1. THE FOLLOWING TERMS AND CONDITIONS APPLY TO ALL MEMBERSHIPS:
A) Memberships are on a first come, first served basis.
B) All activity inside Flywheel should be of a legal business nature only. Any non-business use is reason for immediate membership revocation.
C) Members are not allowed to make retail sales from the Flywheel facility, nor are members allowed to operate any manufacturing equipment of any kind inside Flywheel.
D) All members must comply with all legal requirements to obtain applicable municipal and/or state/county business licenses and any required professional licenses. Members must provide copies of such licenses to representatives of Flywheel upon request.
2. DESCRIPTION OF SERVICES: Flywheel may provide you with access to office space, work stations, Internet access, office equipment, conference space, knowledge resources, and other services that may be offered from time to time (collectively, “Services”). The Services at all times are subject to the Terms and Conditions.
3. NO UNLAWFUL OR PROHIBITED USE: As a condition of your use of the Services, you will not use the Services for any purpose that is unlawful or prohibited by these terms, conditions, and notices. You may not use the Services in any manner that could damage, disable, overburden, or impair any Flywheel server, or the network(s) connected to any Flywheel server, or interfere with any other party’s use and enjoyment of any Services. You may not attempt to gain unauthorized access to any Services, or accounts, computer systems or networks connected to any Flywheel server or to any of the Services, through hacking, password mining or any other means. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Services.
4. AUTHORIZATION: You hereby represent and warrant that you have all requisite legal power and authority to enter into and abide by the terms and conditions of this agreement and no further authorization or approval is necessary. You further represent and warrant that your 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 you are a party.
5. INTERNET POLICY: Wireless access to the Internet is provided during your membership. Hardwired data ports may be requested on a charge basis to the member. Service interruptions, if they occur, will be handled as promptly as possible. Flywheel is not
responsible for any data, business or other losses as a result of such interruptions. You are responsible to protect your own computer and data from electrical surges, theft, virus or other malicious attack. Flywheel is not responsible for any security breach of your computer or your data. Unless otherwise set forth by Flywheel in writing, you are receiving a single user account solely for your use of the Services through one unit per login session. You agree not to resell any aspect of the Service, whether for profit or otherwise, share your IP address or ISP Internet connection with anyone, or to authorize any other individual or entity to use the Service. You agree that sharing the Service with another party breaches these Terms and Conditions and may constitute fraud or theft, for which Flywheel reserves all rights and remedies. You have no proprietary ownership rights to a specific IP or other address, log-in name, or password that you use on our network. Flywheel may change your address, log-in name, or password at any time. Flywheel will assign you an IP address each time you access the Service and it will vary. You may not assign your address, log-in name, or password to any other person.
6. USE OF SERVICES: You agree that when participating in or using the Services, you will NOT:
A) Use the Services in connection with contest, pyramid schemes, chain letters, junk email, spamming or any duplicative or unsolicited message (commercial or otherwise);
B) Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others:
C) Publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, obscene, indecent or unlawful topic, name, material or information on or through Flywheel Services.
D) Upload, or otherwise make available, files that contain images, photographs, software or other material protected by intellectual property laws, including, by way of example, and not as limitation, copyright or trademark laws (or by rights of privacy or publicity) unless you won or control the rights thereto or have received all necessary consent to do the same;
E) 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;
F) Upload files that contain viruses, Trojan Horses, worms, time bombs, cancelbots, corrupted files, or any other similar software or programs that may damage the operation of another’s computer or property of another;
G) Download any file(s) that you know, or reasonably should know, cannot be legally reproduced, displayed, performed, and/or distributed in such manner;
H) Restrict or inhibit any other use from using and enjoying the Services;
I) Violate any code of conduct or other guidelines which may be applicable for any particular Service (including rules for The Innovation Quarter and/or Davidson College and/or the Hurt Hub@Davidson)
J) Harvest or otherwise collect information about others, including email addresses, without the authorization or consent of the disclosing party;
K) Violate any applicable laws or regulations; and
L) Create a false identity for the purpose of misleading others.
7. PARTICIPATION IN OR USE OF SERVICES: You acknowledge that you are participating in or using the Services at your own free will and decision. You acknowledge that Flywheel does not have any liability with respect to your access, participation in, use of the Services, or any loss of information resulting from such participation or use.
8. MONTHLY MEMBERSHIPS: Monthly memberships are paid a month in advance. Payment constitutes membership renewal. All payments are non-refundable. Failure to timely pay the membership fee will result in fees and/or immediate termination of Member’s membership and termination of access to the facility.
9. CANCELLATION: Monthly memberships will automatically be renewed until such time as the member gives written notification to the Community Manager of their intent to cancel by the 15th day of their final month. Weekly memberships will automatically be renewed until such time as the member gives written notification at least one week in advance of intended cancellation date. Enclosed plan memberships must give a 30-day cancellation notice to avoid being charged for the next month.
10. DAILY PASS: Payment for daily fee is required at the time of entry. Daily fees may not be prorated or refunded. Balances on printing/copying/supplies etc. are due upon checkout at the end of the rental period. Daily Pass members must checkout by 5:00 p.m. each day.
11. RECIPROCITY: Your Flywheel membership is for your designated home location and includes reciprocal use of any other Flywheel location. Other Flywheel locations may be used for up to three days per month of available open plan seats at no charge. Thereafter, day pass rates will apply.
12. REPRESENTATIONS AND WARRANTIES: By signing the Flywheel Membership Application and Agreement, Member agrees to the following:
A) To use the co-working space to conduct only legal business activities.
B) To be mindful and courteous to fellow members of Flywheel and to abide by the Community Protocols.
C) To be responsible for any damage to the Premises, equipment and contents (i.e. furniture) of any Flywheel facility caused by Member or Member’s guests. Any damage must be reported to a Flywheel representative immediately.
D) To leave the space in proper order, with all paper, cups, trash, etc. disposed of in trash or recycling receptacles.
E) To immediately report any conflicts that arise between Member and other members of Flywheel to a Flywheel representative.
F) To provide and submit to Flywheel such information regarding Member’s business as may be requested from time to time, including, but not limited to certain standard recurring reports requested of members of Flywheel.
13. SMOKING: Smoking is not permitted in the Flywheel facility. Member may ask at Reception Desk for directions to a designated smoking area.
14. COLLABORATION: Co-working provides a means for independent business operators to share information and collaborate on projects. This type of sharing and collaboration among members is highly recommended and encouraged.
15.1 Member agrees that Flywheel is in no way responsible for any personal injuries, property damage, lost or stolen items, or other liabilities that may be incurred during Member’s use of the facility. Thus, Member agrees to release, indemnify and hold Flywheel and its affiliated organizations harmless of any such claims, damages, losses, or expenses and releases them from any liability whatsoever related to Member’s use of Flywheel. Additional indemnification terms are found in the Supplemental Terms and Conditions.
15.2 Member hereby agrees to defend, indemnify, and hold Flywheel and its affiliated organizations harmless from and against any damages, loss, claim, suit and expense, including attorney fees and legal expenses, occasioned by or arising out of any claim for death, damage, or otherwise, which results from Member’s use of Flywheel, and defect or alleged defect in the Flywheel facility, or the fault or negligence of Flywheel. Additional indemnification terms are found in the Supplemental Terms and Conditions.
15.3 Furthermore, Member hereby agrees to defend, indemnify and hold Flywheel and its affiliated organizations harmless from and against any damages, loss, claim, suit, and expense, including attorney fees and legal expenses, resulting from any act or omission of Member or its guests while on or near the Flywheel facility. Additional indemnification terms are found in the Supplemental Terms and Conditions.
16. CANCELLATION BY FLYWHEEL. Flywheel has the right to deny or cancel memberships as it deems necessary for any reason whatsoever and Member agrees to promptly remove any of Member’s property from the facility upon notice of cancellation of membership.
17. CONFERENCE ROOMS: Members whose membership provides for conference room time must schedule the use of a conference room through Flywheel’s online reservation system. Other members may schedule use of the conference rooms for an additional fee. Only business- related activities are permitted in the conference room at all times. Unused monthly allowance of conference space cannot be accrued or transferred. Conference rooms must be reserved in advance. “No-Shows” will be charged for the full time the room was reserved. Reservations can be cancelled up to 4 hours in advance without incurring “no-show” charges.
18. SECURITY: Flywheel is not responsible for the security of any member or its guests. Member acknowledges its own responsibility for its security at all times while in or near the Flywheel facility.
19. BUILDING ENTRY: Indeavor members are able to enter the building between 9:00 am and 5:00 p.m. Monday through Friday through the front entrance, except for standard holidays and special occasions. Members whose membership provides for after-hours entry will be assigned card access to enter the building seven days a week, hours as designated in the Supplemental Terms and Conditions. Members with access cards agree to keep those cards secured and confidential at all times and refrain from sharing them with any other party whatsoever. Any member who does so will be subject to immediate termination of membership. Non-members can enter the building during staff hours only, 9 am – 5 pm, unless they are the guest of a member and the member is present.
20. PRINT/COPY/FAX MACHINE: Use of the print/copy/scan machine in Flywheel is available to all space users both member and non-member. Members receive a predetermined number of free black and white and color copies per month after which members submit self-payment online. Non-members submit self-payment online. Prices for prints/copies/scans will be posted in the copy center. Unused monthly allowance of prints/copies cannot be accrued or transferred.
21. POSTAGE: Members can purchase First Class/Forever stamps at the Reception Desk, keeping in mind that a limited supply is kept on hand. For large quantities, or denominations other than First Class postage, Flywheel recommends visiting the downtown location of the US Post Office. Stamps can also be ordered online at www.usps.com , expect 2-4 days for delivery.
22. SHIPPING: Flywheel encourages members to purchase postage for shipping on-line with Click-n-Ship at www.usps.com. The US Postal Service offers many options for delivery, including Priority Express Overnight, and offers a discount for parcel postage purchased online. Payment can be made with credit/debit card or PayPal. Bar-coded labels with address and postage can then printed for you to affix to your package. Some USPS flat rate boxes are available at Flywheel; see the Concierge or check the Copy Center.
23. RECEPTION SERVICES: If a call is received for a member at the Reception Desk, a message will be forwarded to the member by e-mail. Members are required to meet their guests at the main lobby entrance to provide access to the building and direct them to the correct meeting space. Members are asked to notify the Reception Desk when they are expecting special guests so they can be directed according to the member’s wishes.
24. MOBILE DEVICE USE: In the interest of maintaining a peaceful, productive environment, Flywheel requires that all members, guests, and Members turn their phones, tablets, laptops and other such mobile devices to vibrate while on the premises. We ask that you use a Phone Booth for calls longer than 3 minutes.
25. PHONE BOOTHS: Phone Booths are set aside for private telephone conversations. These rooms may not be reserved, and members must be respectful of other members who may also need to use the space by keeping their use to the minimum time necessary. It is expected that members will use their own mobile devices for these calls.
26. SECURE WI-FI: Internet access for members is available by WI-FI throughout Flywheel. Access codes will be provided to eligible members. Members who utilize such access in an inappropriate way may have access revoked. Guests of members are asked to use the Guest network.
27. INSURANCE: Flywheel carries Liability and Business Personal Property insurance. Flywheel’s insurance does not extend any coverage to Flywheel members. Flywheel members are not required, but it is strongly suggested that they carry an insurance policy to cover their own equipment and personal property when using our space. Consult with the carrier of your homeowner’s or business insurance to verify coverage.
28. MAIL: Member may use the mailing address provided on the attached Supplemental Terms & Conditions for all business-related correspondence needs.
29. TEMPERATURE: The temperature is preset so please do not attempt to adjust it. Attempting to do so is a specific violation of this Agreement that may result in immediate termination of membership. If adjustment is required, notify the Concierge Desk for assistance.
30. SIGNS: Space is provided on the Member Wall for each member to display their business identity. Other than this provision, Member shall not display any sign on the exterior or interior of the premises without the prior written permission of Flywheel.
31. TERMINATION: Flywheel may terminate any membership at any time for any reason, provided reasonable notice of such termination is provided to the member. Provided, however that to the extent these Terms and Conditions provide for immediate termination of membership, no additional notice must be provided to the member whose membership is terminated.
32. WARRANTY: Member specifically recognizes and acknowledges that any business venture to be undertaken by Member depends upon the ability of Member as an independent businessperson, as well as other factors, such as market and economic conditions, beyond the control of Flywheel and Member. Member acknowledges success or failure of Member’s business enterprise will be dependent upon the business acumen and diligence of Member. Member specifically recognizes and stipulates that success or failure of Member’s business will not depend on the performance of Flywheel or its affiliates under these Terms and Conditions, and Flywheel makes no representation or warranty whatsoever as to the success of Member’s business.
33. INTELLECTUAL PROPERTY: Member may not, without the prior written consent of the named entity, use any of the following names in any advertising, brochures, or promotional materials: Flywheel, Wildfire, Workplace Strategies, Inc., Storr Office Environments, and Wake Forest University Innovation Quarter.
A) Members may not place anything, or allow anything to be placed, in the common areas, in any office or meeting space, or near the glass or any window, door, partition or wall which may in Flywheel’s judgment, appear unsightly from the common areas or from the outside of any building in which the Premises are situated (“Building”). For purposes of this Agreement, Premises shall mean either, individually or collectively, the premises located at Winston-Salem, NC or at Davidson, NC.
B) The sidewalks, halls, passages, exits, entrances, elevators, and stairways shall not be obstructed or used for any purposes other than for ingress to and egress from the Premises. The halls, passages, exits, entrances, elevators, and stairways are not for the use of the general public and Flywheel shall, in all cases, retain the right to control and prevent access thereto by all persons whose presence in the judgment of Flywheel, reasonably exercised, shall be prejudicial to the safety, character, reputation and interests of the Building.
C) Members shall not cause any unnecessary janitorial labor or services by reason of their carelessness or indifference in the preservation of good order and cleanliness.
D) Members shall not bring upon, use or keep in the Premises or the Building, any kerosene, gasoline, or flammable or combustible fluid or material, or use any method of heating or air conditioning other than that supplied by Flywheel.
E) Flywheel shall have sole power to direct electricians as to where and how telephone and other wires are to be introduced. No boring or cutting of wires is to be allowed without the consent of Flywheel. The locations of telephones and other office equipment affixed to the premises are determined by Flywheel at its sole discretion.
F) You shall not install linoleum, tile, carpet or other floor covering so that the same shall be affixed to the floor of the Premises except as approved by Flywheel.
G)You shall cause all doors to the Premises to be closed and securely locked before leaving the Building.
H)Except for Flywheel’s gross negligence, members assume full responsibility for protecting the Premises from theft, pilferage, and robbery, which includes keeping doors locked and other means of entry to the Premises closed and secured.
I) Members shall not bring furniture, equipment, machinery or appliances onto the premises without prior written approval by Flywheel.
J) Members shall not change locks or install locks on doors or cabinets without prior written approval by Flywheel.
K)Members shall give prompt notice to Flywheel of any accidents to or defects in plumbing, electrical fixtures, or heating apparatus reasonably known to you so the same may be attended to properly.
L) Members shall not install, maintain or otherwise locate at Flywheel any computer server of any kind, whether hardware or software without Flywheel’s permission.
M) Any violation of the above stated regulations regarding facilities may result in immediate termination of membership.
N) Member shall not make any alterations, additions, improvements, painting, placing or erecting any signs in, on, or near the co-working space or changes to the co-working space without the prior written consent of Flywheel. If Flywheel provides such written consent, Member agrees to absorb any cost of repairing or replacing any damaged items resulting from the gross negligence or willful misconduct in connection with work performed in the stated written consent, including, but not limited to walls, painting, furniture, baseboards, carpet.
O) Any and all damage to the co-working space or its furniture, fixtures, equipment, structured cabling, or AV systems, other than ordinary wear and tear and damage by fire or other insured casualty, caused by or resulting solely from Members’, and/or its guests’ negligence and/or willful misconduct shall be promptly repaired, restored, or replaced by Flywheel and such costs associated in connection with the repair, restoration or replacement shall be borne by the Member and reimbursable to Flywheel.
P) Member shall repair any damage to the co-working space caused by removal of Member’s personal property and shall restore the co-working space to its original condition as provided as provided to Member by Flywheel.
Q) Flywheel may host events that include the sale or service of alcohol. Without limiting the foregoing, neither Flywheel nor any of its Members shall serve or permit service of alcohol to anyone under the age of 21.
35. PARKING: Flywheel members are not required, but it is strongly suggested that they carry an insurance policy to cover their own motor vehicle, equipment and personal property when using our space. Consult with the carrier of your automobile, personal liability, homeowner’s or business insurance to verify coverage.
36. MISCELLANEOUS: These Terms and Conditions shall be construed in their entirety according to their plain meaning and shall not be construed against the party who provided or drafted them. All of the terms, provisions, and conditions shall be deemed to be severable in nature. If for any reason any provision of these Terms and Conditions is held to be invalid or unenforceable to any extent, then, to the extent that such provision is valid and enforceable, a court of competent jurisdiction shall construe and interpret these Terms and Conditions to provide for maximum validity and enforceability of such provision, and such ruling shall not affect the validity and enforceability of the remaining Terms and Conditions. In the event of any default by Member as to any duty, warranty, or undertaking owed to Flywheel, which default results in efforts by the non-defaulting party to remedy same (whether a lawsuit is filed or not), Member shall pay, in addition to such other sums as may be due under these Terms and Conditions, all costs and expenses, of such efforts, including, but not limited to, reasonable attorney’s fees. No right or remedy conferred upon or reserved to a party in these Terms and Conditions or any document or instrument delivered in accordance with these Terms and Conditions is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given under these Terms and Conditions or any document or instrument delivered in accordance with these Terms and Conditions or now or hereafter existing at law or in equity or otherwise. The assertion or exercise of any other right or remedy under these Terms and Conditions or otherwise shall not prevent the concurrent assertion or exercise of any other available right or remedy. The laws of the State of North Carolina shall govern the validity of these Terms and Conditions, the construction of these Terms and Conditions, the interpretation of the rights and duties of the parties, the enforcement of these Terms and Conditions, and all other matters relating to these Terms and Conditions. The representations, warranties, and covenants made pursuant to and contained in these Terms and Conditions shall survive the execution and delivery of these Terms and Conditions and the consummation of the transactions contemplated in these Terms and conditions. Any obligation of a party that contemplates performance of such obligation after termination or expiration of these Terms and Conditions shall be deemed to survive such termination or expiration.
37. HOST LOCATION SUPPLEMENTAL TERMS AND CONDITIONS: In addition to the terms and conditions set forth herein, all applicants for membership shall be subject to the additional terms contained in the host location’s Supplement to the Membership Agreement, a copy of which is attached hereto, and such Supplement shall be deemed to be incorporated to, and a part of, this Membership Agreement Terms and Conditions.
38. USE OF LOCATIONS: Acceptance of this Membership Application by Flywheel will grant the Member access to the specific location identified on the HOST LOCATION SUPPLEMENTAL TERMS AND CONDITIONS. Reciprocal use of other locations shall be as described above and governed by that location’s SUPPLEMENTAL TERMS AND CONDITIONS.
CASUALTY: Member shall use every reasonable precaution against fire damaging the co-working space. In the event of fire or other casualty, Flywheel shall, in its sole discretion, decide whether to repair or reconstruct the co-working space. If Flywheel determines to reconstruct the co-working space, the Member shall be entitled to use all other Flywheel locations until reconstruction of the damaged co-working space is complete. If Flywheel decides not to repair or reconstruct, then the term of this Agreement shall cease, this Agreement shall terminate, and the Parties shall make a final accounting and payment of outstanding fees and membership reimbursements.
Supplement to Membership Agreement Terms and Conditions:
450 Design Ave.
Winston-Salem, NC 27101
The Flywheel Membership grants access to Flywheel Winston-Salem Location (“Premises”). The membership and the right to use the designated Flywheel area and common areas at the Premises and such membership is subject to the Membership Agreement Terms and Conditions, this Terms and Condition Supplement, the rules and regulations promulgated by Flywheel and any other additional terms and conditions as Flywheel may deem necessary. For the purposes of this agreement the Center for Design Innovation is inclusive of it’s member institutions Winston-Salem State University, The University of North Carolina School of the Arts, and Forsyth Technical Community College.
1. The access cards at the Center for Design Innovation will grant entry to the co-working space between the hours of 7 am to 11 pm, seven days a week. After 11 pm, Members may remain in the co-working space but cannot gain re-entry until 7 am.
2. Members and invited guests shall have the nonexclusive right to use the parking lot adjacent to the Center for Design Innovation. Parking availability is not guaranteed. Vehicles should not be parked in spaces marked reserved and should not be left in the parking lot for long-term parking. Member understands and agrees that Flywheel and/or the Center for Design Innovation may at any point during the term of this Agreement implement parking policies that would affect Member’s and its invited guests’ ability to use the parking lot, including, but not limited to, a parking permit program.
3. Member assumes full responsibility for the acts of its members and guests using Center for Design Innovation facilities and agrees to reimburse Flywheel and/or Center for Design Innovation for any and all damages to facilities, equipment, or furniture, charges for false fire alarms ($200 per incident), charges for lost access cards, and fines for violation of Center for Design Innovation regulations.
4. Neither Center for Design Innovation nor Flywheel shall accept responsibility for theft or other loss of money, valuables, or personal effects of Members or their respective guests.
5. Center for Design Innovation and Flywheel reserve the right to revoke campus privileges including use or occupancy of any of its buildings, of any occupant whose conduct, in Center for Design Innovation’s or Flywheel’s opinion, becomes injurious or potentially injurious to the Center for Design Innovation community.
Member is advised of Center for Design Innovation nondiscrimination and non-harassment policies and agree to abide by the same: https://www.wssu.edu/about/offices-and-departments/legal-affairs/policies-and-procedures/chapter-100-personnel-policies/101-personnel-general/101.3.html
6. To the maximum extent possible permitted by applicable law, neither Center for Design Innovation nor Flywheel are liable to Member in respect of any loss or damage Member suffers in connection with its membership agreement, with the services provided, or with Member’s accommodations unless Center for Design Innovation or Flywheel has acted with gross negligence in causing that loss or damage. In no event will Center for Design Innovation or Flywheel be liable for any loss or damage until the Member provides Center for Design Innovation and/or Flywheel with written notice and gives Center for Design Innovation and/or Flywheel a reasonable time to cure. In no event will Center for Design Innovation or Flywheel be liable for any loss of business, loss of profits, loss of anticipated savings, loss of or damage to data, third party claims, or any consequential loss unless Center for Design Innovation and/or Flywheel otherwise agrees in writing.
7. Member shall agree to release, indemnify, and hold Center for Design Innovation and/or Flywheel and its trustees, employees, students, and agents harmless from any claims, damages, losses, or expenses related to personal injuries, property damage, lost or stolen items, or other liabilities that may be incurred during Member’s use of the co-working space.
8. Member shall agree to defend, indemnify, and hold Center for Design Innovation and/or Flywheel and its trustees, employees, students, and agents harmless from and against any damages, loss, claim, suit, and expense, including attorneys’ fees and legal expenses, occasioned by or arising out of any claim for death, damage, or otherwise, which results from any act of omission of Member or Member’s guest while on or near the co-working space, Member’s use of the co-working space, any defect or alleged defect in the Center for Design Innovation or the fault or negligence of Center for Design Innovation.
9. Member may not, without the prior written consent of the named entity, use any of the following names in any advertising, brochures, or promotional materials: Flywheel, Wildfire, Workplace Strategies, Inc., Storr Office Environments, and the Center for Design Innovation inclusive of it’s member institutions Winston-Salem State University, The University of North Carolina School of the Arts, and Forsyth Technical Community College.
10. Member is responsible for arranging insurance for its own property which it brings into the Co-Working Space and for its own liability to its employees and to third parties, and it is strongly recommended that Member put such insurance in place.
Cobot is the web platform used by Flywheel Davidson 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.