Terms and Conditions of Service – FOR USE WITH CUSTOMERS
PLEASE READ THESE LICENCE TERMS CAREFULLY.
Who We Are? We are Desana Network Limited, a private limited company incorporated in Scotland (registered number SC527495) with our registered office at 27 Ocean Drive, Edinburgh, EH6 6JL, trading as “Desana” (Desana, we, us or our).
What do we do? We provide an online booking platform (the Desana Platform) accessed through the internet by way of internet browser or mobile application allowing Operators to list and advertise Flexible Work Spaces that they make available, and to facilitate the booking by Customers and Users of such Flexible Work Spaces through the Desana Platform (Paid Services). Customers can pay Charges which permit their Users to access the Paid Services.
We also offer a version of the Desana Platform which allows Customers to manage their own Internal Work Spaces, and allows Users to book such Internal Work Spaces, free of charge. Access to these services shall be known as the Free Services. The terms of these Conditions shall apply equally to the Paid Services and the Free Services (together referred to as the Service) as the context requires or permits.
Customer: is you, a corporate entity or organisation named on the Proposal that entails payment of Charges to allow your Users to benefit from the Paid Services, or which permits you to list and manage Internal Work Spaces for booking by Users via the Free Services.
Operators: are the organisations using the Paid Services to provide and advertise the Flexible Work Spaces.
Users: are the individuals and employees, agents, contractors, or members of Customers using the Desana Platform to book Flexible Work Spaces, or Internal Work Spaces for, or in connection with, Customer’s (or Customer’s group’s) internal business purposes.
Other defined terms are set out in clause 12 below.
1. Basis of Contract
1.1 These Conditions apply to how you, as a Customer, pay Charges and how we provide the Service. These Conditions, along with the Proposal Document, shall form the basis of the Contract between Desana and Customer.
1.2 The Proposal Document provided by Desana to you is an offer to pay Charges to access the Paid Services and/or an offer to use the Free Services on the terms set out in the Proposal and these Conditions. You are deemed to have accepted this offer when you sign the Proposal Document. By signing the Proposal Document you agree to bound by these Conditions.
1.3 Unless otherwise stated, these Conditions apply to the Contract to the exclusion of any other terms that Customer seeks to impose or incorporate, or which are implied by trade, custom, practice, purchase order or course of dealing.
1.4 Desana reserves the right to modify these Conditions at any time in accordance with this provision. If we make changes to these Conditions, we will post the revised Conditions on the Desana Dashboard. We will also provide you with notice of the modifications by email at least thirty (30) days before the date they become effective. If you disagree with the revised Conditions, you may terminate the Contract with immediate effect and cease to use the Desana Platform and/or Desana Dashboard (or the Services available through them) or pay further Charges. We will inform you about your right to terminate the Contract in the notification email. If you do not terminate the Contract before the date the revised Conditions become effective, your continued access to or use of the Desana Platform or Desana Dashboard, or your continued payment of Charges will constitute acceptance of the revised Conditions.
1.5 Customers may pay Charges for access to the Paid Services in accordance with the terms of these Conditions. The applicable Charges currently consist of Credits (which are used to allocate hot desks amongst Users) and One Off Payments (which are payments for Users’ accessing third-party meeting rooms, office space and fixed desks (that are not based in Internal Work Spaces)).
1.6 The initial number of Credits to be provided to the Customer, and any other Charges, may be specified in the Proposal Document, but the Customer can make additional One Off Payments at any time through the Desana Platform. In the event that Customers wish to increase the number of Credits subscribed to each month then they shall contact Desana 10 Business Days in advance of a Renewal Period.
1.7 On or prior to commencement of the Contract, Customer shall provide Desana with a CSV list of Users to whom they wish to allow access to their Credits, in respect of the Paid Services, or otherwise to access the Free Services. Customer shall be required to manage any additions to, or removals from, their User base on an ongoing basis throughout the term of the Contract.
1.8 Credits will be valid for a period of 60 calendar days from the time of issue (the Validity Period).
2. Customer obligations
2.1 Customers shall co-operate fully with Desana in all matters relating to the payment of Charges, and use of the Services.
2.2 Customer agrees and undertakes to:
- ensure that any Users to whom they wish to access the Service shall have access to the Desana Platform;
- provide accurate and up to date information as to the User accounts to be linked to Customer's account;
- update Desana immediately in the event that any User accounts linked to Customer's account changes;
- carry out appropriate checks to verify the identity of any Users to whom they provide access to the Services; and
- comply with all relevant regulations and laws, including without limitation health and safety legislation.
2.3 Customer shall ensure and will be responsible for any act or omission of its Users when they are using the Service, any Flexible Work Space or any Internal Work Space.
2.4 Customer’s relationship with Desana is limited to being an independent, third-party contractor, and not an employee, agent, joint venturer or partner of Desana for any reason, and you act exclusively on your own behalf and for your own benefit, and not on behalf, or for the benefit, of Desana.
3. Desana’s Obligations
3.1 Desana shall supply the Service and the Credits in accordance with the Contract on an as is basis.
3.2 Desana shall link the relevant User accounts to Customer’s account (and/or Credits in the case of the Paid Services) to allow these to be used for the purpose of the Service.
4.1 Customer shall pay the Charges to Desana by direct debit (or such other means as Desana may indicate through the Desana Platform as accepted) in accordance with the terms set out in the Proposal Document and this clause 4.
4.2 If Desana does not receive payment for the Charges in accordance with clause 4.1 then Desana shall be entitled to terminate this Contract with immediate effect.
4.3 All amounts and fees stated or referred to in the Contract are exclusive of value added tax, or any other relevant local tax, which shall be added to the Supplier’s invoice(s) at the appropriate rate.
5. Intellectual property rights
5.1 All Intellectual Property Rights in or arising out of or in connection with the Service, Desana Platform and Desana Dashboard, other than the content posted by an Operator in a Listing, shall be owned by Desana.
5.2 Operators agree to not copy, modify, transmit, create any derivative works from, make use of, or reproduce in any way any Intellectual Property Rights accessible through the Service, Desana Platform, or Desana Dashboard.
6. Events outside of Desana’s control
6.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the Contract or the unavailability of the Desana Platform, Desana Dashboard, Service or the Credits that is caused by any act or event beyond our reasonable control (Event Outside Our Control).
6.2 If an Event Outside Our Control takes place that affects the performance of our obligations under the Contract:
- we will contact you as soon as reasonably possible to notify you; and
- our obligations under the Contract will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control. We will endeavour to allow you to subscribe to Credits after the Event Outside of Our Control has ended.
6.3 We cannot guarantee that the Desana Platform or the Desana Dashboard will be fault-free. If a fault occurs with the Desana Platform and/or the Desana Dashboard you should report it either via the Desana Dashboard, or to firstname.lastname@example.org, and we will attempt to correct the fault as soon as we reasonably can. Your access to the Desana Platform and/or the Desana Dashboard may be occasionally restricted to allow for repairs, maintenance or the introduction of new facilities or services. We will attempt to give you advance notice of this and to restore the Desana Platform and/or the Desana Dashboard as soon as we reasonably can. However, we will not be liable to you if for any reason the Desana Platform and/or the Desana Dashboard is unavailable at any time or for any period. Access to the Desana Platform and/or the Desana Dashboard may be suspended temporarily and without notice in the case of system failure, maintenance or repair or for reasons beyond our control. We may also need to modify or maintain the Desana Platform and/or the Desana Dashboard at any time.
7. Limitation of liability
7.1 Neither party shall be liable, whether in contract, delict (including negligence), tort, for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
- loss of profits;
- loss of sales or business;
- loss of agreements or contracts;
- loss of anticipated savings;
- loss of use or corruption of software, data or information;
- loss or damage to goodwill; and,
- any indirect or consequential loss.
7.2 Nothing in the Contract shall limit the liability for:
- death or personal injury caused by negligence;
- fraud or fraudulent misrepresentation;
- any other liability which cannot be limited by law.
7.3 Subject to clauses 7.1 and 7.2, our total aggregate liability to you shall not exceed a sum equal to the lesser of (a) Charges paid by you to us over the 12 months immediately prior to the relevant date of claim; or (b) £500,000 (five hundred thousand pounds GBP), however caused and whether based on breach of contract, breach of warranty, breach of statutory duty, or other theory of liability, even if reasonably forseeable.
7.4 Desana shall not be liable for the availability, condition, or suitability of Flexible Work Spaces or Internal Work Spaces, nor shall we be liable for the accuracy or contents of any Listing on the Desana Platform.
7.5 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 and any other laws are, to the fullest extent permitted by law, excluded from the Contract.
7.6 Desana shall not be liable for the acts or omissions of Users (or Operators in respect of Flexible Work Spaces) or their conduct when making use of the Desana Platform or any Flexible Work Space or Internal Work Space.
8.1 The Contract shall, unless otherwise terminated as provided in clause 9, commence on the Subscription Date and shall continue for the Initial Subscription Term (unless otherwise agreed between the parties in the Proposal Document) and, thereafter, the contract shall be automatically renewed for successive periods of 1 month (each a Renewal Period), unless:
- either party notifies the other party of termination, in writing, at least 10 days before the end of the Initial Subscription Term or any Renewal Period, in which case the Contract shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
- otherwise terminated in accordance with the provisions of these Conditions;
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
8.2 If Customer wishes to cease to avail of either the Free Services or the Paid Services, but to continue utilising the other (as the case may be) Customer may serve notice to Desana by the means and in accordance with the timeframes noted in clause 8.1. Upon termination of either the Free Services or the Paid Services, the other Service shall continue in accordance with all relevant terms of the Contract for the remaining Subscription Term.
9.1 Without affecting any other right or remedy available to it, Desana may terminate the Contract with immediate effect by giving written notice to Customer if:
- Customer fails to pay any amount due under the Contract on the due date for payment;
- Customer commits a material breach of any other term of the Contract or any applicable laws, regulations or third party rights, which breach is irremediable; or
- Desana believes in good faith that such action is reasonably necessary to protect the interests of Desana, its Users, Operators, other Customers, or third parties.
9.2 Notwithstanding clause 9.4, on termination of the Contract under clause 9.1(a), in respect of the Paid Services, Customer shall be entitled to make use of any remaining Credits and any affiliated User shall be entitled to make use of any prior booking made using Customer’s Credits, but on the expiry of the Validity Period of any outstanding Credits:
- Customer shall cease to have access to the Desana Platform and Desana Dashboard;
- Desana may destroy or otherwise dispose of any of Customer's data, including information about User accounts to be linked to Customer, in its possession; and
- any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced, but for the avoidance of doubt, shall no longer have any right to access, manage, or permit its Users to use, the Free Services.
9.3 Customer will not allow any third party, other than its employees, agents and/or members, to make use of its rights under the Contract.
9.4 In the event that Desana terminates this Contract under clauses 10.1(b) or 10.1©, Customer will cease to have access to the Desana Platform, Service or the Desana Dashboard, and any remaining Credits will be removed from their account without refund.
9.5 This clause 9 shall survive termination or expiry of the Contract.
10.1 For the purposes of this clause 10 the following terms shall have the following meanings:
Processing has the meaning given under the Data Protection Laws (and Process, Processed and Processes shall be construed accordingly).
Controller, Data Subject, Processor, Personal Data, Personal Data Breach and Supervisory Authority have the meanings given under the Data Protection Laws.
Data Protection Laws means all laws that relate to data protection, the use of information relating to individuals, and/or the information rights of individuals and all laws implementing them, in each case as may be replaced, extended or amended, including, without limitation, the General Data Protection Regulation (EU) 2016⁄679, the Data Protection Act 2018 and the Privacy and Electronic Communications (EC Directive) Regulations 2003.
10.2 The parties shall at all times comply with their obligations under Data Protection Laws, and neither party shall, by way of any act or omission, cause the other to breach its obligations under Data Protection Laws.
10.3 Insofar as Desana acts as a Processor on behalf of Customer, Desana (without prejudice to Desana’s separate responsibilities as a Controller) shall:
- only be entitled to Process Personal Data for the duration of the Contract unless otherwise expressly provided, in which case the Processing shall only last as long as is necessary under (and fully in compliance with) the Data Protection Laws (the **Duration**) and only to the extent necessary for the provision the Services and sale of Credits to Customer (the **Purpose**). The subject-matter of the Processing of the Personal Data is set out in this Contract (the **Subject-Matter**) and the nature and purpose of the Processing is the Purpose. The Data Subjects whose Personal Data Desana is entitled to Process are the Users of the Desana Platform (the **Categories of Data Subjects**), and the types of Personal Data which Desana may Process are those types of Personal Data as necessary for the provision of the Services and fulfilment of the terms of the Contract (the **Type of Personal Data**);
- taking into account the nature of the processing, implement appropriate technical and organisational measures to protect the Personal Data against unauthorised or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure;
- process Personal Data only under the terms of this Contract and on the documented instructions of Customer, except to the extent that any processing of Personal Data is required by applicable laws;
- notify Customer where Desana reasonably believes any documented instructions from Customer in respect of the processing of Personal Data infringe any Data Protection Laws or any other applicable laws;
- at Customer's expense, assist Customer in its compliance with its obligations under Data Protection Laws in respect of security of processing, carrying out data protection impact assessments (as defined in Data Protection Laws), remedial action to be taken in response to a Personal Data Breach (including notifying Personal Data Breaches to the Supervisory Authority and affected Data Subjects) and consulting with the Supervisory Authority regarding high risk Processing, in each case insofar as it is able taking into account the nature of the processing and the information available to Desana;
- ensure that its personnel who are authorised to process the Personal Data have committed themselves to confidentiality;
- not appoint a sub-processor without giving prior written notice of such appointment of no less than 30 Business Days to Customer;
- not transfer Personal Data to a country or territory outside the United Kingdom and European Economic Area except with the prior written consent of Customer or on the instructions of Customer;
- notify Customer without undue delay if it receives any: (i) request from a Data Subject to access that Data Subject’s Personal Data; (ii) complaint or request relating to the Data Protection Laws and / or (iii) correspondence from a Supervisory Authority;
- notify Customer without undue delay in the event it becomes aware of any Personal Data Breach;
- unless otherwise required by Data Protection Laws, and without prejudice to Desana's separate rights as a Controller, Desana shall return or delete, at Customer's sole discretion, all Personal Data upon the termination of the processing activities carried out under the Contract; and
- permit, at the cost of Customer, on an annual basis, reasonable access by Customer to all records, files, tapes, computer systems, or any other information howsoever held by Desana in respect of Desana's activities pursuant to the Contract for the purposes of reviewing compliance with this clause.
10.4 Notwithstanding the above, Customer acknowledges and agreed that Desana may use data collected in the course of the Contract in an anonymous and aggregated way for its own business purposes and analytics.
10.5 Basic User booking data, and information relating to a User’s access to the Service, will be available to Customer at no further charge as part of their Subscription over the time periods specified on the Desana Platform. If Customer wishes to gain access to any further data analysis of User usage data, access to such data shall be separately chargeable, and priced on a case by case basis.
10.6 The provisions of this clause 10 will survive termination or expiry of the Contract.
11.1 Assignation and other dealings:
Customer may not, at any time, assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may not subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent without the prior written consent from Desana.
11.2 Entire agreement:
- The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
- Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract.
- Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:
- waive that or any other right or remedy; or
- prevent or restrict the further exercise of that or any other right or remedy.
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
- Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, or email.
- A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 11.5(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second business also day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by email, one business day after transmission.
- The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
11.6 Third parties:
No one other than a party to the Contract shall have any right to enforce any of its terms.
11.7 Governing law:
The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the laws of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
Business Day: a day other than a Saturday, Sunday or public holiday in England and Wales when banks in London are open for business;
Charges: the charges paid by Customer under the Contract for access to the Paid Services, including Credits and One-Off Payments;
Conditions: these terms and conditions as amended from time to time in accordance with clause 1.4;
Contract: the contract between Desana and Customer consisting of these Conditions and the Proposal Document
Credit: the credits purchased by Customer to allow their Users to book and access hot desks (which are not based in Internal Work Spaces) through the Paid Services;
Desana Dashboard: the platform made available to Customer to allow you to view available Credits (in respect of the Paid Services) and otherwise manage your account with Desana and the operation of the Service;
Flexible Work Space: any area of working space within a shared workspace, a desk, desks, enclosed office space, meeting rooms, workshops, laboratories or any other similar arrangement for space which enables a working environment for the relevant User which Is not an Internal Work Space;
Free Services: means use of the Desana Platform for the management by Customers in respect of such spaces) and booking by Users of Internal Work Spaces;
Initial Subscription Term: means the number of months specified in the Proposal;
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
Internal Work Space: any area of working space, desks, enclosed office space, meeting rooms, workshops or any other similar arrangement for space which enables a working environment for the relevant Users, where such spaces are owned and/or occupied exclusively by a Customer, and utilised exclusively for internal Customer (or Customer group) purposes by Users employed or engaged exclusively for the benefit of such Customer or Customer’s group of companies;
Listing: means any listing or similar information posted on the Desana Platform in respect of any Flexible Work Space or Internal Work Space;
One-Off Payment: one-off payments made by Customer at the point of purchase, allowing Customer’s Users to book and access third-party meeting rooms, office space and fixed desks (that are not based in Internal Work Spaces);
Proposal Document: the document incorporating these Conditions provided by Desana to Customer setting out the commercial terms on which Customer agrees to access the Service; and
Subscription Date: the date on which the parties agree the subscriptions for Credits (and payment of One-Off Payments) (in respect of the Paid Services) or access (in respect of the Free Services), shall commence.
- A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
- Any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
- A reference to writing or written includes email.
Last Updated: 20/07/2020