1. THE LINGO
• “Authorized Signatory” means an individual authorized to legally bind your company.
• “Main Premises” means the Premises in which the Office Space is located, at 2324 Plank Road, Fredericksburg VA, 22401, USA
• “Member” means the person you authorize to receive the benefits of the membership list.
• “Member Company” means a company, entity, or individual that enters into a Membership Agreement with CoWork.
• “Premises” means a building or a portion of a building in which CoWork offers or plans to offer offices, workstations, other workspaces, and/or other services to Member Companies.
• “Primary Member” means the primary in-Premises Member contact for CoWork.
• “Start Date” means the start date of membership. This is designated as the date of sign up.
• “CoWork,” “we” or “us” means the CoWork entity you are contracting with, which may be amended by CoWork from time to time.
• “You” means the company or other entity listed on the Membership Details form.
2. THE BENEFITS OF MEMBERSHIP
(a) Services. Subject to the terms and conditions of this agreement, including any attachments, exhibits, and addenda (including any additional or supplemental Membership Details forms) (collectively, the “Agreement”) and any other policies we make available to you from time to time, during the Term (defined below), CoWork will use commercially reasonable efforts to provide you (and your Members, as applicable) the services described below. These services are referred to in this Agreement as the “Services.”
• Non-exclusive access to the Office Space.
• Regular maintenance of the Office Space, consistent with the maintenance provided to similar workspaces in the Premises, provided that we will not be responsible for damage exceeding normal wear and tear.
• Furnishings for the Office Space of the quality and in the quantity typically provided to other CoWork Member Companies with similar office space, workstations, and/or other workspace, as applicable, in the Premises.
• Access to and use of the CoWork Member site.
• Access to and reasonable use of the shared Internet connection.
• Reasonable use of the printers, copiers and/or scanners made publicly available in the Premises.
• Use of the conference rooms in any CoWork Premises during such Premises’ Regular Business Hours on Regular Business Days, subject to availability and your prior reservation of such conference rooms.
• Heat and air-conditioning in the Office Space during Regular Business Hours on Regular Business Days.
•Printing on premises. CoWork has a shared printer that is available to all members. This is included with the membership and members are allowed to use the printer, within reason.
(b) Business Hours/Days. “Regular Business Hours” are generally from 8:00 a.m. to 5:00 p.m. on Regular Business Days in the time zone where the applicable Office Space is located. “Regular Business Days” are all weekdays, except local government holidays and up to three other days of which we will inform you.
3. YOUR MEMBERS
(a) Members. Only those individuals who purchased a monthly membership will be deemed to be a “Member” and entitled to the benefits described in this Agreement. The Member will be able to begin using, accessing, and/or receiving the Services, after purchasing a membership.To make changes to your Member, you must have your Primary Member send an email, from the Primary Member’s email account on file with CoWork, to the email address specified at the bottom of the Membership Details form. The email requesting the change must include the name(s) and email address(es) of the departing and new Member(s) and the effective date of the change. The changes will not take effect until we confirm that we have received the email and have accepted and applied the change, in our sole discretion. A Member will no longer be allowed access to the Services upon the earlier of (i) the termination or expiration of this agreement; (ii) your removal of such Member or (iii) our notification to you that such Member will be removed from CoWork’s Member list, for example if such Member violated this Agreement. We reserve the right to further limit the number of Members allowed at any point. CoWork will create a profile for such Member on the CoWork Member Network. Such profile will be viewable by us, our employees and agents, and other members. Such profile may include a photograph of the Member, in addition to other information about the Member. You are responsible for informing each of your Members about the creation of such profile.
4. MEMBERSHIP FEES; PAYMENTS
(a) Payments Due Upon The First Day of Every Month. Upon submitting a signed and completed Agreement, you will be obligated to deliver to us, in the amount(s) set forth on your Membership Details form.
(b) Membership Fee. During the Term of this Agreement, we will process payment for your Membership Fee and other then-outstanding fees, in advance, monthly and no later than the fifth (5th) business day of each month. You shall be responsible for having the necessary funds available in your payment account as of the first (1st) day of the month. The Membership Fee set forth on the Membership Details form covers the Services for only the number of Members indicated in the Membership Details form.
(c) Invoices; Financial Information. CoWork will send or otherwise provide invoices and other billing-related documents, information and notices to the Member, unless a different Billing Contact is indicated. Change of the Billing Contact will require notice from the Authorized Signatory in accordance with this Agreement.
(d) Outstanding payments. If payment for the Membership Fee or any other accrued and outstanding fee is not made by 60 days after such payment is due, the membership will be terminated.
(e) Form of Payment. We accept payment of all amounts specified in this Agreement by credit card, cash, or check. If you elect to pay via credit card, you are required to inform us promptly of any changes to your credit card information and must ensure that you replace such credit card and update the relevant information prior to its expiration date. Payments via credit card will be made online via the Cobot / CoWork website. Cash or checks should be delivered to the appropriate CoWork manager in-person or mailed to the CoWork address, appropriately labeled to reflect the Member(s) for whom payment is being submitted.
(f) No Refunds.There are no refunds of any fees or other amounts paid by you or your Members in connection with the Services.
5. TERM & TERMINATION
(a) Except as set forth in this section, you may terminate this Agreement by completing the cancellation request in the CoWork members website (cancellation request). The termination will become effective on the day the member designates on the cancellation request; provided that the Agreement is not terminable during the Initial Term. The cancellation request needs to be completely filled out and signed by the Authorized Signatory (Member). You will not be entitled to pro ration with respect to the last month’s Membership Fee. For instance, if you vacate your Office Space before the last Regular Business Day of April, you will still owe us the full Membership Fee for the month of April. On the last Regular Business Day of the month, you must vacate the Office Space no later than 5:00 p.m. Changes in Office Space, to the extent you have already occupied a different Office Space, will also require compliance with the termination obligations set forth in this Section 5 for the Office Space being vacated.
(b) Termination or Suspension After the Start Date by Us. We may withhold Services or immediately terminate this Agreement: (i) upon breach of this Agreement by you or any Member; (ii) upon termination, expiration or material loss of our rights in the Premises; (iii) if any outstanding fees are still due after we provide notice to you; (iv) if you or any of your Members fail to comply with the terms and conditions of this Agreement or any other policies or instructions provided by us; or (v) at any other time, when we, in our reasonable discretion, see fit to do so. You will remain liable for past due amounts, and we may exercise our rights to collect due payment, despite termination or expiration of this Agreement.
(c) Removal of Property Upon Termination. Prior to the termination or expiration of this Agreement, you will remove all of your, your Members’, and your or their guests’ property from the Office Space and Premises. After providing you with reasonable notice, we will be entitled to dispose of any property remaining in or on the CoWork or Premises after the termination or expiration of this Agreement and will not have any obligation to store such property, and you waive any claims or demands regarding such property or our handling of such property. You will be responsible for paying any fees reasonably incurred by us regarding such removal. Following the termination or expiration of this Agreement, we will not forward or hold mail or other packages delivered to us.
6. HOUSE RULES
You acknowledge and agree that:
• you shall promptly notify us of any change to your contact and payment information;
• we will provide notice to you of any changes to services, fees, or other updates by emailing the email address(es) provided by you. It is your responsibility to read such emails and to ensure your Members are aware of any changes, even if we notify such Members directly;
• for security reasons, we may, but have no obligation to, regularly record certain areas in the Premises via video;
• we may disclose information about you as necessary to satisfy any applicable law, rule, regulation, legal process or government request or as we otherwise deem reasonably necessary for the protection of us, other members;
• you will abide by other rules and regulations as determined by us and communicated to you, including by email. We may add, delete or amend the rules and regulations at our reasonable discretion and with notice to you, provided that neither the enforcement of such rules nor the additions, deletions or amendments of such rules shall be discriminatory—that is, such rules or additions will similarly apply to all other Members and Member Companies with Office Space in the Premises receiving similar services;
• common spaces, like phone booths, are to be enjoyed by all our members and guests unless otherwise instructed by us, and are for temporary use and not as a place for continuous, everyday work;
• you have no expectation of privacy with respect to CoWork’s Internet connection, networks, telecommunications systems or information processing systems (including any stored computer files, email messages and voice messages), and your activity and any files or messages on or using any of those systems may be monitored at any time without notice, including for security reasons and to ensure compliance with CoWork’s policies, regardless of whether such activity occurs on equipment owned by you or CoWork; and
• notwithstanding any rights under trademark or copyright law and any rights of publicity, privacy or otherwise, and without further compensation, we may and hereby are authorized to use, in connection with promotion of our and our partners’ businesses, products and services during and after the Term, (i) your name, trademark, service mark, logo, trade dress and other identifiers and intellectual property and (ii) the names, likenesses, and voices of each of your Members and guests when they are in any Premises (regardless of whether or not your specific Office Space is located in such Premises). We will use commercially reasonable efforts to obtain your prior written consent for our use of the items described in clause (i) of the immediately preceding sentence. You will ensure that you have obtained, in writing, all licenses, permissions, consents, rights and releases necessary, including without limitation from any Members, guests or other third parties, in order to grant to us the rights and licenses set forth in this section.
(b) No Member will:
• perform any activity that is reasonably likely to be disruptive or dangerous to us or any other Member Companies, or our or their employees, guests or property, including without limitation the Office Space or the Premises;
• use the Services to conduct or pursue any illegal activities;
• use the Services to conduct any activity that is generally regarded as offensive;
• attach or affix any items to the walls or make any other alterations to the Office Space, or install antennas or telecommunication lines or devices in the Office Space or the Premises or bring any additional furniture into the Office Space or the Premises, in each case without our prior written consent;
• misrepresent himself or herself to the CoWork community, either in person or on the CoWork Member Network;
• take, copy or use any information or intellectual property belonging to other Member Companies or their Members or guests, including without limitation personal names, likenesses, voices, business names, trademarks, service marks, logos, trade dress, other identifiers or other intellectual property, or modified or altered versions of the same, and this provision will survive termination of this Agreement;
• take, copy or use for any purpose the name “CoWork” or any of our other business names, trademarks, service marks, logos, trade dress, other identifiers or other intellectual property or modified or altered versions of the same, or take, copy or use for any purpose any pictures or illustrations of any portion of the Premises, without our prior consent, and this provision will survive termination of this Agreement;
• use the Office Space in a “retail,” “medical,” or other nature involving frequent visits by members of the public. All meetings must be taken in the Private office or within.
• possession or consumption of alcohol, or any illegal substances on the premises is prohibited.
• weapons or anything that is potentially harmful and dangerous to other members are prohibited.
• CoWork is a non-smoking space; smoking or vaping indoors is prohibited
• Quiet/noise policy and phone call policy - CoWork is a shared space with a noise policy intended to best serve all members; For phone calls or meetings beyond 15 minutes, Members are asked to use one of the phone booths, book a private meeting space, or make alternate arrangements. Activities like telemarketing, call center services, or similar activities which require continued time on the phone / in meetings are not suitable for CoWork Memberships.
• CoWork operates on a “first come, first served” seating model; individual seats or spaces (other than bookable conference or private office spaces) cannot be reserved and must be shared with other Members
• Internet access is provided to all members on a shared basis. Members are to utilize available connections for normal and appropriate business / personal use. High-bandwidth activities (streaming video/entertainment, download of large files, file-sharing via peer-to-peer platforms, etc.) are prohibited. This is a common sense utilization policy, and CoWork reserves the right to modify this policy or to rescind access in instances where this policy is being abused by one or more Members.
• CoWork and its employees are not responsible for lost/stolen items; Members are responsible for monitoring and securing their personal property - lockable cabinets are available for daily or temporary use.
• CoWork and its employees are not responsible for lost/stolen items or damages incurred outside of the facility, to include the parking lot, grounds, etc.
• CoWork will make best attempt to recover and hold items that are left behind at the end of the day (i.e. Lost & Found) for up to one week after any specific event.
• Members are not to use common / shared spaces for meeting or conversational purposes anticipated to extend more than 15 minutes. For longer meetings, Members are asked to reserve one of the private spaces or conference rooms.
• Pets are prohibited; The only exception to this policy are service animals, defined by the Americans with Disabilities Act (ADA) as “any animal individually trained to work or perform tasks for the benefit of an individual with a disability, including, but not limited to, guiding individuals with impaired vision, alerting individuals to an impending seizure or protecting individuals during one, and alerting individuals who are hearing impaired to intruders, or pulling a wheelchair and fetching dropped items.”
• Visitor Policy - Visitors remaining for periods extending beyond a normal meeting are asked to purchase a day pass, available via the CoWork website
• Members who are registered for OPUS virtual office services are also subject to terms and conditions set forth within that agreement (https://www.opusvirtualoffices.com/english/terms-of-use.html)
• Mail collecting, forwarding and notification - for Members subscribing to Mail Collection services (via CoWork or via OPUS), mail is delivered/distributed to your collection box on a daily basis. Forwarding of mail is not a standard service but must be arranged on a case-by-case basis. Email notification will be provided on a weekly basis to notify Members of mail to be collected.
• CoWork management reserves the right to intervene in other circumstances where Members are determined to be disruptive to other Members (noise, food, language, behavior, etc.); CoWork expects Members and their guests to behave in a professional, humane and cooperative manner. Members or guests in violation of policies may be asked to leave or in extreme circumstances, may have their membership immediately terminated.
(a) In the event of an inclement weather closure, CoWork will notify members through email and other social media channels like, Facebook, Twitter, and Instagram.
(b)CoWork will also observe the following holidays: New Year's Day, Martin Luther King, Jr. Day, President’s Day, Memorial Day, Independence Day, Labor Day, Columbus Day (Indigenous People’s Day), Veterans Day, Thanksgiving Day, Black Friday, Christmas Eve, Christmas Day. CoWork will also notify all members of these closures at least 3 days prior to the holiday.
7. ADDITIONAL AGREEMENTS
(a) Waiver of Claims. To the extent permitted by law, you, on your own behalf and on behalf of your Members, employees, agents, guests and invitees, waive any and all claims and rights against us and our landlord at the Main Premises and our or its affiliates, parents, and successors and each of our and their employees, assignees, officers, agents and directors (collectively, the “CoWork Parties”) resulting from injury or damage to, or destruction, theft, or loss of, any property, person or pet.
(b) Limitation of Liability. The aggregate monetary liability of any of the CoWork Parties to you or your Members, employees, agents, guests or invitees for any reason and for all causes of action, will not exceed the total Membership Fees paid by you to us under this Agreement in the twelve (12) months prior to the claim arising. None of the CoWork Parties will be liable under any cause of action, for any indirect, special, incidental, consequential, reliance or punitive damages, including loss of profits or business interruption. You acknowledge and agree that you may not commence any action or proceeding against any of the CoWork Parties, whether, in contract, tort, or otherwise, unless the action, suit, or proceeding is commenced within one (1) year of the cause of action’s accrual.
(c) Indemnification. You will indemnify the CoWork Parties from and against any and all claims, liabilities, and expenses including reasonable attorneys’ fees, resulting from any breach of this Agreement by you or your Members or your or their guests, invitees, or pets or any of your or their actions or omissions. You are responsible for the actions of and all damages caused by all persons and pets that you, your Members or your or their guests invite to enter any of the Premises. You shall not make any settlement that requires a materially adverse act or admission by us or imposes any obligation upon any of the CoWork Parties without our written consent. None of the CoWork Parties shall be liable for any settlement made without its prior written consent.
(d) Insurance. You are responsible for maintaining, at your own expense and at all times during the Term and for a period of two (2) years after, personal property insurance and commercial general liability insurance covering you and your Members for property loss and damage, injury to your Members and your Members’ guests or pets and prevention of or denial of use of or access to, all or part of the Premises, in form and amount appropriate to your business. You will ensure that CoWork and the landlord of the applicable Premises shall each be named as additional insureds on any such policies of insurance and that you waive any rights of subrogation you may have against CoWork and the landlord of the applicable premises. You shall provide proof of insurance upon our request.
(e) Other Members. We do not control and are not responsible for the actions of other Members, or any other third parties. If a dispute arises between members or their invitees or guests, we shall have no responsibility or obligation to participate, mediate or indemnify any party.
8. ARBITRATION AND CLASS ACTION WAIVER
(a) Governing Law. This Agreement and the transactions contemplated hereby shall be governed by and construed under the law of the Commonwealth of Virginia, U.S.A. and the United States without regard to conflicts of laws provisions thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods or Virginia’s or any other implementation of the Uniform Computer Information Transactions Act.
(b) Venue. Except that either party may seek equitable or similar relief from any court of competent jurisdiction, 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:
• In accordance with the arbitration rules of JAMS then in force, by one or more arbitrators appointed in accordance with said rules. The place of arbitration shall be Fredericksburg, Virginia, U.S.A.
• If Your Office Space is Located Outside of the U.S., in accordance with the International Chamber of Commerce commercial arbitration rules then in force, by one or more arbitrators appointed in accordance with said rules. The place of arbitration shall be London, England.
(c) Proceedings; Judgment. The proceedings shall be confidential and in English. The award rendered shall be final and binding on both parties. 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, any appeal or petition for review, 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.
(d) Class Action Waiver. Any proceeding to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. Neither you nor we will seek to have any dispute heard as a class action or in any proceeding in which either party acts or proposes to act in a representative capacity. No proceeding will be combined with another without the prior written consent of all parties to all affected proceedings. You and we also agree not to participate in claims brought in a private attorney general or representative capacity, or any consolidated claims involving another person’s account, if we are a party to the proceeding. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST US INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS.
(a) Nature of the Agreement; Relationship of the Parties. Your agreement with us is the commercial equivalent of an agreement for accommodation in a hotel. The whole of the Office Space remains our property and in our possession and control. We are giving you the right to share with us the use of the Office Space so that we can provide the Services to you. Notwithstanding anything in this Agreement to the contrary, you and we agree that our relationship is not that of landlord-tenant or lessor-lessee and this Agreement in no way shall be construed as to grant you or any Member any title, easement, lien, possession or related rights in our business, the Premises, the Office Space or anything contained in or on the Premises or Office Space. This Agreement creates no tenancy interest, leasehold estate, or other real property interest. The parties hereto shall each be independent contractors in the performance of their obligations under this Agreement, and this Agreement shall not be deemed to create a fiduciary or agency relationship, or partnership or joint venture, for any purpose. Neither party will in any way misrepresent our relationship.
(b) Updates to the Agreement. Changes to membership and overage fees, will be governed by section 4(b) and 4(d) of this Agreement, respectively, and changes to the House Rules will be governed by section 6(a) of this Agreement. With respect to other sections of this Agreement, we may from time to time update this Agreement and will provide notice to you of these updates. You will be deemed to have accepted the new terms of the Agreement following the completion of one (1) full calendar month after the date of notice of the update(s). Continued use of the Office Space or Services beyond this time will constitute acceptance of the new terms.
(c) Waiver. Neither party shall be deemed by any act or omission to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by the waiving party.
(d) Subordination. This Agreement is subject and subordinate to our lease with our landlord of the Premises and to any supplemental documentation and to any other agreements to which our lease with such landlord is subject to or subordinate.
(e) Extraordinary Events. CoWork will not be liable for, and will not be considered in default or breach of this Agreement on account of, any delay or failure to perform as required by this Agreement (with the exception of any obligations on your part to pay any sum of money due to us under this Agreement) as a result of any causes or conditions that are beyond CoWork’s reasonable control, including without limitation any delays or changes in construction of, or CoWork’s ability to procure any space in, any Premises.
(f) Severable Provisions. Each provision of this Agreement shall be considered separable. To the extent that any provision of this Agreement is prohibited, this Agreement shall be considered amended to the smallest degree possible in order to make the Agreement effective under applicable law.
(g) Survival. Sections 1, 2(c), 4 (to the extent any payments remain outstanding), 5(c), 5(e), 5(f), 7(a) through 7(e), 7(g), 8, and 9 and all other provisions of this Agreement reasonably expected to survive the termination or expiration of this Agreement will do so.
(h) Notices. Any and all notices under this Agreement will be given via email, and will be effective on the first business day after being sent. All notices will be sent via email to the email addresses specified on the Membership Details form, except as otherwise provided in this Agreement. CoWork may send notices to either (or both) the Primary Member or the Authorized Signatory, as CoWork determines in its reasonable discretion. Notices related to the physical Office Space, Premises, Members, other Member Companies or other issues in the Premises should be sent by the Primary Member.
Notices related to this Agreement or the business relationship between you and CoWork should be sent by your Authorized Signatory. In the event that we receive multiple notices from different individuals within your company containing inconsistent instructions, the Authorized Signatory’s notice will control unless we decide otherwise in our reasonable discretion.
(i) Headings; Interpretation. The headings in this Agreement are for convenience only and are not to be used to interpret or construe any provision of the Agreement. Any use of “including,” “for example” or “such as” in this Agreement shall be read as being followed by “without limitation” where appropriate.
(j) No Assignment. Except in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of the shares or assets of you or your parent corporation, you may not transfer or otherwise assign any of your rights or obligations under this Agreement (including by operation of law) without our prior consent. We may assign this Agreement without your consent.
(k) OFAC. You hereby represent and warrant that (i) neither you nor any of your Members are or will be, at any time during the Term, an entity or individual listed on the Specially Designed Nationals and Blocked Persons List published by the U.S. Department of Treasury, as updated from time to time and (ii) neither you nor any of your Members will, at any time during the Term, engage in any activity under this Agreement, including the use of Services provided by CoWork in connection with this Agreement, that violates applicable U.S. economic sanctions laws or causes CoWork to be in violation of such U.S. economic sanctions laws.
(l) Entire Agreement. This Agreement, including the Membership Details form, constitutes the entire agreement between the parties relating to the subject matter hereof and shall not be changed in any manner except by a writing executed by both parties or as otherwise permitted herein. All TERMS & CONDITIONS prior agreements and understandings between the parties regarding the matters described herein have merged into this Agreement.
Cobot is the web platform used by CoWork Fredericksburg to provide this website.
1.1. Upstream-Agile GmbH, Adalbertstraße 7-8, 10999 Berlin, registered with the commercial register of the local court (Amtsgericht) of Charlottenburg under HRB 110149 B (“upstream”) provides an application to manage coworking spaces via its website www.cobot.me (the “Service” or “Services” or “Cobot”) as further specified on www.cobot.me (the “Website”).
1.2. All contractual relationships between upstream and any customer of upstream using Cobot (“Customer”, together with upstream the “Parties”, each a “Party”) shall be governed by these terms of service (“Terms of Service”). By registering on the Website or using Cobot, the Customer agrees to be bound by these Terms of Service.
1.3. Standard business conditions and/or general terms and conditions of the Customer do not apply, regardless of whether or not upstream has expressly objected to them in a particular case.
2.1. Any use of Cobot requires prior registration on the Website by creating an account (“Account”) and the acceptance of these Terms of Service. Customer must provide accurate and complete information and keep the Account information updated.
2.2. Customer is solely responsible for the activity that occurs on their Account. Customer shall keep their login data (password) confidential and prevent any unauthorized use by third parties. He shall immediately inform upstream if there are indications that any third party is misusing their account.
3.1. Offers published by upstream on the Website are non-binding.
3.2. The Customer may use Cobot for a trial run after registering. The Customer may only register for a trial run once. If a Customer registers for more than one trial run, upstream will have the right to delete these additional Accounts.
3.3. By registering on the Website according to section 2 hereof and subscribing to a subscription plan, the Customer makes a binding offer to use the respective Services. The offer shall be deemed to be accepted by upstream by making available the respective Service. Upon the acceptance of a subscription a contract governed by these Terms of Service between the Customer and upstream is concluded (the “Contract”).
4.1. The price for using Cobot depends on the number of members which are using the coworking space of the respective Customer (each a “Member”).
4.2. The Customer will be required to provide upstream with billing and account information for credit card, debit or other payment systems, such as PayPal, (each a “Payment Source”) for which the Customer is authorized to approve charges to allow upstream to collect payment from the Customer for their subscription plan. The Customer authorizes upstream to automatically and immediately bill the Payment Source when payments for subscription plans are due. The Customer shall only be allowed to raise an objection to a bill/deduction within eighty days starting from the day the deduction was made. If the objection was not raised, the deduction is deemed accepted by the Customer.
4.3. The billing of a subscription plan is made on a pre-paid basis. The payment source will be billed within five bank working days of the beginning of the chosen subscription period and then on a monthly or, as applicable, annual basis.
4.4. The prices stated on the Website are net prices excluding VAT. All other charges in connection with the use of the Services shall be borne by the Customer.
5.1. The Contract runs for an indefinite time and will remain in effect until terminated by one of the Parties in accordance with the Terms of Service.
5.2. The Parties may terminate this Contract for any or no reason at their convenience to the end of each month.
5.3. The Customer having used the trial run may unsubscribe from Cobot anytime without giving reason and without notice by using the respective button in their account.
5.4. The right of termination for cause and without notice remains unaffected for both Parties. A good cause for termination shall include, but shall not be limited to, any of the following events:
5.4.1. the Customer fails to comply with any applicable legal provisions;
5.4.2. a serious breach of the Customer of obligations arising from these Terms of Service by the Customer;
5.4.3. an attempt a denial of service attack on any of the Services by the Customer or any attempt to hack or break any security mechanism on any of the Services;
5.4.4. the Customer fails to pay the fees for the ordered Services;
5.4.5. a proceeding to wind-up the Customer or similar is brought against, or by the Customer (especially including insolvency and creditor protection scenarios and similar).
5.5. Any termination declaration shall be made via the “termination” button within the Account.
5.6. In the event of termination,
5.6.1. the Account of the Customer will be disabled and the Customer may not be granted access to their Account or any files or other content contained in the Account although residual copies of information may remain in upstream’s system;
5.6.2. any rights of use granted to Customer for using Cobot shall expire immediately and Customer shall cease to use the Services;
5.6.3. upstream will not refund any prepaid fees to Customer.
5.7. After a period of inactivity, whereby a user fails to log in to an Account for a period of nine months, upstream reserves the right to disable or terminate the Account. If an Account has been deactivated for inactivity, the subdomain associated with that Account may be given to another Customer without further notice.
6.1. Subject to these Terms of Service, and for the duration of the Contract, upstream grants the Customer a non-exclusive license to use the Services, which non-exclusive license is hereby accepted by Customer (the “License”). The License shall be granted as non-exclusive, non-assignable, non- transferable, with no right to sub-license, worldwide limited right to use the Services. Customer is responsible for its staff’s compliance with the Terms of Service.
6.2. The scope of the License shall be subject to and limited by the number of Members as agreed between upstream and the Customer.
6.3. upstream does not claim any ownership in any of the content uploaded, transmitted or stored by the Customer in its Account. upstream will not use any of such content for any purpose except to provide the Customer with the Services.
7.1. The Customer agrees that they are responsible for their own communications and for any consequences thereof. The Customer shall act according to the destined functions of the Website and Services. Any inappropriate or illegal use, manipulation, or change of the Website and Services is prohibited. In particular, the Customer shall, shall not agree to, and shall not authorize or encourage any third party to:
7.1.1. use the Service to upload, transmit or otherwise distribute any content that is unlawful, defamatory, harassing, abusive, fraudulent, obscene, contains malware or is otherwise objectionable as reasonably determined by upstream;
7.1.2. upload, transmit or otherwise distribute content that infringes upon another party’s intellectual property rights or other proprietary, contractual or fiduciary rights or obligations;
7.1.3. prevent others from using the Service; or
7.1.4. use the Service for any fraudulent or inappropriate purpose.
7.2. upstream reserves the right to delete any infringing content according to this section 7, terminate the Services and/or suspend Accounts of a Customer that is violating any of these Terms of Service, in particular this section 7.
The Customer represents and warrants that (i) all information provided by them to upstream to participate in the Services is correct and current; and (ii) the Customer has all necessary right, power and authority to enter into the Contract and to perform the acts required of Customer hereunder.
9.1. The Customer will indemnify, defend, and hold harmless upstream and its officers, directors, employees for any and all claims, suits, litigation, causes of action, losses, damages, expenses, costs (including court costs and attorneys’ fees) and liabilities (“Losses”) that arise out of, or in connection with (i) the Customer’s use of the Website and/or Services; (ii) any breach by the Customer of any warranty defined in section 8; (iii) any claim that the Customer’s content distributed via the Services caused damage to a third party.
9.2. In cases of an aforementioned enforcement of claims by third parties, the Customer will provide upstream with all their information that is needed for the examination of the claim and for the defense against it. The Customer provides the information immediately, truthfully, and completely.
9.3. The regulation of liability of the Customer or their obligation of indemnification shall apply to the same extent in the event of an act of a Member of the Customer.
10.1. upstream’s liability for damages caused by or related to the exercise of rights and obligations under this Agreement shall be excluded. The limitation of liability shall not cover
10.1.1. damage from injury to life, body or health caused by upstream;
10.1.2. damages caused by upstream that are a result of willful intent or gross negligence;
10.1.3. damages caused by upstream as a result of slight negligence in the event of upstream’s breach of an essential contractual obligation which is indispensable for the duly execution of the contract and thereby jeopardizes the achievement of the contract purpose and such damage is typically foreseeable at the time of the infringement;
10.1.4. upstream’s liability in the event of the assumption of a warranty if an obligation infringement covered thereby triggers upstream’s liability.
10.2. Liability under the Product Liability Act (Produkthaftungsgesetz) shall remain unaffected.
10.3. The limitations and/or restrictions of upstream’s liability shall also apply to the personal liability of its legal representatives and vicarious agents.
10.4. upstream will not be liable hereunder by reasons of any failure to timely perform its services due to an event beyond its reasonable control, including acts of God.
The Customer agrees that upstream may use information of the Customer provided by them (i.e. the name/trademark) for marketing purposes as reference on the Website. The Customer may withdraw such consent by writing an email to upstream to email@example.com.
13.1. These Terms of Service shall be governed by the laws of the Federal Republic of Germany excluding the Convention on Contracts for the International Sale of Goods (CISG) and the conflict of laws provisions. Both Parties submit to the exclusive jurisdiction of the courts of Berlin.
13.2. Should any provision of this Terms of Service be or become invalid, ineffective or unenforceable as a whole or in part, the validity, effectiveness and enforceability of the remaining provisions shall not be affected thereby. Any such invalid, ineffective or unenforceable provisions shall be deemed replaced by such valid, effective and enforceable provision as come closest to the economic intent and purpose as of such invalid, ineffective or unenforceable provisions as regard subject-matter, amount, time, place and extent. The aforesaid shall apply mutatis mutandis to any gap in these Terms of Service if any court has confirmed such proceeding.
13.3. upstream reserves the right to change these Terms of Service at any time without indicating the reasons. upstream will notify Customer of the changed Terms of Service on the Website or via email no later than two (2) weeks before the refined terms will take effect. In case Customer objects the new Terms of Service they may terminate the Contract with a period of two (2) weeks upon receipt of the information about the changes by upstream via the “termination” button within the Account.