Notices. All notices and communications related to or in connection with this Agreement, including the Broker Fee, or otherwise addressing matters related to the relationship between the Broker and Convene shall be sent by confirmed email to the primary contact at Convene, in the case of Convene, or the email address Convene has on file, in the case of Broker be directed to the primary contact at Convene.
p. Miscellaneous. Broker shall comply with the U.S. Foreign Corrupt Practices Act and all applicable export laws, restrictions, and regulations of the U.S. Department of Commerce, and any other applicable U.S. and foreign agency or authority. Headings and captions used in this Agreement are for convenience only and are not to be used in the interpretation of this Agreement. If any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement otherwise remain in full force and effect and enforceable. This Agreement constitute the entire agreement between the parties relating to the subject matter hereof and supersede all proposals, letters of intent, memoranda of understanding, or discussions, whether written or oral, relating to the subject matter of this Agreement and all past dealing or industry customs. No provision of, right, or privilege under this Agreement shall be deemed waived unless such waiver is in writing and executed by both parties. No waiver by any party of any breach or default of any provision of this Agreement by the other party shall be effective as to any other breach or default, whether of the same or any other provision and whether occurring prior to, concurrent with, or subsequent to the date of such waiver. This Agreement may only be modified by an instrument in writing duly executed by both parties.
9. Defined Terms.
“Active Representation” means a relationship between a Client and a Broker where Broker is using diligent efforts and taking affirmative steps to assist such Client in procuring, negotiating, and executing or providing reasonable assistance in connection with, the existing WorkPlace Agreement with Convene, and the Referred Party is not subject to an exclusive arrangement with another broker with respect to the same Location(s). This definition shall apply to all variations of the term, including but not limited to, “Actively Representing” and “Actively Represents”.
“Additional WorkSuite Memberships” means the number of the memberships associated with a WorkPlace Membership Agreement over and above the Included Memberships, pre- committed for the same term. These Members have access to the WorkSuite.
“Broker Fees” means the amount payable by Convene to the Broker in accordance with the terms hereof and the Broker Fees Schedule.
“Broker Fees Schedule” is the schedule attached hereto as Schedule A and available online, and as the same may be amended from time to time by Convene in its sole discretion.
“Broker Referral Program” means the partnership program between the Broker and Convene pursuant to the terms of this Agreement;
“Commons” means the shared spaces available to Convene WorkSuite and Community members.
“Community Membership” means an individual membership for the Commons area, not associated with a WorkSuite.
“Convene” means Sentry Centers Holdings LLC d/b/a Convene.
“Convene Parties” means Convene and its landlords, affiliates, parents, and successors and each of its and their respective employees, assignees, officers, agents and directors.
“Included Memberships” means a number of the individual memberships included in the WorkSuite Price;
“Licensable Area” means the dedicated area inside a WorkSuite.
“Location” means a space that is available through Convene’s WorkPlace offerings at a given address or addresses.
“Referral Date” means the date upon which the Broker submits the Referral to Convene in accordance with the terms of this Agreement.
“Referred Party” means a party introduced to Convene by the Broker in accordance with the terms hereof for the potential entry by such party into a Workplace Membership Agreement.
“Submission Form” means the form available at https://convene.com/refer/ under “Refer Now” button.
“WorkPlace” means Convener’s flexible workplace offerings including WorkSuites, Commons, services and amenities.
“WorkPlace Membership” means that membership associated with a Referred Party, as detailed in such Referred Party’s WorkPlace Membership Agreement.
“WorkPlace Membership Agreement” means the Membership Agreement for (i) a WorkSuite and any additional WorkSuite Memberships or (ii) at least 10 Community Memberships for a minimum term of three months, entered into by the Referred Party and Convene.
“WorkSuite” means the licensable square footage of a single dedicated office space for exclusive use by the members, including the team space and the flex rooms.
“WorkPlace Fee” means the agreed price of (i) a WorkSuite and Included Memberships or the (ii) the Community Memberships, as applicable. The WorkPlace Fee does not include added design services, technology packages, service add-ons, set-up fees or service retainers.
“WorkPlace Value” means the total WorkPlace Fee and all Additional WorkSuite Memberships Fees, if any, payable by the Referred Party under the WorkPlace Membership Agreement, but excluding any free months, added services, technology packages, set up fees or service retainers, concessions, chargebacks, taxes, overage fees, penalties, late payment fees, other fees, or termination payments, as may be applicable.
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SCHEDULE A BROKER FEES SCHEDULE
DEAL BROKER FEE
New Business Months 1-12 10%
New Business Months 13-36* 5%
Expansion Months 1-36* 5%
*No Broker Fees are paid beyond 36 month. The Broker Fees are subject to change from time to time.
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