Fabbit Global

fabbit Membership Terms and Conditions

Article 1. (Purpose ; Premises)

(a)   Apaman U.S.A., Corp., a Delaware corporation (the “Company”) operates the “fabbit” co-working space located at 88 Kearny Street, Suite 2100, San Francisco, CA 94108 (the “Premises”). These Membership Terms and Conditions, together with the Membership Application Form (as defined below), Terms of Use (as defined below), and any attachments, exhibits, and addenda and any other policies adopted by the Company from time to time, which are incorporated in their entirety as if set forth herein (collectively, the “Agreement”), define the terms pursuant to which the Company will provide Services (as defined below) to a Member (as defined below). 

(b)   The Company’s agreement to provide the Services is expressly conditioned upon Member’s acceptance of this Agreement.  Further, by applying to become a Member or by accepting any Services hereunder, Member agrees to be bound by this Agreement.

(c)   Member also agrees to comply with the separate terms and conditions of use, which sets forth additional rules and regulations related to Member’s use of the Services (“Terms of Use”). 

(d)  The Company reserves the right, in its sole discretion, to change or replace this Agreement or any other terms and conditions at any time and to make changes to any services offered to Members, with or without notice.  The Agreement then-in effect will be published on the fabbit website (https://fabbit.global/), and it will be the responsibility of the Member to periodically review the Agreement for changes.  In no event shall the Company be liable for any change to the Agreement or for any change, suspension, or discontinuance to any Services provided by the Company.

Article 2. (Members)

(a)  “Member” means an individual or entity that meets the eligibility requirements set forth in Article 3 below and that has completed the Company’s registration process to receive the Services.

(b)  If Member is an entity (“Entity Member”), Entity Member shall designate an individual to be the primary authorized representative of the Entity Member (“Primary Representative”) who shall have the authority to make decisions and legally bind the Entity Member in connection with this Agreement.  Further, Entity Member may designate individuals associated with its business (e.g. employees, officers, directors, partners, managers, independent contractors, consultants, agents, and representatives) that Entity Member authorizes to use Entity Member’s Workspace (as defined below) and to receive the Services hereunder (each, a “Member Employee” and collectively, the “Member Employees”) by adding their names and addresses to the “Member Employee List” form provided by the Company and delivering it to the Company.  Only those Member Employees set forth on the Member Employee List shall be deemed to be authorized to use Entity Member’s Workspace and receive the Services.  Entity Member shall be responsible for maintaining the accuracy of the Member Employee List.  The Primary Representative must be a Member Employee.  Member may change the Primary Representative or make changes to the Member Employee List at any time in accordance with Article 9 below.  Unless otherwise specified, the term “Member” used in this Agreement shall refer to both the Entity Member and its Member Employees, collectively.

(c) The Company will create a profile for each Member, including Member Employees, on the Company’s Member Network. Such profile will be viewable by the Company, the Company’s employees and agents, and other Members. Such profile may include a photograph of the Member, in addition to other information about the Member.  Member hereby consents to the creation of such profile.  An Entity Member is responsible for informing each of its Member Employees about the creation of a profile for the Member Employee, and by sending the Company a request to add a Member Employee to the Member Employee List, the Entity Member is representing and warranting that it has obtained all necessary consents from such individual for the creation of such profile.

Article 3. (Member Eligibility)

An individual or entity that desires to become a Member (an “Applicant”) must meet all of the criteria set forth below:

1)     Accept and agree to comply with the Agreement.

2)     If Applicant is an individual, be 18 years of age or older.  If an Applicant is an entity, the individual to be designated as Primary Representative be 18 years of age or older.

Present valid identification (if Applicant is an entity, the Primary Representative must present valid identification and the entity’s formation and governing documents).

Article 4. (Application Process; Membership Types)

(a) An Applicant shall complete the Company’s membership application form, which requires basic information such as Applicant’s name, email address, contact information, etc. (“Membership Application Form”).

(b) Each Membership Application Form will require payment of a non-refundable administrative fee (“Administrative Fee”).  The Administrative Fee must be paid regardless of whether the Applicant is ultimately approved to become a Member.

(c)  The Company offers different types of membership (“Membership”) to meet the needs of its Members.  Membership types are further described on the fabbit website (https://fabbit.global/).  Members will select the Membership type for which they are registering on the Membership Application Form.  A Member may change Member’s Membership type at any time in accordance with Article 9 below.

(d)  The Company shall review the completed Membership Application Form and all other supporting documents and shall determine, in its sole discretion, whether or not Applicant is qualified to become a Member. Upon completion of the review process, the Company shall notify Applicant of the results.

(e)  If the Company accepts and approves an Applicant’s Membership Application Form, receives payment of the Administrative Fee, and determines that the Applicant is qualified to become a Member, the Company and Applicant will determine a start date for the Services (“Start Date”) and the term of the Agreement.  Further, depending on the Membership type selected by the Applicant, the Company may designate an office number and/or workspace location(s) (the “Workspace”) to which a revocable, non-exclusive license to use may be granted to Member.

Article 5 (Access Cards)

(a)  The Company shall provide an access card to Member, which will allow Member to enter and exit the Premises (“Access Card”).

(b)  Members shall safeguard Access Card(s), shall not make copies of Access Card(s), and shall not lend, transfer, or assign the Access Card(s) to any third party.  Notwithstanding the foregoing, if a third party uses a Member’s Access Card to access the Premises, regardless of whether the third party comes into possession of the Access Card through theft or other reason, Member shall be responsible for all fees, expenses, costs, and damages resulting from the third party’s use of the Member’s Access Card.

(c)  Access Cards remain the property of the Company, and Members shall return their Access Cards immediately in the following situations:

(1)  Upon the expiration of the Term.

(2)  Termination of this Agreement by either Party.

(3)  Member Employee terminates its relationship with an Entity Member.

(4)  When the Company requests that a Member return the Access Card for any reason.

(d)  If a Member loses Access Card(s), such Member must immediately report it to the Company.  The Company may then re-issue a Access Card to such Member at Member’s sole expense.

Article 6 (Services)

(a)   The Company shall provide services based on the Membership types as set forth on the fabbit website (https://fabbit.global/) from time to time.  Further, subject to the terms and conditions of this Agreement, during the Term (defined below), the Company will use commercially reasonable efforts to provide the following services (collectively, the “Services”) to Member:

     Non-exclusive access to the Workspace in accordance with Member’s Membership type, as applicable.

    Regular maintenance of the Workspace, consistent with maintenance provided to similar workspaces in the Premises, provided that the Company will not be responsible for any damages exceeding normal wear and tear.

     Access to and use of the Company’s Member Network site, if any.

     Reasonable access to and use of a shared Internet connection.

    Electricity, heating, and air-conditioning to the Premises for normal use in such reasonable quantities determined by the Company in its sole discretion during Regular Business Hours on Regular Business Days.

     Opportunity to participate in Members-only events, benefits, and promotions.

 

(b)   “Regular Business Days” means generally, all weekdays (Monday through Friday), except local bank/government holidays and up to three other days designated by the Company.  “Regular Business Hours” means generally from 9:00 a.m. to 6:00 p.m. (Pacific Time) on Regular Business Days.  

Article 7 (Workspace)

(a)  The Company is entitled to access Member’s Workspace, with or without notice, in connection with the Company’s provision of the Services, for safety or emergency purposes, or for any other purpose. The Company may temporarily move furniture contained in the Workspace.  The Company reserves the right to alter the Workspace, provided that the Company will not do so in a manner that materially decreases the square footage of the assigned Workspace or related amenities.  The Company may also modify or reduce the list of Services or furnishings provided for the Workspace at any time. The Services may be provided by the Company, an affiliate, or a third party.

(b)  If the Company is unable to make the Workplace available by the Start Date for any reason, including due to (i) changes in construction plans, delays in obtaining permits, or any other obstacles in procuring space in the Premises, or (ii) delays caused by Member or by changes requested by Member, the Company will not be subject to any liability related to such inability, nor will such failure affect the validity of this Agreement. In this event, except as set forth in this Agreement, Member will not be obligated to make payments of the Membership Fee until the Workplace is made available to Member.

(c)  The Company may also change the layout of the Workspace and/or the Premises from time to time, and the Company will not be subject to any liability related to such change.

Article 8 (Membership Fees; Payment)

(a)  Member shall pay the fees associated with the Member’s Membership type (“Membership Fee”).

(b)  Upon Company’s acceptance and approval of an Applicant as a Member, Member will be obligated to deliver to the Company, in the amount(s) set forth on Member’s Membership Application Form, (i) a service retainer (“Service Retainer”) and (ii) the first month’s Membership Fee. The Service Retainer will be held as a retainer for performance of all Member’s obligations under this Agreement and is not intended to be a reserve from which Membership Fees may be paid. In the event Member owes other fees to the Company, Member may not rely on deducting them from the Service Retainer but must pay them separately. Subject to the complete satisfaction of Member’s obligations under this Agreement, the Company will return the Service Retainer, or any balance after deducting outstanding fees and other costs due to the Company, to Member by ACH, wire transfer, or check within thirty (30) days after the later of (i) the termination or expiration of this Agreement and (ii) the date on which Member provides to the Company all account information necessary for the Company to make such payment.

(c)  During the Term of this Agreement, the Company will process payment for Member’s Membership Fee and other outstanding fees, in advance, monthly, typically on the 27th of the prior month to the Membership Fee coming due and no later than the fifth (5th) business day of each month. Member shall be responsible for having the necessary funds available in Member’s payment account as of the 27th day of each month.  For example, the aforementioned fees for the month of April must be available in Member’s payment account on March 27. The Membership Fee set forth on the Membership Application Form covers the Services for only the number of Member Employees indicated on the Membership Application Form. Additional Member Employees will result in additional fees.

(d)  On each anniversary of the Start Date, the Membership Fee will automatically increase to the greater of (a) three percent (3%) over the previous year’s Membership Fees or (b) the prevailing market rate. In the event the Renewal Term is less than a year, such increase will be made on a pro rata basis for the Renewal Term.

(e) The Company will send or otherwise provide invoices and other billing-related documents, information, and notices to the Member (or if the Member is an Entity Member, to the Primary Representative), unless a different billing contact is indicated on the Membership Application Form. Changes to the billing contact will require notice from the Member (or if the Member is an Entity Member, from the Primary Representative).

(f)   Each month, Member may receive a certain number of credits for meeting room use, copies, printouts and other products and services the Company may offer from time to time, as specified on the Membership Application Form. These allowances may not be rolled over from month to month. If these allocated amounts are exceeded, Member will be responsible for paying fees for such overages. All overage fees are subject to increase from time to time.

(g)  If payment for the Membership Fee or any other accrued and outstanding fee is not made by the tenth (10th) of the month in which such payment is due, Member will be responsible for paying a late charge. The late charge is equal to $50 plus 5% of the total amount due (unless prohibited by applicable law or moratorium).

(h)  Upon expiration of termination of this Agreement or if the Member, at its option, chooses to relocate to a different office within the Premises, the Company may charge an Office Restoration Fee to cover normal cleaning and repair and to return the Workspace to its original state. This fee is $2.50 per square foot of the Workspace. The Company reserves the right to charge additional reasonable fees for any repairs needed above and beyond normal wear and tear.

(i)   The Company accepts payment of all amounts specified in this Agreement solely by direct withdrawal from Member’s bank account or credit card. If Member elects to pay via direct withdrawal, Member is required to maintain sufficient money in Member’s bank account to pay the fees described in this Agreement and to inform the Company promptly of any changes to the account. If Member elects to pay via credit card, Member is required to inform the Company promptly of any changes to Member’s credit card information and must ensure that Member replaces such credit card and updates the relevant information prior to its expiration date. Changing Member’s payment method may result in a change in the amount required under this Agreement to be held as the Service Retainer. Only a single checking, savings or credit card account may be used at any given time to make payments under this Agreement. If payment via credit card fails on two occasions, the Company may require Member to make payments via direct withdrawal.

(j)   When the Company receives funds from Member, the Company will first apply funds to any balances which are in arrears and to the earliest month due first. Once past balances are satisfied, any remaining portion of the funds will be applied to current fees due. If any payments remain outstanding after the Company provides notice to Member, the Company may suspend Services or terminate this Agreement in accordance with Article 10.

(k)  Member shall not have a right to offset any amount due to the Company with any amount the Company owes to Member.

(l)   Except as provided in Article 10(b) of this Agreement, there are no refunds of any fees or other amounts paid by Member or Member Employees in connection with this Agreement.

Article 9 (Changes to Membership)

(a)  If a Member desires to change its Membership type or add additional Services, Member shall complete the necessary forms provided by the Company and obtain the Company’s prior consent.  For an Entity Member, the Primary Representative must complete the necessary forms.  If the Company agrees to such change request,
the Company shall determine the effective date of such changes after considering Member’s requested effective date.

(b)  Requests to change Membership type are not guaranteed.

(c)  In order to make changes to the Member Employee List, the Primary Representative must send an email, from the Primary Representative’s email account on file with the Company, to the Company’s designated email address.  The email requesting the change must include the name(s) and email address(es) of the departing and new Member Employee(s) and the effective date of the change. The changes will not take effect until the Company confirms that the Company has received the email and has accepted and applied the change, in the Company’s sole discretion. A Member Employee will no longer be allowed access to the Services upon the earlier of (i) the termination or expiration of this Agreement; (ii) Member Employee’s removal from the Member Employee List by Entity Member; or (iii) the Company’s notification to a Member Employee that such Member Employee will be (or has been) removed from the Member Employee List, for example due to Member Employee’s misconduct or violation of this Agreement. If the number of Member Employees or other individuals regularly using an Entity Member’s Workspace exceeds the number allocated on the Membership Application Form, the Entity Member will be required to pay the then current additional fee as set forth on the Services Price Guide. In no event will the number of Member Employees exceed 1.5 times the number of desks in the Workspace, regardless of additional fees paid. The Company reserves the right to further limit the number of Member Employees allowed at any given time. 

(d)  In order to remove or replace the individual serving as the Primary Representative, an executive officer of the Entity Member (“Executive Officer”) must contact the Company by email with evidence that such individual is a duly-elected officer of the Entity Member and with the name and email address of the individual who will serve as the new Primary Representative.  Unless the Company receives instructions from the Executive Officer, if the individual designated as the Primary Representative ceases to provide services to the Entity Member or ceases using the Workspace regularly, the Company will use reasonable judgment in designating a replacement Primary Representative for the Entity Member.

(e) The Company may, in its sole discretion, determine or modify a Member’s rights and obligations as a Member under this Agreement.  Any such waiver, amendment, or other modification to a Member’s membership will not be effective unless in writing and signed by an authorized officer of the Company. 

Article 10 (Term and Termination)

(a)  This Agreement will be effective when signed by both Parties (“Effective Date”) and shall continue for the initial term set forth on the Membership Application Form (“Initial Term); provided that the Company has no obligation to provide Member with the Services until the later of (i) the date on which payment of Member’s Service Retainer and first month’s Membership Fee has cleared or (ii) the Start Date. If the Start Date is a Regular Business Day, Member may begin accessing the Workspace after 11 a.m. (Pacific Time) on the Start Date. If the Start Date is not a Regular Business Day, Member may begin accessing the Workspace after 11 a.m. (Pacific Time) on the first Regular Business Day after the Start Date.  Unless otherwise set forth on the Membership Application Form or unless sooner terminated as provided herein, following the Initial Term, this Agreement shall automatically renew for the same term as the Initial Term (any term after the Initial Term shall be called a “Renewal Term”) unless either Party gives notice to the other in writing to the contrary according to the Notice Period below.  The Initial Term and all subsequent Renewal Terms shall constitute the “Term.” If no Initial Term is indicated on the Membership Application Form, the default Initial Term shall commence on the Start Date and end three (3) months after the Start Date. This Agreement will continue until terminated in accordance with this Agreement.

Term

 

Notice Period

Month-to-Month

 

No less than one (1) month’s notice from the 1st day of any calendar month

Other

 

No less than three (3) months’ notice prior to the end of the Initial term or any Renewal Term thereof

(b)  Member may cancel this Agreement prior to the Start Date upon delivery of written notice to the Company. If Member terminates more than one (1) full calendar month prior to the Start Date, Member may be entitled to a refund of the Service Retainer and first month of Membership Fee and any applicable charges, expenses or deductions that Member has paid to the Company; however, the Administrative Fee shall not be refunded.  If Member terminates within one (1) full calendar month prior to Member’s Start Date, Member may in the Company’s sole discretion receive a refund of the Service Retainer but will not receive a refund of the Administrative Fee or the first month of Membership Fee that Member has paid to the Company.

(c)  After the Initial Term, for Agreements with a Start Date of on or after November 1, 2020, Member may terminate this Agreement by completing an “Exit Letter” in the form prescribed by the Company and delivering to the Company at least (i) one (1) month prior to the month in which Member intends to terminate this Agreement (“Termination Effective Month”), in the event of a month-to-month Term or (ii) three (3) months prior to the Termination Effective Month, in the event of a Term other than a month-to-month Term. The termination will become effective on the last Regular Business Day of the Termination Effective Month.  For example, if Member desires to terminate this Agreement on the last Regular Business Day of April, and the Term is not a month-to-month Term, the last opportunity to deliver the Exit Letter to the Company would be on January 31. The Exit Letter shall be completely filled out and signed by the Member (if Member is an Entity Member, by the Primary Representative). Member will not be entitled to proration with respect to the last month’s Membership Fee. For instance, if Member vacates Member’s Workspace before the last Regular Business Day of April, Member will still be required to pay the full Membership Fee for the month of April.

(d)  Notwithstanding any other provision of this Agreement to the contrary, this Agreement may be terminated immediately by the Company upon the occurrence of any of the following events.  Notice of termination shall not be necessary to terminate this Agreement pursuant to this section; however, the Company shall, for informational purposes, provide Member with prompt notice of such termination.  If any of the following termination events occurs, the Company shall have all rights and remedies provided by any law or otherwise provided in this Agreement, to which the Company may resort cumulatively or in the alternative. 

(i)    If Member ceases to conduct business in the normal course, becomes insolvent, enters into suspension of payments, moratorium, reorganization or bankruptcy, becomes a “debtor” as defined in 11 U.S.C. Section 101 or any successor statute thereto (unless, in the case of a petition filed against Member, the same is dismissed within 60 days); makes a general assignment for the benefit of creditors, admits in writing its inability to pay debts as they mature, suffers or permits the appointment of a receiver for its business or assets, or avails itself of or becomes subject to any other judicial or administrative proceeding that relates to insolvency or protection of creditors’ rights.

(ii)   Member or any Member Employee breaches any provision of this Agreement or is negligent in complying with its obligations under the Agreement or any other policies or instructions provided by the Company.

(iii)  Member’s or any Member Employee’s actions, the actions of personnel performing on behalf of Member under this Agreement, discredit, defame, or otherwise damage the Company, as determined in the Company’s sole discretion.

(iv)  upon termination, expiration or material change of the Company’s rights in the Premises.

(v)   at any other time, when the Company, in the Company’s reasonable discretion, desires to terminate the Agreement.

Member will remain liable for past due amounts, and the Company may exercise the Company’s rights to collect outstanding payments, despite termination or expiration of this Agreement.

(e)  Upon any termination of this Agreement, whether by lapse of time or otherwise, or upon any revocation of Member’s license herein granted, Member’s rights to use the Workspace, Premises, and Services shall cease.  For each and every month or portion thereof that Member continues use of the Workspace after the termination of this Agreement by lapse of time or otherwise, without the express written consent of the Company, Member shall pay the Company an amount equal to double the monthly Membership Fee computed on a per-month basis for each month or portion thereof that Member continues the use of the Workspace or Services.

(f)   After termination or expiration of this Agreement, the Company will return any balance of Member’s Service Retainer to Member in accordance with Article 8(b) of this Agreement.

(g)  Prior to the termination or expiration of this Agreement, Member will remove any and all of Member’s, Member Employees’, and Member’s guests’ or invitees’ property from the Workspace and Premises. After providing Member with reasonable notice, the Company will be entitled to dispose of any property remaining in or on the Workspace or Premises after the termination or expiration of this Agreement and will not have any obligation to store such property. Member waives any claims or demands regarding such property or the Company’s handling of such property. Member will be responsible for paying any fees reasonably incurred by the Company regarding such removal. Following the termination or expiration of this Agreement, the Company will not forward or hold mail or other packages delivered to the Company.

(h)  Member shall return all Access Cards issued to Member or Member Employees on or before the last Regular Business Day of the Termination Effective Month.

(i)   Upon termination or expiration of this Agreement, Member and Member Employees shall vacate the Workspace and Premises immediately, leaving Workspace in the same condition as it was when the Member first accessed it.

Article 11 (Personal Property of Members)

Member shall be solely responsible for any personal property left at the Workspace or in the Premises. Member hereby acknowledges and agree that the Company will not be responsible for any theft, loss, or damage to such personal property.

Article 12 (Notices)

Any and all notices under this Agreement will be given via email and will be effective on the first business day after being sent.  All notices will be sent via email to the email address specified on the Membership Application Form, except as otherwise provided in this Agreement.  The Company will not be responsible for any undelivered, or delayed delivery of, notices due to Member’s failure to change the registered information. 

Article 13 (Office Closures)

(a)   The Company may, from time to time, close, and direct Members to refrain from using, the Workspace or the Premises, in whole or in part due to any of the following reasons:

(i)     When the Workplace or the Premises, in whole or in part, is required to close in accordance with applicable laws, regulations, or other governmental orders.

(ii)    When the Company determines that it is not possible to perform the Services safely due to inclement weather or other disasters.

(iii)   When the Workplace or the Premises, in whole or in part, is made unusable by fire or other casualty.

(iv)  When the Workplace or the Premises, in whole or in part, is made unusable due to unexpected need for repairs or renovations.

(v)   When a special event is being held at the Premises.

(vi)  Whenever the Company deems it necessary, in its sole discretion, to close the Workplace or the Premises, in whole or in part.

(b)   The Company will use commercially reasonable efforts to notify Members of any scheduled closures in advance by posting the same on the fabbit website (https://fabbit.global/) or through other methods. However, in the event of an urgent need, the Company shall not be required to provide prior notice to the Members.

In the event of a closure lasting thirty (30) days or less, the Company shall not be required to refund or abate Membership Fees even if Member is unable to use the Workspace or Premises, in whole or in part.

Article 14 (Protection of Personal Information)

The Company shall handle Member’s personal information in accordance with the “General Privacy Policy” posted separately on the fabbit website (https://fabbit.global/) and to the extent applicable, with the CCPA Privacy Policy Notice also posted separately on the fabbit website (https://fabbit.global/).

Article 15 (Compliance with Laws)

Member agrees to comply with all applicable federal, state, and local laws, regulations, and ordinances in the conduct of its business in the Premises and relating to its performance of this Agreement, including but not limited to all safety, employment, and environmental laws and regulations.  Further, Member hereby represents and warrants that (i) neither Member nor any of Member’s agents, employees, contractors, guests, or invitees are or will be at any time during the Term, an entity or individual listed on the Specially Designated Nationals and Blocked Persons List published by the U.S. Department of Treasury, as updated from time to time; and (ii) neither Member nor any of Member’s agents, employees, contractors, guests, or invitees will, at any time during the Term, engage in any activity under this Agreement, including the use of Services provided by the Company in connection with the Agreement, that violates applicable U.S. economic sanctions laws or causes the Company to be in violation of such U.S. economic sanctions laws.

Article 16 (Intellectual Property)

(a)  Member shall not use any trademark, service mark, logo or trade name of the Company or its affiliates, including but not limited to “fabbit,” nor shall Member represent itself as having any business affiliation with the Company, without prior written consent of the Company. 

(b)  Notwithstanding any rights under trademark or copyright law and any rights of publicity, privacy, or otherwise, and without further compensation, the Company may and hereby is authorized to photograph, record, use, or publish, in connection with promotion of the Company and the Company’s partners’ businesses, products and services during and after the Term, (i) Member’s name, trademark, service mark, logo, trade dress and other identifiers and intellectual property and (ii) the names, likenesses, and voices of Member Employees, if applicable, and guests when they are in the Premises.  Member grants to the Company and its representatives, employees, agents and assigns, the irrevocable and unrestricted right to use, reproduce, and publish photographs and the other items described in sentence (i) of Member, including Member’s image and likeness as depicted in any images for editorial, trade, advertising or any other purpose and in any manner and medium; to alter the same without restrictions, and to copyright the same.  Member releases the Company, its representatives, employees, agents and assigns from any and all claims, actions, and liability related to the use of said photographs.  If Member is an Entity Member, Entity Member will ensure that it has obtained, in writing, all licenses, permissions, consents, rights and releases necessary, including without limitation from any Member Employees, guests, or other third parties, in order to grant to the Company the rights and licenses set forth in this section.

Article 17 (Disclaimer of Warranties)

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY PROVIDES THE PREMISES, WORKSPACE, AND SERVICES “AS IS” AND WITH ALL FAULTS, AND HEREBY DISCLAIMS (AND BY ACCEPTING THE SERVICES, MEMBER HEREBY WAIVES) WITH RESPECT TO THE PREMISES, WORKSPACE, AND SERVICES ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY (IF ANY) WARRANTIES, DUTIES, OR CONDITIONS OF OR RELATED TO: MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, RESULTS, WORKMANLIKE EFFORT, LACK OF NEGLIGENCE, NONINFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, COMPLIANCE WITH ANY RULES OR PRACTICES ESTABLISHED UNDER APPLICABLE LAWS, REGULATIONS OR STANDARDS, OR ANY OTHER EXPRESS, STATUTORY OR IMPLIED WARRANTY OF ANY KIND ARISING OUT OF THE DELIVERY, USE OR PERFORMANCE OF THE PREMISES, WORKSPACE, OR SERVICES OR ARISING OUT  OF COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.

ALSO, THERE IS NO WARRANTY, DUTY, OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSESSION, AND CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGMENT CONCERNING ANY USE OF THE PREMISES, WORKSPACE, OR SERVICES. THE ENTIRE RISK ARISING OUT OF PARTICIPATION AS A MEMBER OR IN THE USE OF THE PREMISES, WORKSPACE, OR SERVICES REMAINS WITH MEMBER.

Article 18 (Waiver and Release of Claims)

To the extent permitted by law, Member, on Member’s own behalf and on behalf of Member’s employees, Member Employees, agents, guests and invitees, waives any and all claims and rights against the Company and the Company’s landlord at the Premises and the Company’s affiliates, shareholders, and successors and each of their directors, officers, employees, agents and representatives (collectively, the “Company Parties”) resulting from injury, illness, or damage to, or destruction, theft, or loss of, any real or personal property, person or animal and releases the Company Parties from any such claims.  Further, Member shall and hereby waives California Civil Code Section 1542, or any other similar law of any jurisdiction, which states in substance as follows:

 

“A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.

Article 19 (Indemnification)

To the fullest extent permitted by law, Member shall, at its own expense, indemnify, defend, protect and hold harmless the Company Parties from and against all claims, causes of action (whether based on tort or contract law principles, law or equity, or otherwise), losses, costs, liabilities, damages, charges, assessments, fines, and penalties of any kind (including consultant and expert expenses, court costs, and reasonable attorneys’ fees), including, without limitation, claims for injury or illness to any person (including death resulting from that injury or illness); and loss of, injury or damages to, or destruction of real or personal property (including all loss of use resulting from that loss, injury, damage, or destruction) (collectively, “Claims”) arising out of or related to (i) the negligence of Member, its agents, employees, contractors, guests, or invitees; or (ii) any breach of this Agreement by Member, or its agents, employees, contractors, guests, or invitees.  THE INDEMNIFICATION PROVISIONS IN THIS SECTION SHALL BE ENFORCEABLE REGARDLESS OF WHETHER THE LIABILITY IS BASED ON PAST, PRESENT OR FUTURE ACTS, CLAIMS OR LEGAL REQUIREMENTS (INCLUDING ANY PAST, PRESENT OR FUTURE BULK SALES LAW, ENVIRONMENTAL LAW, FRAUDULENT TRANSFER LAW, OCCUPATIONAL SAFETY AND HEALTH LAW, OR PRODUCTS LIABILITY, SECURITIES, TAX OR OTHER LAW), AND REGARDLESS OF WHETHER ANY PERSON ALLEGES OR PROVES THE SOLE, CONCURRENT, CONTRIBUTORY OR COMPARATIVE NEGLIGENCE OF THE PERSON SEEKING INDEMNIFICATION, OR THE SOLE OR CONCURRENT STRICT LIABILITY IMPOSED ON THE PERSON SEEKING INDEMNIFICATION.  The provisions of this Article 19 shall survive the expiration or earlier termination of this Agreement until all Claims involving any of the indemnified matters are fully, finally, and absolutely barred by the applicable statutes of limitation.  Nothing in this Article 19 shall limit the Company’s other rights or remedies under this Agreement.

Article 20 (Limitation of Liability)

(a) The Company shall not be liable for any damages incurred by Members due to accidents, illness, or injuries caused by the use of the Workspace, Premises, or equipment in the Premises, theft of property in the Premises, theft of information, etc. 

(b)  Notwithstanding the foregoing, the Company’s total liability for all claims arising out of or relating to the performance or breach of this Agreement or the Services shall not exceed the total amount of the Membership Fees paid under this Agreement by Member to the Company in the three (3) months prior to the claim arising.  THE COMPANY SHALL NOT BE LIABLE FOR LOSS OF PROFIT OR REVENUES, LOSS OF PRODUCT, LOSS OF USE OF PRODUCTS OR SERVICES OR ANY ASSOCIATED EQUIPMENT, LOSS OR INTERRUPTION OF BUSINESS, LOSS OF OPPORTUNITY, LOSS OF GOODWILL, DAMAGE TO REPUTATION, COST OF CAPITAL, COST OF COVER OR REPLACEMENT, DOWNTIME COSTS, INCREASED OPERATING COSTS, CLAIMS OF CUSTOMER’S CUSTOMERS FOR SUCH DAMAGES, OR FOR ANY OTHER SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES HOWEVER CAUSED.  Further, the Company shall not be liable for any services or assistance that is not required under the Agreement or any representation or warranty of any third party.

Article 21 (Insurance)

Member acknowledges that it is Member’s responsibility to obtain and maintain business liability and property insurance in sufficient limits to cover the risks set forth in this Agreement.  With respect to Entity Members, Entity Member represents and warrants that it shall obtain proper workers’ compensation and employer’s liability insurance to cover its Member Employees, if any.

Article 22 (Governing Law)

This Agreement and the rights and obligations of the Parties hereto shall be governed, construed, and enforced in accordance with the laws of the State of California, without regard to its choice of law principles. 

Article 23 (Dispute Resolution)

The Parties agree that any litigation arising under or in any way directly or indirectly relating to this Agreement must be brought before and determined by a Court of competent jurisdiction in San Francisco County, California or in the United States District Court for the Northern District of California.  The Parties hereby specifically waive the right to contest the personal jurisdiction and venue of the courts of San Francisco County, California or the United States District Court for the Northern District of California.  If any legal action is required to enforce the terms of this Agreement, the prevailing Party shall be entitled to the reasonable costs of enforcement, including attorneys’ fees.

Article 24 (Class Action Waiver)

Except to the extent expressly prohibited by applicable law, any proceeding to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. Neither Member nor the Company will seek to have any dispute heard as a class action or in any proceeding in which either party acts or proposes to act in a representative capacity. No proceeding will be combined with another without the prior written consent of all parties to all affected proceedings. Member and the Company also agree not to participate in claims brought in a private attorney general or representative capacity, or any consolidated claims involving another person’s account, if the Company is a party to the proceeding. EXCEPT TO THE EXTENT EXPRESSLY PROHIBITED BY APPLICABLE LAW, MEMBER IS GIVING UP MEMBER’S RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM MEMBER MAY HAVE AGAINST THE COMPANY INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS.

Article 25 (Excusable Delays)

The Company shall not be liable or in breach or default of its obligations under the Agreement to the extent performance of such obligations is delayed or prevented, directly or indirectly, due to causes beyond its reasonable control, including, but not limited to, acts of God, fire, terrorism, war (declared or undeclared), epidemics, pandemics, material shortages, insurrection, acts (or omissions) of Member or its agents, any act (or omission) by any governmental authority, strikes, labor disputes, accidents, transportation shortages or delays, shortage or inability to obtain materials or components, supplier or vendor non-performance, embargo, or government act.  The performance date shall be extended for a period equal to the time lost by reason of delay, plus such additional time as may be reasonably necessary to overcome the effect of the delay.  The Company shall have the right to terminate this Agreement if there is an excusable delay lasting longer than 60 days.

Article 26 (Assignment)

Member may not transfer or otherwise assign any of Member’s rights or obligations under this Agreement without the Company’s prior consent.  The Company may assign this Agreement to a third party at any time without the consent of Member.

Article 27 (Waiver)

The waiver by the Company of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.

Article 28 (Severability)

If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force.  Furthermore, in lieu of each invalid or unenforceable provision there shall be added automatically as part of this Agreement a provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible and be legal, valid, and enforceable.

Article 29 (Relationship of the Parties)

THIS AGREEMENT IS NOT INTENDED TO CREATE A LEASE, A TENANCY INTEREST, LEASEHOLD ESTATE, OR ANY OTHER INTEREST IN REAL PROPERTY IN FAVOR OF MEMBER, BUT MERELY CREATES A REVOCABLE LICENSE IN ACCORDANCE WITH THE TERMS HEREOF.  The whole of the Premises, including the Workspace, remains in the Company’s possession and control.  The Company is granting Member a temporary, revocable license to use the Workspace so that the Company can provide the Services to Member. Notwithstanding anything in this Agreement to the contrary, the Company and Member agree that the relationship between the Parties is not that of landlord-tenant (or subtenant) or lessor-lessee (or sublessee) and this Agreement in no way shall be construed as to grant Member’s agents, employees, contractors, guests, or invitees any title, easement, lien, possession or related rights in the Company’s business, the Premises, the Workspace or anything contained in or on the Premises or Workspace. The Parties hereto shall each be independent contractors in the performance of their obligations under this Agreement, and this Agreement shall not be deemed to create a fiduciary or agency relationship, or partnership or joint venture, for any purpose. Neither Party will in any way misrepresent our relationship.

Article 30 (Subordination)

This Agreement is subject and subordinate to the Company’s lease with the Company’s landlord of the Premises and to any supplemental documentation and to any other agreements to which the Company’s lease with such landlord is subject to or subordinate (“Master Lease”).  This Agreement shall terminate simultaneously with the termination of the Master Lease or the Company’s fabbit operations at the Premises for any reason.  Member is not a party to nor shall Member have any rights under the Master Lease.