STANDARD MEMBERSHIP AGREEMENT
This STANDARD MEMBERSHIP AGREEMENT is entered into by and between Actuate Boise, Inc., an Idaho nonprofit corporation doing business as Trailhead (“Trailhead”), and you (“Member”). Trailhead provides a shared, community-driven co-workspace and certain services to persons and entities for a fee. Member seeks to use Trailhead’s co-workspace, and certain services which Trailhead offers for a fee. The parties to this Agreement, with the intent to be mutually and legally bound, for good, valuable and sufficient consideration, agree as follows: 1. Description of Services; Acceptance of Terms. Trailhead will provide Member with access to office space, internet access, conference space, knowledge resources, access to events, and other services as Trailhead may provide from time to time (collectively “Services”) all located at 500 S. 8th Street, Boise, Idaho (the “Premises”). Member agrees to use the Services subject to the following terms and to abide by Trailhead’s Code of Conduct. Trailhead retains the right to update, amend and/or change the Code of Conduct at any time without prior notice to Member.
2. Use of Services and Premises.
This Standard Membership Agreement does not create a tenancy, but a prepaid usage license to use the Services and the Premises on a monthly or casual basis. Member agrees, when participating in or using the Services or Premises, Member will not:
a. Disturb other licensees and recognize their right to quiet enjoyment of the premises. Member shall not listen to radios and other such equipment except with headphones; will conduct phone conversations quietly or use the phone room ensuring that all noise that might disturb other members be kept to a minimum;
b. Abuse the conference room policy and pay for its use;
c. Lend keys or give codes to anyone; allow a nonmember to use the space unless accompanied by Member; be responsible for your Members’ guests’ actions at all times;
d. Bring pets into the Premises at any time;
e. Bring bicycles into the Premises without permission.
f. Place any signs or lettering anywhere in the Premises or the building.
g. Keep any flammable or hazardous substances in the Premises.
h. Spam, post or download files that Member knows or should know are illegal or that Member has no rights to; access any other device connected to the Trailhead network or the Internet that Member does not have permission to access;
i. Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others;
j. Publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, obscene, indecent or unlawful topic, name, material or information on or through Trailhead servers.
k. Use any material or information, including images or photographs, which are made available through the services in any manner that infringes any copyright, trademark, patent, trade secret, or other proprietary right of any party;
l. Upload files that contain viruses, Trojan Horses, Worms, time bombs, candlebots, corrupted files, or any other similar software or programs that may damage the operation of another’s computer or property of another.
m. Restrict or inhibit any other Member from using and enjoying the Services.
n. Violate any code of conduct or other guidelines which may be applicable for any particular Service (including the Code of Conduct);
o. Harvest or otherwise collect information about other, including email addresses, without the authorization or consent of the disclosing party. p. Violate any applicable laws or regulations.
3. Invoicing and Payment.
Member is automatically invoiced monthly or annually in advance based on its membership option. Payment is required at the beginning of the month for that period. Member will provide Trailhead with a credit card or debit card number from a card issuer acceptable to Trailhead in order to activate use of the Services. Member hereby authorizes Trailhead to charge and/or place a hold on Member’s credit or debit card with respect to any charges for the Services based upon Trailhead’s fee schedule then in effect. Member authorizes the issuer of the card to pay any amounts described herein without requiring a signed receipt, and Member agrees that this Agreement are to be accepted as authorization to the issuer of the card to pay all such amounts. Member authorizes Trailhead to continue to attempt to charge and/or place holds with respect to all sums described herein, or any portion thereof, to Member’s card until such amounts are paid in full. Member agrees to provide Trailhead with updated card information upon request and at any time the information previously provided is no longer valid.
Member acknowledges and agrees that Trailhead will have no liability whatsoever for any nonsufficient funds or other charges incurred by Member as a result of such attempts to charge and/or place holds on, Member’s card. In the event that Member is enrolled, or later enrolls, in an automatic payment or electronic funds transfer plan, Member agrees that all sums for the Services may be charged, at Trailhead’s option, to the account number provided for such automatic payment or electronic funds transfer plan. When payment is made by credit or debit card, payment will also be subject to the terms and conditions established by the credit or debit card issuer. If there is any dispute as to a charge, Member shall promptly bring such to the attention of Trailhead, but in no event later than the maximum number of days permitted by the credit or debit card processing agreement (and if none is stated then sixty (60) days after the earlier of written confirmation from Trailhead or the posting on Member’s card statement), and otherwise in compliance with applicable law and card agreements if such provide more favorable rights to Member.
4. No Unlawful or Prohibited Use.
As a condition of Member’s use of the Services, Member will not use the Services for any purpose that is unlawful or prohibited by these terms, conditions and notices. Member may not use the Services in any manner that could damage, disable, overburden, or impair any Trailhead server, or the network(s) connected to any Trailhead server, or interfere with any other party’s use and enjoyment of any Services. Member may not attempt to gain unauthorized access to any Services, or accounts, computer systems or networks connected to any Trailhead server or to any of the Services, through hacking, password mining or any other means. Member may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Services. Member hereby represent and warrant that it has all requisite legal power and authority to enter into and abide by the terms and conditions of this Agreement and Code of Conduct and no further authorization or approval is necessary. Member further represents and warrants that its participation or use of the Services will not conflict with or result in any breach of any license, contract, agreement or other instrument or obligation to which it is a party.
5. Information disclosure
Trailhead reserves the right at all times to disclose any information about Member, its participation in and use of the Services as Trailhead deems necessary to satisfy any applicable contract, law, regulation, legal process or governmental request. In addition, Trailhead reserves the right at all times to edit, refuse to post or to remove any information or materials, in whole or in part, in Trailhead’ sole discretion.
6. Participation in or Use of Services.
Member acknowledges that it is participating in or using the Services at its own free will and decision. Member acknowledge that Trailhead does not have any liability with respect to its access, participation in, use of the Services, or any loss of information resulting from such participation or use, including any advice or information provided by any third parties in connection with the Services.
7. Compliance with Laws and Agreements.
Member agrees to comply with all applicable laws, ordinances, and codes of Federal, state and local governments. Member shall abide by all terms of that certain Entrepreneurship Consulting Agreement dated February 3, 2015 (the “Consulting Agreement”), and that certain office lease attached to the Consulting Agreement (the “Lease”). Member agrees that it’s use of the Premises will not extend beyond this Agreement, the Consulting Agreement and the Lease.
8. Disclaimer of Warranties.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TRAILHEAD PROVIDES THE SERVICES "AS IS" AND WITH ALL FAULTS, AND HEREBY DISCLAIMS WITH RESPECT TO THE SERVICES ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY (IF ANY) WARRANTIES, DUTIES OR CONDITIONS OF OR RELATED TO: MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, LACK OF VIRUSES, ACCURACY OR COMPLETENESS, RESULTS, WORKMANLIKE EFFORT AND LACK OF NEGLIGENCE. ALSO, THERE IS NO WARRANTY, DUTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT. THE ENTIRE RISK AS TO THE QUALITY, OR ARISING OUT OF PARTICIPATION IN OR THE USE OF THE SERVICES, REMAINS WITH MEMBER.
9. Exclusion of Incidental, Consequential and Certain Other Damages.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL TRAILHEAD OR ITS AFFILIATES, DIVISIONS, AND THEIR PAST, PRESENT AND FUTURE OFFICERS, AGENTS, SHAREHOLDERS, MEMBERS, REPRESENTATIVES, EMPLOYEES, SUCCESSORS AND ASSIGNS, JOINTLY OR INDIVIDUALLY BE LIABLE FOR ANY DIRECT, SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, CONSEQUENTIAL OR OTHER DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR: LOSS OF PROFITS, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION, PERSONAL INJURY, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY (INCLUDING OF GOOD FAITH OR OF REASONABLE CARE), NEGLIGENCE, AND ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE PARTICIPATION IN OR INABILITY TO PARTICIPATE IN OR USE OF THE SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IN THE EVENT OF FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF TRAILHEAD OR ITS SERVICE PROVIDERS, AND EVEN IF TRAILHEAD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO MEMBER.
10. Limitation of Liability and Remedies. NOTWITHSTANDING ANY DAMAGES THAT MEMBER MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED ABOVE AND ALL DIRECT OR GENERAL DAMAGES), THE ENTIRE LIABILITY OF TRAILHEAD OR ITS AFFILIATES, DIVISIONS, AND THEIR PAST, PRESENT AND FUTURE OFFICERS, AGENTS, SHAREHOLDERS, MEMBERS, REPRESENTATIVES, EMPLOYEES, SUCCESSORS AND ASSIGNS UNDER ANY PROVISION OF THIS AGREEMENT AND MEMBER’S EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING SHALL BE LIMITED TO ACTUAL DAMAGES INCURRED BY MEMBER BASED ON REASONABLE RELIANCE UP TO ONE HUNDRED DOLLARS (USD $100.00). THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS (INCLUDING SECTIONS 8 AND 9 ABOVE) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
11. Termination. Trailhead reserves the right to terminate any Service at any time for any reason. Trailhead further reserves the right to terminate Member’s participation in and use of any Services, immediately and without notice, if Member fails to comply with the Code of Conduct.
12. Non-Disparagement Member shall, during and after the participation in and use of the Services, refrain from making any statements or comments of a defamatory or disparaging nature to any third party regarding Trailhead, or any of Trailhead’ officers, directors, employees, personnel, agents, policies, services or products, other than to comply with law.
13. Indemnification. Member releases, and hereby agrees to indemnify, defend and save harmless Actuate Boise, Inc., d/b/a Trailhead and its affiliates, divisions, directors, present and future officers, agents, members, representatives, employees, successors and assigns (each an “Indemnitee”), jointly and individually, from and against all claims, liabilities, losses, damages, costs, expenses, judgments, fines and penalties based upon or arising out of Member’s negligent actions, errors and omissions, willful misconduct and fraud in connection with the participation in or use of the Services or the Premises, including any liability of Trailhead under Section 7A of the Consulting Agreement. Member shall be liable for any attorney’s fees and costs incurred by any Indemnitee in connection with the defense of any claim or lawsuit arising from Member’s violation of this Agreement or the Code of Conduct.
14. Severability. In the event that any provision or portion of this Agreement or Code of Conduct is determined to be invalid, illegal or unenforceable for any reason, in whole or in part, the remaining provisions of this Agreement or Code of Conduct shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by applicable law.
15. Insurance. As required by the owner of the Premises, Trailhead carries Liability and Business Personal Property insurance. As a user of the Premises, Member is strongly encouraged to carry sufficient insurance to cover its own equipment while using the Premises.
16. Invoicing and Payment.
Member will pay monthly in advance based on your membership option. Payment is required at the beginning of the month for that period. Payment for casual usage of the conference room is paid upon booking the room. If payment is not made on time, Trailhead may terminate this agreement.
17. Agreement as License.
This Agreement constitutes a license to use the Premises in accordance with the terms of this Agreement and not in any way constitutes a lease or sub-lease.
18. Member’s use of the Premises. Member understands other persons and entities will have access to the Premises and therefore Member shall not interfere with other persons or entities use of the Premises. Member understands that Member shall not have the permanent use of any space in the Premises except under written agreement with Trailhead.
a. This Agreement shall inure to the benefit of and bind the parties hereto and theirsuccessors, heirs, and assigns.
b. This Agreement shall constitute the entire Agreement between the parties.
c. This Agreement shall be governed by the laws of the State of Idaho.
d. This Agreement may be amended or supplemented only by a written instrument signed by both parties hereto.
e. This Agreement may be executed in any number of identical counterparts each of which shall be considered an original but together shall constitute but one and the same Agreement.
f. The captions or paragraph headings are for the convenience and ease of reference only and shall not be construed to limit or alter the terms of this Agreement.
Any notices under this Agreement shall be delivered in person, by US mail, email, or facsimile or other such service to the party at the address listed below. Any such notice shall be considered delivered upon delivery in person, by US mail, email, or facsimile or other such service.
Cobot is the web platform used by Trailhead 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 his Account. Customer shall keep his 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 his 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 his/her 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 his/her 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 he/she is responsible for its 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 him/her 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 his 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 his/her 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 him/her (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 he/she 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.