Industrious expands internationally with new locations in Europe and Asia. Learn More
Contract Date: Date member completed the membership sign-up form on the Access eCheckout Portal
This Subscription Agreement (“Agreement”) is made by and between Industrious Account Management LLC, a Delaware limited liability company (“Industrious”), and the member (“Member”) set forth below:
For access to and services relating to Office Space (as defined in the Access eCheckout Portal Subscription Terms and Conditions), at the following terms:
This Agreement comprises this signature page and the Access eCheckout Portal Subscription Terms and Conditions, together with any attached or referenced exhibits and schedules. Optional services are available, as set forth on the attached initial fee schedule, which fees are subject to change from time to time with reasonable advance notice to Member.
This Agreement shall entitle Member to the number of Daily Passes described above. Member shall be permitted to use one (1) pass per person per day at the Location (the “Location”), in any combination that Member elects. For example, and not by way of limitation, in any one (1) month period, if Member subscribes to ten (10) Daily Passes per month, Member can use (a) one (1) pass at one (1) location on ten (10) different days, (b) ten (10) passes at ten (10) different locations on the same day, or (c) five (5) passes at five (5) different locations on two (2) different days. This paragraph is not applicable for “Virtual Services” (as defined in the Access eCheckout Portal Subscription Terms and Conditions).
The initial Agreement term (the “Term”) will commence on the License Start Date and end on the Earliest Expiration Date (each as specified above). If Member does not wish to renew this Agreement beyond the Earliest Expiration Date, written notice of non-renewal (a “Non-Renewal Notice”) must be received by the Location by the later of: (x) one (1) calendar months prior to the Earliest Expiration Date, or (y) the License Start Date. If a Non-Renewal Notice is not received by such date, the Term will automatically continue past the Earliest Expiration Date on a month-to-month basis (such month-to-month Agreement period, the “Extension Term”). As used in this Agreement, the Term will include any Extension Term. If Member wishes to terminate this Agreement effective as of a date within the Extension Term (if any) Member may send written notice of termination to the Location at any time, which will cause this Agreement to terminate effective as of the last day of the first (1st) full calendar month following the Location’s receipt of the Non-Renewal Notice. For example, ifcMember gives notice of termination on February 1st or 25th, the last day of Member’s subscription will be March 31st.
Simultaneously with Member’s execution of this Agreement, Member will deliver to the Location a security deposit in the amount described above (the “Security Deposit”).
This Agreement may be executed in counterparts, each of which will be deemed an original and all of which taken together will constitute one and the same agreement. Signatures to this Agreement transmitted by electronic means will be valid and effective to bind the party so signing. This Agreement will is valid when the member agrees to these terms on the Access eCheckout Portal.
(additional fees required) Please see your site manager.
* Subject to fair usage restrictions **Subject to availability and approval
SUBSCRIPTION TERMS AND CONDITIONS
These Subscription Terms and Conditions are incorporated into and made part of the Subscription Agreement (“Agreement”) entered into by and between the Location and the member (“Member”) set forth on the first page of this Agreement. Capitalized terms not otherwise defined herein have the meanings ascribed to them on the first page of this Agreement. The term “Office Space” shall collectively refer to: (i) Open Workspace (as defined below) (ii) any applicable Private Office (as defined below) (iii) the Premises (as defined below) where any Virtual Services (as defined below) are performed and (iv) the Virtual Services themselves, each as applicable to the context and usage of “Office Space” in the relevant provision.
Section 1. Open Workspace and Services
(a) Open Workspace. Subject to these terms and conditions and payment of all applicable fees, the Location will permit Member to access and use non-exclusive work spaces and workstations in our common areas, with access to a secure internet connection and a printer (each such space shall be referred to hereinafter as “Open Workspace”), located at any property, building, or space now or in the future owned, leased, managed or otherwise controlled by Location (each such property, building, or space shall be referred to hereinafter as “Premises”). The terms “Open Workspace”, “Premises”, “building”, “building in which such Premises are located” and any and all other similar terms describing the location of any Open Workspace, any Premises, or any building in which any Open Workspace is located shall be deemed to mean any and all Locations used by Member pursuant to this Agreement. Member acknowledges and agrees that (i) Open Workspace is not a dedicated space or private office and only entitles the Member to space in our common areas; (ii) Open Workspace is available to Member and other members of the Location on a first-come, first-served basis, and accordingly, there is no guarantee of availability of Open Workspace in any Location; and (iii) Open Workspace will be shared by Member and other members of the Location during the same day.
Member further acknowledges and agrees that Member shall not be entitled to any refunds, credits, abatements, termination rights, or other rights or remedies hereunder, and this Agreement shall remain in full force and effect, in the event that (1) any Open Workspace is not available to Member at any Location on a specific date desired by Member, or (2) the Location’s rights in thePremisesterminate or expire for any reason after the Contract Date or during the Term of this Agreement.
(b) Start Date. Member may commence reserving Open Workspace on the date specified on the first page of this Agreement as the License Start Date. Member’s payment obligations will begin on the License Start Date. The Location will provide Member with reasonable advance written notice should changes to any Open Workspace be necessary.
(c) Services. All Premises will include standard power outlets, common area restrooms and a common area kitchen. For common use within such Premises, the Location will use good faith efforts to provide certain services (collectively, the “Services”), such as access to and use of shared internet connection and printers/scanners and other services (which may vary by location) as may be described in the Member handbook provided to Member. Any or all of the Services may be provided by the Location, an affiliate of the Location, or any third party service provider designated by the Location from time to time in its sole discretion. All Services, other than shared internet connection and printers/scanners, that may be provided by or on behalf of the Location may be added, deleted, or changed at any time at the sole discretion of the Location, with or without prior notice to Member.
(d) Business Hours. Business hours for any Premises may vary by location—the hours of operation in effect will be posted at such Premises or otherwise made available to Member. The Location reserves the right to close such Premises on national holidays and on days with inclement weather at the discretion of the Location. Certain Services may be available only during regular business hours, excluding holidays. Such Premises may be accessible outside of business hours using the key card assigned to Member, in accordance with the procedures set forth in the Member handbook or other policy documents applicable to the particular Location.
(e) Software. In order to receive certain Services (including but not limited to access to the network, shared printing, etc.), Member may be required to install on Member’s computer device certain drivers or software tools (collectively, “Software”). Member acknowledges and agrees that Software may be owned, controlled, or provided by third parties, and that the installation or use of any Software may be subject to separate licenses, terms, conditions, or restrictionsThe Location provides no warranties with respect to the Software (even if provided by or through the Location), and as a condition of use of the Software, Member, on behalf of itself and its employees, agents, and invitees, waives any claim against the Location, its affiliates, and any person acting on behalf of the Location or its affiliates arising from or in conjunction with the installation or use of such Software.
(f) Specific Services. The Location will accept mail on behalf of Members at one (1) Premises location only, to be specified in advance by Member to the Location. However, the Location will not be responsible for any items received on behalf of Member. If Member expects a special delivery or package, Member must provide the Location with reasonable notice and instructions, if necessary, in order for the Location to accept such delivery. If Member’s subscription package includes a monthly allowance of conference room hours, such monthly allowance will not be rolled over from one month to the next.
(g) Maintenance. The Location will use commercially reasonable efforts to maintain all Premises in good functional condition; provided that Member is and will remain responsible for, and will indemnify, defend and hold harmless the Location, Landlord (as defined hereunder), and their respective affiliates for any and all damage to any Open Workspace, Private Office (as defined below) if applicable, Premises and/or the building in which such Premises are located, exceeding normal wear and tear, caused by Member or its agents, employees and invitees, and for the acts and omissions of Member and its employees, agents, or invitees. Member shall take good care of all parts of such Open Workspace, Private Office, Premises and/or the building in which such Premises are located, including any equipment, fixtures and furnishings, which Member is permitted to use hereunder. Member shall not alter any part of any Office Space, Premises and/or building or the Location’s equipment, fixtures or furnishings.
(h) Location Access. Member acknowledges that the Location and its designees will at all times have access to such Office Space, for purposes including but not limited to the maintenance and safety of the same and any emergency situations. The Location may temporarily move and/or replace parts and components of such Office Space in the Location’s sole discretion. Notwithstanding the foregoing, except in the case of emergency, the Location will use commercially reasonable efforts not to disrupt Member’s business in or use of such Office Space.
(i) Private Office Passes. This Agreement shall entitle Member to purchase unlimited day passes that allow the Member access to an office (each a “Private Office”) for their individual use in the Company Location (or a Private Office in the applicable Global Network locations, if Member has opted for a Global Network Pass.
Member acknowledges and agrees that: (i) Private Offices are available to Member and other members of Industrious on a first-come, first-served basis, and accordingly, there is no guarantee of availability of a Private Office in any Industrious location on any specific date; (ii) a Private Office may be shared by Member and other members of Industrious during the same day (although not at the same time without both member’s consent); (iii) Industrious may relocate any booked Private Office from time to time to a comparable Private Office in the same Premises or building in which the Premises are located; and (iv) Member shall not be entitled to any refunds, credits, abatements, termination rights, or other rights or remedies hereunder, and this Agreement shall remain in full force and effect, in the event that (1) a Private Office is not available to Member at any Industrious location on a specific date desired by Member, or (2) Industrious’s rights in any Industrious location terminate or expire for any reason after the Contract Date or during the Term of this Agreement.
Member shall be permitted to use one (1) private office pass per person per day at any Industrious location, in any combination that Member elects. For example, and not by way of limitation, in any one (1) month period, if Member subscribes to ten (10) Private Office Passes per month, Member can use (a) one (1) pass at one (1) location on ten (10) different days, (b) ten (10) passes at ten (10) different locations on the same day, or (c) five (5) passes at five (5) different locations on two (2) different days.
(j) Guests. Member shall be entitled to bring two (2) guests into the Open Workspace per month, provided however that all guests must be checked in by Industrious staff. Notwithstanding the foregoing, if Member reserves a conference room, the Member shall be entitled to have that number of guests equal to the conference room’s seating capacity (which is provided when booking the conference room), for the duration of the Member’s conference room reservation. At all times, Member shall be liable for the behavior of their guests.
(k) License Only. Notwithstanding anything herein to the contrary, this Agreement is a revocable license to access such Office Space and receive certain Services, upon the terms and conditions set forth herein. The relationship between the Location and Member is that of a licensor and licensee only, and not a landlord-tenant or lessor-lessee relationship. This Agreement will not be construed to grant Member any right, title, interest, easement, or lien in or to the Location’s business, any Office Space, any Premises, or anything contained therein, nor will this Agreement be interpreted or construed as a lease. Member acknowledges that this Agreement creates no tenancy interest, leasehold estate, or other real property interest in Member’s favor and Member hereby waives any and all claims and/or defenses based upon any such interest.
(l) Removal of Property. Upon leaving the Premises, Member will remove all of its property from the Office Space and the Premises in which such Office Space is located, leaving them in the same condition as they were in when Member first entered such Office Space and/or Premises, reasonable wear and tear excepted. Industrious will not be responsible in any way for any Property or sensitive documents that are left unattended in an Office Space the Location may remove and dispose of any of such property remaining in or at an Office Space or the Premises in any way that the Location chooses, without notice to Member (whether belonging to Member or its employees, agents, or invitees), and without waiving its right to claim from Member all expenses and damages caused by Member’s failure to remove such property, and Member and any other person or entity shall have no right to compensation from or any other claim against the Location as a result.
In the event that Member fails to remove its property from a Private Office or Premises when the Member leaves the Premises at the end at the day, in addition to any other rights and remedies Industrious has hereunder, Industrious will be entitled to charge Member the full daily rate or apply a Private Office Pass per person using such Private Office by or through Member for each day or portion thereof that Member fails to remove its property in accordance with this Agreement.
Section 2. Term and Termination of Agreement
(a) Term. The Term of this Agreement is set forth on the first page of this Agreement.
(b) Termination for Breach. The Location may terminate this Agreement in its sole discretion, effective immediately if Member or any of its agents, employees, or invitees breaches any provision in this Agreement or violates any the Location rules, policies, or codes of conduct. Provided that, if Member fails to pay any fee when due, if it is Member’s first delinquency in any twelve (12)-month period, the Location will send Member written notice of the delinquency, and Member will have five (5) days from the date of such notice to cure the delinquency by paying all amounts owed (including late fees and finance charges, as applicable). Member is only entitled to one notice and cure period per twelve (12)-month period, and for any subsequent delinquency the Location may terminate Member’s license and subscription immediately, in the Location’s sole discretion.
(c) Termination for Convenience. The Location may terminate this Agreement upon thirty (30) days’ written notice to Member in the Location’s sole and absolute discretion.
(d) Effect of Termination. Following the termination or expiration of this Agreement for any reason, Member will remain liable for all amounts due or owing as of the effective date of such termination or expiration (regardless of the date Member ceases to utilize such Office Space or such Premises). Without limiting the foregoing, if this Agreement is terminated for breach pursuant to Section 2(b) above, Member will remain liable for (x) all License Fees and any other fees owed through the remainder of the Term, and (y) the full amount of any fees that the Location paid to a broker in connection with this Agreement (“Broker Fees”). All such License Fees and Broker Fees will be due and payable immediately upon such termination pursuant to Section 2(b). In the event this Agreement is terminated for convenience pursuant to Section 2(c) above, the Location will within a reasonable time following the effective date of the termination return to Member any pre-paid License Fees or other fees applicable to the post-termination period. This Section 2 and Sections 4 through 7 of this Agreement will survive the termination or expiration of this Agreement for any reason, as will all other provisions of this Agreement that may be reasonably expected to survive such termination or expiration.
Section 3. Fees
(a) License Fees. Beginning on the License Start Date, and continuing during the Term of this Agreement, Member will pay, in advance, the monthly license fee specified on the first page of this Agreement (“License Fee”). The License Fee is due on or before the 1st of each month during the Term, provided that if the License Start Date falls on a date that is not the 1st day of the month, then on the License Start Date Member will pay the pro rata portion of the monthly License Fee for the remainder of that month. All License Fees must be paid in U.S. dollars. All amounts paid under this Agreement are nonrefundable and noncancellable, except as expressly provided herein. When the Location receives funds from Member, such funds will be applied first to any past-due balances, oldest to newest, then to any current monthly fees due and owing. License Fees are subject to change during the Extension Term (if any) as set forth in Section 7(m) hereunder.
(b) Other Fees. Where permitted under state law, credit card and debit card transactions may be subject to an extra charge (a “Surcharge”) in an amount that is commensurate with the Location’s cost to accept and process credit card and debit card transactions. Any such Surcharge will be identified on the first page of this Agreement and on the Member’s monthly invoice. Payments made by ACH will not be subject to a Surcharge. A ten percent (10%) late fee will be charged on any outstanding balance existing on the 5th day of any month. Additionally, Member may be subject to additional fees for returned checks or other declined payments due to insufficient funds, as set forth in fee schedules published or posted by the Location from time to time. Member acknowledges that all fees are subject to change from time to time at the discretion of the Location. Any late fees or charges are in addition to any other rights and remedies the Location may have for Member’s breach of this Agreement.
(c) Security Deposit. The Security Deposit must be paid in the amount and at the time set forth on the first page of this Agreement. The Security Deposit will be refunded to Member within sixty (60) days after termination of this Agreement, subject to the complete satisfaction of Member’s obligations under this Agreement, as determined by the Location in its sole discretion. The Security Deposit will be held by the Location, without liability for interest, as security for the performance by Member of Member’s covenants and obligations under this Agreement. Member acknowledges and agrees that the Security Deposit will not be considered an advance payment of the License Fee or a measure of Member’s liability for damages in case of default by Member. The Location may, from time to time and without prejudice to any other remedy, use the Security Deposit to the extent necessary to make good any arrearages of the License Fee or to satisfy any other covenant or obligation of Member hereunder. Following any such application of the Security Deposit, Member will pay to the Location on demand the amount so applied in order to restore the Security Deposit to its original amount. To the extent of any unapplied Security Deposit after the termination of this Agreement, the Location will only refund the same to Member, unless an authorized representative of Member directs the Location in writing to send the refund to another person or location. If during the Term of this Agreement, Member changes any Office Space to one(s) carrying higher License Fees, Member will deliver to the Location the incremental increase in the Security Deposit as required by the Location.
(d) Suspension of Services. The Location may withhold or suspend any Services and/or access to any Office Space and any Premises while there are any outstanding amounts due or Member is otherwise in breach of this Agreement, in addition to any other rights and remedies the Location may have. In the event that the Location withholds services from Member pursuant to the foregoing, the Location shall not be liable for any claim of business interruption or for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of such actions.
(e) Form of Payments. Payments for License Fees and other fees hereunder may be made by ACH bank transfer, most major credit cards, debit cards, and checks drawn on U.S. bank accounts. the Location may offer discounts off its regular License Fee and other fee rates for payments made by ACH bank transfer. Any such discounts will be reflected on the first page of this Agreement. Any applicable ACH discount will be refunded to Member reasonably promptly after payment is made by member in full.
Section 4. Member Obligations
(a) Background ChecksThe Location reserves the right to conduct a basic criminal and OFAC background check on any or all of Member’s owners, officers, employees and agents who will be granted access to any Premises (particularly if Member desires after-hours access for such persons), and Member agrees to use good faith efforts to assist the Location with the same, at no cost of Member. After-hours access may only be granted to those persons who pass such background check to the Location’s sole and absolute satisfaction. Member represents and warrants that neither Member, nor any of its owners, officers, employees or agents has been or will be: (a) designated as a “blocked person” as such term is described in Executive Order 13224, issued September 23, 2001 by George W. Bush, President of the United States; or (b) a person or entity described either as a Specially Designated Global Terrorist or a Specially Designated Nationals and Blocked Persons by the Office of Foreign Assets Control (“OFAC“) of the U.S. Department of the Treasury. The continued accuracy throughout the Term of this Agreement of the foregoing representation and warranty is an ongoing material condition to this Agreement and, accordingly, Member has the obligation during the Term to immediately notify the Location by written notice if the foregoing representation and warranty should ever become false. Any breach of the representation and warranty or failure on the part of Member to so update the Location constitutes a breach of this Agreement.
(b) SecurityThe Location makes no warranty or representation to Member with respect to any security services or systems and the Location expressly disclaims any liability related to the wrongful access, use or disclosure of any data or information that is processed, stored or transmitted through or by the Services, which includes without limitation, the Software. Member shall be fully responsible for the safety and security of its personal property brought into such Office Space, Premises and/or building. As between the Location and Member, Member shall also be fully responsible for any liability related to the wrongful access, use or disclosure of any data or information that is processed, stored or transmitted through or by the Services, which includes without limitation, the Software. the Location shall not be liable to Member on account of any loss, injury, liability, damage or theft to any business or personal property of Member, its owners, officers, employees, agents and invitees, other than as a result of the Location’s gross negligence or willful misconduct. Member acknowledges that all keys, key cards, key fobs, and other such items used to gain physical access to any Office Space, the Premises in which such Office Space is located, or the building in which such Premises are located, remain the property of the Location, or its landlord or the owner of such Premises or each of their respective affiliates (as applicable, “Landlord”). The term “Landlord” shall be deemed to mean each and every Landlord at any Premises used by Member pursuant to this Agreement. Member will not attempt to (or allow others to) gain unauthorized access to any computer systems located at or serving any Premises or any content or data of the Location, other members, or any other person. Neither Member nor any of its agents, employees or invitees are permitted to enter any other office space in any Premises. Member will use its best efforts to safeguard all Premises and Location’s property and will be liable for all costs and expenses should any such property be lost or damaged as a result of Member’s and/or its employees’, agents’ or invitees’ acts or omissions. Member is solely responsible for maintaining all necessary security and control of any and all user names, passwords, or any other credentials issued to or used by Member or its employees, agents or invitees, for use with Location’s computer systems, networks, or other Services provided under this Agreement. Member will not allow (and will instruct its employees and agents to not allow) a party unknown to them to enter any Office Space or any Premises and acknowledges that such action may result in the termination of this Agreement. Member is and will remain responsible for the actions or omissions of all persons that Member or its employees, agents or invitees allow or invite to enter any Office Space or any Premises.
(c) Complaints. Member agrees that all issues and complaints relating to any Office Space or other members will be directed solely to the Location. Member will have no direct access to or communication with the Landlord (if other than the Location), and Member agrees not to send any complaints or demands to the Landlord directly.
(e) Rules and Policies. Additional rules may be set forth in the Member handbook or other policy documents applicable to each Location, which are subject to change from time to time in Location’s sole discretion. Member agrees to abide by all rules and policies as determined by the Location from time to time, whether communicated to Member verbally, by email, other written notice or public posting. Without limiting the foregoing, the Location may require Member and each of its owners, officers, employees, agents and invitees who will be granted access to such Premises to agree to and sign Location’s Anti-Harassment Policy prior to using any Office Space or Services.
(f) Prohibited Conduct. In addition to any other applicable rules and policies issued by the Location, Member agrees to the following terms and conditions:
(i) No Assignment or Sublicense. Member may not sell, lease, license, distribute or grant any interest in any Office Space or any of the Services to any third party. Further, Member may not assign this Agreement in whole or in part, or otherwise transfer, sublicense or otherwise delegate any of Member’s rights or obligations under this Agreement, to any third party.
(ii) No Alterations. Member may not alter any Office Space or Premises in any manner or attach or affix any items to the walls, floors or windows, without the prior written consent of the Location.
(iii) No Unapproved Items. Member may not store any of its property or materials in any area of any Premises. Member may not bring any additional furniture, furnishings or decorations into any Premises or Office Space or install any satellite or microwave antennas, dishes, cabling or telecommunications lines in any Premises or Office Space without the prior written consent of the Location in its sole discretion. Member acknowledges that carts, dollies and other freight items may not be used in the passenger elevator except by appointment made with the Location, at Location’s sole discretion.
(iv) No Retail Use. Member will use such Office Space solely as general office space in the conduct of Member’s business and for no other use whatsoever. Use of such Office Space for retail, medical or other type of business involving frequent visits by members of the public, manufacturing, or for any other use prohibited by the Member handbook is not permitted. Regular use of any Office Space is limited to those persons subject to background checks as set forth in this Agreement.
(v) No Illegal Activities. Member may not use any Premises, any Services, or any the Location computer systems or networks to conduct or pursue any illegal activities, including but not limited to, downloading, distributing or viewing any illegal content, engaging in any activity in violation of OFAC regulations, and/or illegally downloading any copyrighted content, or any other activity that violates any intellectual property rights, and any such conduct using any Premises or Location’s systems or networks may result in immediate termination of this Agreement.
(vi) No Offensive Behavior. Member may not conduct any activity in any Office Space, Premises and/or building in which any Premises are located that is harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise generally regarded as offensive to other people, including but not limited to, involvement in hate groups or activities involving pornographic or sexually explicit materials or obscenities, whether written, oral, or in any form or medium. Member will refrain from any activities that may be disruptive, a nuisance or an annoyance, including but not limited to, acts of disorderly nature or excessive noise. Member may not conduct any activity which may be hazardous to other persons in the buildingThe Location may determine at its sole discretion what activities may be deemed offensive, disruptive or hazardous.
(vii) No Malware, Spamming. Member may not upload any files that Member knows or suspects to contain or may contain viruses, Trojan Horses, worms, time bombs, corrupted files, or any other malicious code, whether known or unknown that may damage or disrupt Location’s or any other person’s computer systems or networks. Member will take precautions to prevent the spread of viruses, including but not limited to, using up-to-date anti-virus software, enacting policies to avoid opening suspicious emails, and avoiding suspicious websites. Spamming other members or any other persons is strictly prohibited, and any such conduct using any Premises or Location’s systems or networks may result in immediate termination of this Agreement.
(g) Personal Information. Member represents and warrants that it has obtained the necessary authorizations and consents for any personal information it processes through the Services, which includes without limitation, the Software.
Section 5. Intellectual Property and Confidentiality
(a) Trademarks. Member may not use Location’s name, logo, trademarks, service marks or domain names (collectively, “the Location Marks”) in any way in connection with Member’s business, without the express written consent ofthe Location, in its sole discretion. Member will comply with all standards established bythe Location from time to time with respect to the Location Marks. Member hereby acknowledges and agrees that all right, title, and interest in and to the Location Marks belong to the Location, and that all usage and goodwill of the Location Marks will inure only to the benefit of the Location. Member will not use, register, or attempt to register any trademarks or domain names that are confusingly similar to the Location Marks, nor use the Location Marks in any manner that would indicate that Member has any rights thereto. If consent to use the Location Marks is granted as set forth above, the Location reserves the right to revoke Member’s rights to use the Location Marks at any time in Location’s sole discretion.
(b) Publicity. Member may use the address of one (1) Premises location only, to be specified in advance by Member to the Location as its business address, but only during the Term of this Agreement. Notwithstanding the foregoing, Virtual Services Members may only use Company location member has inputted on the Access eCheckout Portal as its business address. Member may not use photos or illustrations of any Premises, or any the Location Marks, in any of Member’s marketing materials or in any other manner without the express written consent of the Location. Further, no press release, advertising, sales literature or other publicity statements relating to the existence or substance of this Agreement or the relationship of the parties may be made by Member without the prior written approval of the Location. Member grants the Location and its affiliates the right to use Member’s trade name(s), logos and/or trademarks in Location’s materials prepared for its shareholders or members, or prospective shareholders or members.
(c) Member DirectoryThe Location may place Member’s name and contact information in a directory of the Location members; provided that Member will be given the opportunity to “opt-out” of such listing which it may do at any time.
(d) Photo and Video Shoots. Member acknowledges that promotional photography and/or video recording (a “Shoot”) may occur in any Premises (but not within any reserved Private Space) from time to time. the Location will provide Member with reasonable advance notice of any such Shoot, and at such time Member may request that the Location endeavor to avoid capturing Member’s name, likeness, image, voice and/or appearance in the background any such recordings. the Location will use commercially reasonable efforts to comply with Member’s request. Subject to the foregoing, by entering that portion of such Premises in which a Shoot is taking place, Member and Member’s employees, agents, and invitees consent to such photography and/or video recording and the release, publication, exhibition or reproduction of such recordings in which they may appear for promotional purposes by the Location and its affiliates and representatives. Subject to the foregoing, Member and its employees, agents, and invitees each hereby releases and discharges the Location and its agents, representatives, and assignees from any and all claims and demands arising out of or in connection with the use of the name, likeness, image, voice, or appearance of Member or any of its employees, agents, or invitees, including any and all claims for invasion of privacy, right of publicity, misappropriation, misuse, and defamation. Member represents and warrants to the Location that its employees, agents, and invitees will have been informed of and agreed to this consent, waiver of liability, and release before they enter that portion of such Premises in which a Shoot is taking place.
(e) Sensors. Member acknowledges that the Location does or may utilize sensors that record usage of any Premises, excluding any Private Office, and amenities (the “Sensors”), and consents to the use of the Sensors. The Sensors monitor, among other things, the number of people utilizing a particular space or amenity, the times that a particular space or amenity is used, etc. Low resolution images may be captured, which will be processed by automated software, for the purpose of counting people and upon the completion of said task, the image will be deleted. No sound recordings will be made or captured and no high resolution photographs or videos will be taken. The data collected is anonymous aggregated data. Prior to the implementation of any sensors, the Location will contractually prohibit vendors of any sensors used from combining any anonymous aggregated data with other data in any manner that could make it personally identifiable data. the Location will use the data collected for improving or developing its service or products, or for any other lawful business purpose. Subject to the foregoing, Member and its employees, agents, and invitees each hereby release and discharge the Location and its agents, representatives, and assignees from any and all claims and demands arising out of or in connection with the use of the Sensors, including any and all claims for invasion of privacy, right of publicity, misappropriation, misuse, and defamation. Member represents and warrants to the Location that its employees, agents, and invitees will have been informed of and agreed to this consent, waiver of liability, and release before they enter that portion of such Premises in which the Sensors are being used.
(f) Confidential Information. Member may receive or learn certain confidential information about the Location or Location’s other members, including without limitation, information regarding its or their business operations, business and marketing plans, pricing, technology, finances and methods (collectively, “Confidential Information”). Member agrees to hold all Confidential Information, whether belonging to the Location or its other members, in strict confidence and to take all reasonable precautions to protect such Confidential Information. All terms and conditions of this Agreement (including, without limitation, pricing-related information) shall be deemed Confidential Information. Member acknowledges that any disclosure or unauthorized use of Location’s Confidential Information will constitute a material breach of this Agreement and cause substantial harm to the Location for which damages would not be a fully adequate remedy. In the event of any such breach, the Location will have, in addition to any other available rights and remedies, the right to injunctive relief (without being required to post any bond or security). If an employee or agent of the Location becomes aware of any Confidential Information of Member, the Location agrees to cause such employee or agent to hold such Confidential Information in strict confidence and to take all reasonable precautions to protect such Confidential Information, except any disclosure required by law, court order or in connection with a breach of this Agreement by Member.
Section 6. Liability
(a) Waiver of Claims. Member will be solely responsible for maintaining the insurance coverage required hereunder and Member will look solely to such insurance for any and all claims, damages, costs, expenses, liabilities and rights it may have, except to the extent arising or resulting from the gross negligence or willful misconduct of an the Location Party (defined hereunder). To the maximum extent permitted by law, Member, on its own behalf and on behalf of its owners, officers, employees, agents and invitees, hereby Waives (as defined hereunder) any and all claims, actions, damages, costs, expenses, liabilities and rights against the Location, Landlord, their respective affiliates, and each of their respective past, present and future principals, members, assignees, managers, directors, officers, employees, agents, successors and assigns (each an “Location Party” and collectively, “Location Parties”) arising or resulting from (i) any injury or damage to, or destruction, theft, or loss of, any tangible or intangible property located in or about any Office Space, any Premises or the building in which such Premises are located, (ii) any personal injury, bodily injury or property damage (as such terms are defined by insurance regulations) occurring in or at any Office Space, any Premises or the building in which such Premises are located, (iii) the wrongful access or use of any data or information, or (iv) any loss of use or interruption of Member’s business or any interruption or stoppage of any Service, except to the extent arising or resulting from the gross negligence or willful misconduct of an the Location Party. For purposes of this Agreement, “affiliates” of the Location or of Landlord include any person or entity that controls, is controlled by, or is under common control with the Location or Landlord, respectively, including without limitation, any subsidiaries or parent companies; and the term “Waives” means that Member, and its owners, officers, employees, agents and invitees waive and knowingly and voluntarily assume the risk of.
(b) Disclaimer of WarrantiesThe Location expressly disclaims and excludes all warranties, whether express, implied or statutory, with respect to any Office Space, any Premises and the Services provided by or on behalf of the Location, including but not limited to, any warranty of merchantability, fitness for a particular purpose, non-infringement, habitability, or quiet enjoyment, or any warranties that may have arisen or may arise from course of performance, course of dealing or usage of tradeThe Location makes no representations or warranties regarding the quality, reliability, timeliness or security of any Office Space or any Services provided by or on behalf of the Location, or that any Services will be uninterrupted or operate error free. Such Office Space, Premises and Services provided by the Location are provided “as is” and “with all faults”, on a first-come, first-served basis without any guarantee as to availability on a certain date or in a certain Location.
(c) Limitation of Liability. The aggregate monetary liability of the Location Parties to Member, its owners, officers, employees, agents and invitees for any reason and for all causes of action, whether in contract, in tort, or otherwise, not otherwise waived as set forth above, will not exceed the total fees paid by Member to the Location under this Agreement during the twelve (12)-month period prior to the date on which the cause of action accrued. Notwithstanding anything herein to the contrary, in no event will any the Location Party be liable for any claim or cause of action, whether in contract, in tort, or otherwise for any indirect, special, consequential, exemplary, or punitive damages, including but not limited to, loss of profits or business interruption, even if the Location has been advised of such damages. Member acknowledges that Location’s obligations under this Agreement are consideration for the foregoing limitations of liability. The limitations, waivers, disclaimers and exclusions in this Agreement apply to the maximum extent allowed by law, even if a remedy fails its essential purpose.
(d) Limitation of Actions. To the extent not otherwise waived as set forth above, unless otherwise prohibited by applicable state or federal law, Member must commence any action, suit or proceeding against any the Location Parties, whether in contract, tort, or otherwise, within one (1) year of the cause of action’s accrual and Member, on its own behalf and on behalf of its owners, officers, employees, agents and invitees, hereby Waives any claims not brought within such time period.
(e) Indemnification. Member will indemnify, defend and hold harmless each of the Industrious Parties from, and against any and all actual claims, actions, proceedings, damages, liabilities, costs and expenses of every kind, whether known or unknown, including but not limited to reasonable attorney fees (collectively, “Claim(s)”), to the extent resulting from or arising out of (i) any breach of this Agreement by Member or Member’s owners, officers, employees, agents, or invitees; or (ii) any actions, errors, omissions, negligence, willful misconduct or fraud of Member or Member’s owners, officers, employees, agents or invitees. If any such Claim is brought against any of the Industrious Parties, Member will defend the Claim at Member’s expense, upon written notice from Industrious, using counsel approved by Industrious in writing, such approval not to be unreasonably withheldThe Location Parties’ refusal to consent to a settlement shall not be deemed unreasonable when the proposed settlement requires or results in the Location Parties, or any one of them, admitting to any wrongdoing or liability.
(f) Insurance Requirements. Member, at its expense, will maintain at all times during the Term of this Agreement reasonable and customary insurance policies for the size and scope of Member’s business. All insurance policy(ies) required to be carried by Member must (1) name, as additional insureds, the Location and its Landlord(s) (including any master landlord and their respective lender(s)), or other persons with responsibility for such Premises whom the Location may designate in writing to Member, and (2) be endorsed to waive all rights of subrogation against the Location and its Landlord(s). Upon request from the Location, Member will promptly provide proof of insurance in the form required above. Further, Member, on its own behalf and on behalf of its employees, agents and invitees, hereby releases the Location from any liability resulting from, and agrees to waive all rights of recovery against the Location Parties, on account of any and all claims it may have against the Location Parties, and shall cause its insurance company to waive all such claims by way of subrogation or otherwise. If Member fails to maintain any insurance required hereunder, Location’s failure to take any action regarding such breach, including but not limited to, requesting or requiring proof of the existence of any such insurance at any time, and/or providing notice to Member of any such non-compliance, will not be considered or construed in any manner as a waiver of any rights of the Location for such breach, nor will such failure of Member to carry any such insurance or such failure of the Location to take any action with regard to such breach impose any obligation or liability on the Location in any mannerThe Location reserves the right, but will not be obligated, to purchase any required insurance on behalf of Member, at Member’s expense. If Member fails to carry any required insurance and a Claim occurs that would otherwise be covered by Member’s insurance, the Location, without imposing any liability on the Location or waiving any rights the Location has with regard to Member’s breach, may, but will not be obligated to, make a claim under any insurance policy carried by the Location to cover such Claim, in which event Member will be liable to the Location for all costs and expenses of the Location to cover such Claim, including, but not limited to, the applicable deductible and a reasonable portion of the premium as determined by the Location. the Location, at its expense, will maintain during the Term insurance in such amounts as required under Location’s lease, management agreement or other agreement to operate and manage such Premises as co-working space with its Landlord for such Premises (as applicable, the “Lease”). The term “Lease” shall be deemed to mean each and every Lease at any Premises used by Member pursuant to this Agreement.
(g) Non-Solicitation. Member will not, during the Term of this Agreement and for a period of one (1) year thereafter, solicit the employment of any officer, employee, contractor, subcontractor or service provider of the Location, which causes such person, directly or indirectly, to decrease or terminate its employment or business with the Location. If Member hires any employee, contractor or subcontractor of the Location during the period described, Member will pay to the Location an amount equal to such person’s annual salary with or fees from the Location. Notwithstanding the foregoing, nothing in this paragraph shall restrict or preclude Member from hiring any person who responds to a general solicitation of employment through an advertisement not targeted specifically at the Location or its employees.
Section 7. General
(a) Breach of Agreement. In the event of a breach of this Agreement by Member, the Location will have any and all rights and remedies available to the Location as set forth in this Agreement, at law and/or in equity, including without limitation, recovery of all court costs and reasonable attorneys’ fees incurred by the Location in pursuing such remedies, whether legal action is filed or not, all of which rights and remedies are cumulative and not exclusive of each other.
(b) Entire Agreement. This Agreement, including all schedules and attachments incorporated by reference, sets forth the entire understanding of the parties relating to its subject matter, and all other understandings, written or oral, are superseded. This Agreement will also be deemed to include all policies, procedures, and requirements published by the Location from time to time, with which Member hereby agrees to comply. Except as otherwise provided in this Agreement, this Agreement may not be amended except in a writing executed by both parties.
(c) Subordination. Notwithstanding anything herein to the contrary, this Agreement is at all times subject and subordinate to each Lease with each Landlord at any Premises used by Member pursuant to this Agreement and to any other agreements to which each such Lease is subject or subordinate. Member acknowledges that Member has no rights under any Lease.
(d) Governing Law; Venue. This Agreement is governed by the laws of New York, without giving effect to any conflict of law principle that would result in the laws of any other jurisdiction governing this Agreement. Except that either party may seek equitable relief from any court of competent jurisdiction located in New York County, New York, any dispute arising out of or relating to this Agreement—including the breach, termination, and validity of this Agreement, and the arbitrability of any claim—that cannot be resolved amicably by mutual agreement shall be finally settled by confidential and binding arbitration 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 New York County, New York. In any action, suit or proceeding between the Location and Member, including any appellate or alternative dispute resolution proceeding, to enforce rights under this Agreement, the prevailing party shall be entitled to recover from the non-prevailing party, in addition to any other relief awarded, all of its costs and expenses in connection therewith, including, but not limited to, reasonable attorneys’ fees.
(e) Class Action Waiver. Any proceeding to resolve any dispute relating to or arising under this Agreement in any forum will be conducted solely on an individual basis. Neither party will assert any claim (including counterclaim) against the other in arbitration or litigation on a class or consolidated basis, and neither party will pursue or participate in any claim against the other in a representative or private attorney general capacity. No proceeding will be combined with another without the prior written consent of all parties to all affected proceedings. This class action waiver precludes the Location and Member from pursuing, participating in, or being represented in any class, consolidated, or representative action regarding any claim against the other.
(f) Waivers. Neither party will 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, and then only to the extent specifically set forth in writing. No delay or omission by any party in exercising any of said rights or remedies shall operate as a waiver thereof. Further, one or more waivers of any covenant or condition by either party will not be construed as a waiver of a subsequent breach of the same covenant or condition, and the consent or approval by either party to or of any act requiring such consent or approval will not be deemed to render unnecessary future consent or approval to or of any subsequent similar act.
(g) Relationship of the Parties. The parties to this Agreement are independent contractors and will not be considered agents, employees, servants, joint venturers, or partners of one another. Neither party has the authority to bind the other party except as explicitly set forth in this Agreement, and neither party will make any representation or warranty otherwiseThe Location will have no responsibility for any fee or expense incurred by Member in connection with either party’s performance this Agreement, or provision or use of the Services.
(h) Successors and Assigns. In the event of any transfer or transfers of the Location’s interest in any Premises, the Location will automatically be relieved of any and all respective obligations accruing from and after the date of such transfer with respect to such Premises. Following any such transfer(s), all rights, obligations and interests of the Location under this Agreement will apply to, inure to the benefit of, and be binding on any such successors and assigns of the Location with respect to such Premises.
(i) No Third-Party Beneficiaries. Except for third parties entitled to indemnity under this Agreement or third parties whose liability is specifically limited pursuant to the terms of this Agreement, the parties to this Agreement do not intend to confer any right or remedy on any third party.
(j) Force Majeure. Neither party is 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 Member’s obligation to pay any sum due to the Location hereunder, including without limitation, the License Fees, which obligation will remain unaffected by the provisions of this paragraph) as a result of any causes or conditions that are beyond such party’s reasonable control and which such party is unable to overcome by the exercise of reasonable diligence, provided that the affected party will use commercially reasonable efforts to promptly resume normal performance. For the avoidance of doubt, Member’s payment obligations under this Agreement remain unaffected by circumstances beyond Location’s reasonable control, including public health crises (such as COVID-19) and public health measures in response thereto.
(k) Severability. If a provision of this Agreement is determined to be unenforceable in any respect, the enforceability of the provision in any other respect and of the remaining provisions of this Agreement will not be impaired.
(l) Notices. Unless expressly specified otherwise herein, all notices, requests, demands and other communications to be delivered hereunder will be in writing and delivered in person, by nationally recognized overnight carrier, or by registered or certified mail, return-receipt requested and postage prepaid, to the following addresses: if to the Location, to: the Location, Attn: Counsel, 215 Park Avenue South, Suite 1100, New York, NY 10003; and if to Member: to the address provided by Member upon execution of this Agreement. All notices will be deemed effective as of the date of confirmed delivery or refusal of receipt. In addition to the foregoing methods, notices from the Location to Member may also be delivered by email to the email address provided by Member upon execution of this Agreement. Notices of non-renewal by Member may, at the Member’s option, be delivered by email to the Location email address provided to Member upon execution of this Agreement. Delivery of notices by email hereunder will be deemed effective upon transmission. Each party may update its respective address and/or e-mail address from time to time upon written notice to the other. Member must promptly provide the Location with any change of address, e-mail address and other contact information (including phone number). Member agrees to accept community-wide emails sent out to all members by the Location from time to time, which will be the responsibility of Member to review.
(m) Updates to Agreement; License Fee Changes. Notwithstanding any other provision in this Agreement, the Location may from time to time update the terms of this Agreement by providing at least thirty (30) days’ notice to Member; provided that such updates shall not materially interfere with Member’s rights under this Agreement or impose any additional material obligations on Member. Member acknowledges that Member’s continued use of such Office Space and/or Services beyond such thirty (30)-day period will constitute acceptance of such updated terms. In addition, License Fees are subject to change from time to time during the Extension Term, if any, in Location’s sole discretion upon sixty (60) days’ written notice, provided that price adjustments will not exceed ten percent (10%) at a time. Member acknowledges that the Location may serve notice of any changes to Services, fees (other than License Fees hereunder) or other updates through community-wide emails sent out to all members or through notices posted at such Premises, and Member agrees to accept and review such community-wide notices.
(n) Accord and Satisfaction. No payment by Member or receipt by the Location of a lesser amount than required hereunder will be deemed to be other than on account of the earliest amounts due hereunder, nor will any endorsement or statement on any check or any letter accompanying any check or payment be deemed an accord and satisfaction and the Location may accept such check or payment without prejudice to its rights to recover the balance of such amounts or pursue any other rights and remedies it has under this Agreement.
(o) Time of Essence. Time is of the essence with respect to the performance of each of Member’s obligations under this Agreement.