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Legal Agreement: Terms of Service

MEMBERSHIP AGREEMENT

This Membership Agreement (this “Agreement”) is made and entered into, by and between 140 Keller Street Operator, LLC, an Ohio limited liability company (the “Operator”) and the member identified as such on the Basic Terms page (the “Member”).

Use of Premises

  1. The Operator hereby grants to the Member a non-exclusive, revocable monthly license (the “Membership”) to use and occupy certain shared office space within the building located at 140 Keller Street, Petaluma, California (the “Premises”). The Membership shall commence on the date set forth on the Basic Terms page (the “Commencement Date”) and shall continue from month to month (the “Membership Period”) until terminated in accordance with this Agreement.
  2. The Premises may only be used for general office purposes and ancillary uses. While in the Premises, the Member (and the Member’s guests and invitees) shall conduct themselves in accordance with this Agreement and the rules of conduct issued by the Operator from time to time (the “Rules of Conduct”). A copy of the current Rules of Conduct is attached hereto as Exhibit “A”.
  3. The Member is also granted the right to use (i) certain office equipment, IT-related equipment, furniture and furnishings which the Operator provides to the other Members who conduct their businesses from the Premises, and (ii) in common with the other Members, any kitchen, pantry, storage, coffee areas and other common areas within the Premises (collectively, with clause (i), the “Services”), subject to such rules as shall be issued by the Operator from time to time. The Member acknowledges that some of the foregoing Services shall be included in the Membership Fee (as defined below) and others will be considered “Additional Services” (as defined below), and if selected by the Member, will be charged for in addition to the Membership Fee (as defined below).
  4. The Member acknowledges that individual work spaces in the Premises shall not be separately demised or necessarily separated physically and, therefore, each Member has access to each other Member’s work area, with the sole exception of designated shared spaces and/or other areas and offices specifically designated by the Operator for “Full Access Memberships”.

Membership, Fees, Payment and Termination

  1. The “Membership Type” is the specific level of Services designated by the Operator and selected by the Member. Different Membership Types may have various levels of Services and shall have various levels of Membership Fees.
  2. The “Membership Fee” is an amount determined by the Operator, from time-to-time, as the price in exchange for the Membership granted to the Member. The Operator will establish and publish specific Membership Fees for each Membership Type. The current pricing of the Membership Fees (and the costs for certain Additional Services) is set forth on Exhibit “B” attached hereto.
  3. The Member shall pay the Operator the Membership Fee monthly in advance, without any setoffs or deductions whatsoever and without demand, in the manner set forth below. Additionally, upon establishing a new membership, each new Member will pay the Operator a one-time setup fee in the amount set forth on the Basic Terms page (the “Setup Fee”). The Operator will charge the Member’s credit card or bank account for the total amount of the monthly Membership Fee, the Setup Fee, and any fees for Additional Services. Charges for Additional Services (for the prior month) will be added to the Member’s payment of the Monthly Membership Fee. A refused credit card transaction or direct bank withdrawal could result in the Operator’s termination of this Agreement. The Members are obligated to promptly notify the Operator of any changes to their credit card number, expiration, or billing address or bank account information and/or update their payment details within their Member account. By accepting the terms of this Agreement, the Member hereby authorizes the Operator to initiate charges to the credit card account and/or bank account on file on an ongoing monthly basis for the duration of the Membership Period.
  4. Additional Services provided by the Operator and included within the Membership Fee are mail reception, office cleaning services, and trash removal. The Membership Fee also includes the cost of all utilities and other building services and amenities included with the Membership Type.
  5. “Additional Services” includes optional services and amenities as made available from time to time at an amount determined by the Operator, in its sole discretion, and selected to be used and paid for by the Member. Additional Services may include printing/copying/scanning services, access to conference rooms, event spaces, or other Operator-designated spaces and locations, storage lockers, computer technical support, audio and visual equipment, food and beverage services, concierge services, and other services.
  6. Subject to earlier termination by the Operator as provided herein, this Agreement commences as of the Commencement Date and continues in effect on a month-to-month basis unless and until terminated by the Operator or the Member by providing the other party with at least thirty (30) days written notice.
  7. Upon the termination of this Agreement, the Member shall vacate the Premises, shall remove all of the Member’s personal property therefrom, and shall cease all use of the Services provided by the Operator. All tangible property provided as part of the Services will be returned to the Operator in substantially the same condition as existed on the Commencement Date, reasonable wear and tear excepted.

Access to Premises

  1. The Member represents that it has made a thorough inspection of the Premises and the tangible property included within the Services, and agrees to take the same in its “as-is” condition as of the Commencement Date. The Operator shall have no obligation to alter, improve or decorate the Premises for the Member’s use and occupancy. The Member shall not make or cause to be made any alterations, installations, improvements, additions or physical changes in or about the Premises without the Operator’s prior written consent, which consent may be withheld in the Operator’s sole and absolute discretion.
  2. The Operator shall have the right, throughout the Membership Period, to enter any portion of the Premises to inspect the same, to confirm the Member’s compliance with this Agreement, and to make such repairs, alterations, improvements or additions as the Operator may deem reasonably necessary, in its sole and absolute discretion, provided, that the Operator shall use commercially reasonable efforts to minimize any interference with the Member’s use of the Premises.
  3. The Member shall have access to the Premises 24 hours a day, seven days a week, 365 days per year (366 for leap years) subject to change at the Operator’s sole discretion.
  4. The Member understands that the Operator will not be insuring any of the personal property of the Member (whether or not such personal property is stored in lockers provided by the Operator, or in other areas within the Premises) nor will it be obtaining liability insurance which covers the Member. The Member is encouraged to obtain its own insurance covering its personal property, and also to obtain its own policy of commercial liability insurance to protect the Member against claims of third parties for damage to persons or property. The Operator shall have no liability or responsibility to the Member, and the Member shall have no claim against the Operator, for any damage or loss incurred by the Member with respect to any personal property of the Member while located in the Premises, or any injury to the Member or the Member’s guests and invitees, except as a result of the gross negligence or willful misconduct of the Operator.

Internet Access

  1. As part of the Membership Fee, the Member will be provided with internet access within the Premises. The Member is prohibited from using a mail server, hosting internal websites, dispatching broad based emails (spamming), utilizing internal FTP services, Wi-Fi wireless internet hubs, voice over IP equipment, applications, or practices that the Operator determines to utilize excessive bandwidth.
  2. The Operator will take commercially reasonable steps to maintain the continuity of and protect the wireless internet from unauthorized use. However, the Operator accepts no liability for any breach, suspension, interruption, temporary unavailability, loss of data or faults of any kind occurring in the internet service, or any consequence thereof.
  3. In order to protect the Member’s computer(s) from unwanted hackers and viruses, and to prevent the inconveniencing or slowing down of other internet users at the Premises, it is the Member’s sole responsibility to provide its own firewall and anti-virus protection on its computer(s). In the event that the Member’s computer(s) becomes infected or hacked, regardless of whether it has installed firewall or anti-virus protection. The Operator shall not be responsible for any damage suffered to the Member’s computer(s). If the Operator notices or suspects that the Member’s computer(s) may be infected or hacked, the Operator reserves the right to schedule a time to immediately inspect the Member’s computer(s). If the Operator then determines that the Member’s computer(s) is infected or has been hacked and is causing a disruption or slow down to the shared network, the Operator reserves the right to immediately disconnect the subject computer(s) from internet access at the Premises. Due to numerous incoming spam issues clogging up many email systems, the Operator highly recommends that the Member install spam-filtering software to help eliminate congestion and the slowing down of the network at the Premises.

Full Access Memberships

  1. The Members who purchase a “Full Access Membership” (hereinafter referred to as “Full Access Member(s)”) will have access to the designated “Full Access Work Spaces” (as determined, from time to time, by the Operator, in its sole and absolute discretion). Some Full Access Work Spaces are shared (i.e., open floorplan) areas designated for and accessible by Full Access Members, and some are private (i.e., a private office). Pricing for shared and private Full Access Work Spaces may differ, but will be determined in the Operator’s sole and absolute discretion.
  2. Each Full Access Member will have the exclusive right to one dedicated workstation (hereinafter referred to as “Full Access Workstations”) located within a Full Access Space during the term of their Full Access Membership. A Full Access Workstation will include, at minimum, a desk and chair with appropriate electronic and internet access, lighting, etc. Other special needs may be accommodated (i.e. VOIP, etc.), if possible, by the Operator, in its sole and absolute discretion.
  3. Full Time Members may select any Full Access Workstation available as of the Commencement Date, and may switch to another Full Access Workstation after first obtaining the Operator’s prior written approval.
  4. Only one (1) Full Time Member shall be permitted to occupy any given Full Time Workstation.

Confidentiality

  1. The Member acknowledges and agrees that due to the open and shared nature of the Premises, the Members and their guests and other invitees may have access to Confidential Information of the Operator or other Members working at the Premises. “Confidential Information” shall mean any and all information, in whole or in part, that is either intentionally, or unintentionally disclosed by either the Operator, or any other Member, which information is non-public, confidential or proprietary in nature. Confidential information also includes, without limitation, information about business, sales, operations, known-how, trade secrets, business affairs, any knowledge gained through examination or observation of or access to the Premises, computer systems, and/or books and records of the Operator, or other Members, any analysis, compilations, studies or other documents prepared by the Operator, or other Members, or otherwise derived in any manner from the Confidential Information that the Member is obliged to keep confidential or know or has reason to know should be treated as confidential.
  2. With respect to the Confidential Information, the Member will: (a) maintain all Confidential Information in strict-confidence; (b) not disclose Confidential Information to any third party, except to the Member’s attorneys, consultants, and other professional advisors on a “need to know” basis, or as required by law. The Member is responsible and liable for any breach of this confidentiality provision by its guests or invitees.
  3. All Confidential Information remains the sole and exclusive property of the Operator or the disclosing party. The Member acknowledges and agrees that nothing in this Agreement will be construed as granting any rights to it, by license or otherwise, in or to any Confidential Information or any patent, copyright, trademark or other intellectual property proprietary rights of the Operator or any other Member. The Member shall not display or use the Operator’s trade name, trademarks, service marks, logos, domain names, and other distractive brand features of the Operator without prior written approval of the Operator.

Publishing Rights

  1. The Member hereby consents and agrees that the Operator has full and unrestricted publishing and use rights for any photographs (digital or print) taken at the Premises, including, but not limited to photographs of the Member and the Member’s workspace.

Damage or Destruction

  1. If any part, or all of the Premises become inaccessible or unfit for use due to damage or destruction (other than as a result of anything the Member does or fails to do), then (a) the whole or an appropriate proportion (having regard to the nature and extent of the destruction or damage) of the Membership Fee shall cease to be payable until the Premises are fully accessible and fit for use, and (b) if the damage or destruction affects the whole or a substantial part of the Premises and it is likely to take more than two (2) weeks to make the Premises again fully accessible and fit for use, either the Operator or the Member may terminate this Membership Agreement by giving notice to the other, in which event this Agreement will immediately terminate.

Indemnification

  1. The Member hereby agrees to indemnify, defend and hold harmless the Operator (and its officers, agents, directors, members, managers, representatives, employees and their respective successors and assigns) from and against all claims, demands, liabilities, losses, damages, costs, expenses, actions, causes of action, lawsuits, judgments, fines and penalties (collectively, “Claims”) in any way related to or arising out of the Member’s use of the Premises or the Services, or resulting from the breach of this Agreement by the Member. Notwithstanding the foregoing, the Member will have no indemnification obligation under this Section to the extent that any Claims are the result of the gross negligence or willful misconduct of the Operator.

 

 

Not a Lease

  1. This Agreement does not and shall not be deemed to constitute a lease or conveyance of the Premises, or any part thereof, by the Operator to the Member, or to confer upon the Member any right, title, estate or interest in the Premises or any part thereof, except for the license and rights to use the Premises and the Services expressly granted to the Member pursuant to this Agreement. Notwithstanding the fact that this Agreement is a license and not a lease (and, therefore, the landlord-tenant laws do not govern this Agreement), the Member hereby specifically waives any and all rights that it may have under any applicable landlord-tenant laws.

Default

  1. In addition to any and all other rights or remedies provided in this Agreement or which the Operator may have at law, in equity, or otherwise, if the Member shall breach or fail to comply with any of its obligations under this Agreement, then the Operator shall have the right to immediately terminate this Agreement upon notice to the Member.
  2. If this Agreement is terminated for any reason and the Member fails to remove its personal property from the Premises, then in such an event, the Operator shall be permitted, in its sole discretion, to either store the subject personal property for a period of time to be determined by the Operator, or to dispose of the subject personal property as the Operator sees fit. If the subject property is stored, the Member shall be responsible for any and all costs and fees associated with the same, including, without limitation, reasonable attorney’s fees. The Member hereby releases the Operator from any Claims that may arise from the actions the Operator takes pursuant to this Section.

Retainer

  1. Upon execution of this Agreement, the Member will deliver to the Operator a service retainer (“Service Retainer”) in the amount set forth on the Basic Terms page. The Service Retainer will be held as a retainer for performance of all of the Member’s obligations under this Agreement and is not intended to be a reserve from which Membership Fees, or other sums due hereunder from the Member, may be paid. Subject to the complete satisfaction of the Member’s obligations under this Agreement, the Operator will return the Service Retainer, or any balance after deducting outstanding fees and other costs due to the Operator, to the Member within thirty (30) days (or earlier if required by applicable law) after the termination or expiration of this Agreement.

Additional Provisions

  1. Notices. All notices required or permitted to be given pursuant to this Agreement shall be in writing, and shall be delivered either personally, by overnight delivery service or by U.S. certified or registered mail, postage prepaid, return-receipt requested and addressed to the parties at their respective addresses as they appear below their signatures hereon. Notices may also be given by email transmission to the email addresses which appear below the parties’ respective signatures hereon, provided that a copy of the notice is also sent by one of the other above-described methods of service.  The parties may change their addresses or email addresses for notice by giving notice of such change in accordance with this section.  Notices sent by overnight delivery service shall be deemed received on the business day following the date of deposit with the delivery service.  Mailed notices shall be deemed received upon the earlier of the date of delivery shown on the return-receipt, or the third business day after the date of mailing.  Notices sent by email transmission shall be deemed served on the date of transmission, provided that such notices are sent prior to 5:00 p.m. (California time), otherwise on the next business day. 
  2. Assignment. This Agreement may not be assigned by the Member without the prior written consent of the Operator, which may be given or withheld in the Operator’s sole and absolute discretion.
  3. Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California.
  4. Amendments. This Agreement may be amended at any time by the Operator, in its sole and absolute discretion. The Member’s continued use of the Premises and the Services following receipt of notice of an amendment shall be deemed an acceptance of such amendment.
  5. Waiver/Severability. If any provision of this Agreement is held to be void, invalid or otherwise unenforceable (either in whole or in part), the remaining portions of this Agreement shall remain in effect and the parties hereto shall use their best efforts to substitute the void, invalid or un- enforceable provision with a new provision of like intent and effect. If either party waives a right granted in this Agreement, it must be done so in writing and signed by the party holding that right. If a party fails to exercise a right, it should not be interpreted as a waiver to exercise that same right, or any other right, in the future.
  6. Entire Agreement. This Agreement constitutes the entire understanding between the parties hereto with respect to the subject matter contained herein, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter.
  7. Counterparts. This Agreement may be executed in one (1) or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one (1) and the same instrument. Copies of signatures on this Agreement transmitted by email (in pdf format) shall be binding on the parties to the same extent as “wet ink” original signatures.
  8. Attorneys Fees. Should either party be required to bring legal action (including arbitration) to enforce its rights under this Agreement, the prevailing party in such action shall be entitled to recover from the losing party its reasonable attorneys’ fees and costs in addition to any other relief to which it is entitled.
  9. Disclaimer of Warranties. The Operator hereby disclaims all warranties and representations, whether express, implied or statutory, including, but not limited to, any warranties of or related to: merchantability, fitness for a particular purpose or condition of “quiet enjoyment,” except for those representations and warranties expressly set forth in this Agreement.
  10. Exclusion of Certain Damages. To the maximum extent permitted by applicable law, in no event shall the Operator be liable for any incidental, indirect or consequential damages whatsoever (including, but not limited to, damages for: loss of profits, loss of confidential or other information, business interruption or loss of privacy) arising out of or in any way related to the use of the Premises or the Services by the Member, or which otherwise may arise in connection with this Agreement.
  11. Limitation of Liability and Remedies. The parties acknowledge and agree that, in the event of any breach of this Agreement by the Operator, the Member’s actual damages would be extremely difficult and impractical to ascertain, and that an amount equal to three (3) month’s Membership Fee is a fair and reasonable estimate of such damages. This provision is intended to constitute “liquidated damages” under California Civil Code Section 1671.
  12. Arbitration.

               (a)         Any dispute, controversy or claim arising out of or in relation to this Agreement, or at law, or the breach, termination or invalidity of this Agreement, that cannot be settled amicably by agreement of the parties to this Agreement shall be finally settled in accordance with the arbitration rules of JAMS then in force, by one or more arbitrators appointed in accordance with said rules. The place of arbitration shall be San Francisco, California.

               (b)        The arbitration proceedings shall be confidential. The award rendered shall be final and binding on both parties. Judgment on the award may be entered in any court of competent jurisdiction.

  1. Class Action Waiver. Any proceeding to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. Neither the Member nor the Operator 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. It is also mutually agreed that the parties will not participate in claims brought in a private attorney general or representative capacity, or any consolidated claims involving another person’s account, if the Operator is a party to the proceeding. THE MEMBER IS GIVING UP ITS RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM THAT THE MEMBER MAY HAVE AGAINST THE OPERATOR, INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS
  2. Release. The Member hereby waives any and all Claims against the Operator (and its subsidiaries, affiliates, divisions, and their past, present and future officers, agents, shareholders, members, representatives, employees and their respective successors and assigns) which the Member may now have or which the Member may hereafter acquire in connection with this Agreement, and the use of the Premises and the Services by the Member, whether known or unknown, absolute or contingent, except for claims of gross negligence or willful misconduct. The Member hereby waives the provisions of California Civil Code Section 1542 which reads 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.”

  1. Force Majeure. Except as provided herein, if performance of any obligation under this Agreement is prevented by any so-called “acts of God,” strikes, labor or material shortages, war, riot or civil insurrection, pandemic, epidemic or shutdowns resulting from governmental orders, or any similar events which are unforeseeable and reasonably beyond the control of the parties, then performance of such obligation shall be excused for the duration of such event, but not longer than ninety (90) days. The foregoing shall not relieve the Member from its obligation to pay Membership Fees or any other amounts due under this Agreement. It is expressly agreed that the foregoing includes any shutdown or similar orders, or restrictions on occupancy resulting from the COVID-19 pandemic, or any similar pandemic or epidemic in the future.  Moreover, the Operator shall have no liability for any cessation, termination or shutdown of utility services to the Premises, or any internet service, from any cause whatsoever, unless resulting from the non-payment of utility or internet charges by the Operator.