TERMS & CONDITIONS 1. THE BENEFITS OF MEMBERSHIP (a) Services. Subject to the terms of this agreement, we will provide each Member the services described below. These services are referred to in this agreement as the “Services.” • Access to the office space specified in the Membership Details form. • Regular maintenance of the office space, provided that we will not be responsible for damage exceeding normal wear and tear. • Furnishings for the office space of the quality and in the quantity typically provided to other office space or work station members, as appropriate, in the building. • Subject to each Member’s acceptance of and continued compliance with the terms of service, access to and use of the CoLab-Factory.com business networking site. • Access to and use of the shared Internet connection. • Use of the printers/copiers/scanners. You are entitled to a number of printouts and copies per month specified in the Membership Details form. The number of print-outs and copies may not be rolled over from month to month. Printouts and copies in excess of the amount specified are subject to overage fees. • Subject to availability, use of the conference rooms during regular business hours on regular business days. You are entitled to a number of hours per month specified in the Membership Details form. The conference room allowance may not be rolled over from month to month. Use of the conference rooms in excess of such number of hours is subject to overage fees. • Heat and air-conditioning in the office space during regular business hours on regular business days. • Acceptance of mail and deliveries on behalf of your business during regular business hours on our regular business days. • Opportunity to participate in member-only events, benefits and promotions. (b) Business Hours/Days. “Regular business hours” are generally from 9:00 a.m. to 6:00 p.m. with the exception of days prior to U.S. federal holidays, when our regular business hours end at approximately 2:00 p.m. “Regular business days” are all weekdays, except U.S. federal holidays and up to three other days of which we will inform you. (c) Updating the Member List. You are responsible for maintaining the accuracy of the names of the Members on the Member List attached to this agreement. If you have any changes to the individuals designated as Members, before such changes take effect, the primary member must email us to the email address specified at the bottom of the cover page to this agreement. In this email, the primary member must include the name(s) and email address(es) of the departing and new member(s) and the effective date of this change. Only those individuals set forth on the Member List will be deemed to be “Members” and entitled to the benefits described in this agreement. If the number of Members exceeds the number allocated on the Membership Details form, you will be required to pay the additional fee described on the Member List. We reserve the right to limit the number of additional members in connection with this membership agreement. CoLab-Factory Membership Agreement: T&C 2 001 (d) Overage Fees. This membership entitles the Members to a certain number of hours of conference room use and copies/printouts per month specified on the Membership Details form. If the Members exceed such allocated amounts, you will be responsible to pay fees for such overages. As of the date of this agreement the overage fee for small conference rooms is $30, medium conference room $40 and the large conference room $50 per hour, and the overage fee for copies/ printouts is 10¢ per black and white copy/printout and 30¢per color copy/printout. (e) Late Fees. If payment for the monthly membership fee or any other accrued and outstanding fee is not made by the tenth of the month, you will be responsible to pay a $50 late charge. TERMS & CONDITIONS 2. MEMBERSHIP FEES AND OTHER FINANCIAL STUFF (a) Set-up and Commitment Fees. Upon submitting a signed and completed agreement, you will be obligated to pay the nonrefundable set-up fee and the commitment fee, each in the amount indicated on the Membership Details form. This agreement will be effective only upon our receipt of your signed and completed agreement and the payment of these fees. (b) Security Deposit. On the start date, the commitment fee will convert automatically into a security deposit. The security deposit is not intended to be a reserve from which fees may be paid. In the event you owe us other fees, you may not rely on deducting them from the security deposit, but must pay them separately. The security deposit will be returned to you no later than thirty (30) days following the termination of this agreement, subject to the complete satisfaction of your obligations under this agreement. The commitment fee/ security deposit is generally equal to 1 1⁄2 times your monthly membership fee, provided however, if you pay via credit card the commitment fee/security deposit will be equal to 2 1⁄2 times your monthly membership fee. (c) Membership Fee. During the term of this agreement, we will process payment for your membership fee and other outstanding fees, in advance, no later than the fifth (5th) business day of each month. The membership fee covers memberships for only the number of Members indicated. Additional memberships will result in an increased membership fee. (f) Form of Payment. We accept payment of all amounts specified in this agreement solely by direct withdrawal from your bank account or credit card. If you elect to pay via direct withdrawal, you are required to deliver to us a voided check from this account, maintain sufficient money in your bank account to pay the fees described in this agreement and to inform us promptly of any changes to this account. If you elect to pay via credit card, you are required to inform us promptly of any changes to such credit card and ensure that you replace such credit card prior to its expiration date. Credit card service fees / charges will be paid for by you. Changes to your payment method will not be accepted in the last fifteen (15) days of the calendar month. Changing your payment method may result in a change in the amount required under this agreement to be held as a security deposit. Only a single checking or savings account 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, we may require you to make payments via direct withdrawal. (g) Changes to Membership and Overage Fees. The membership fee is subject to annual increases every year during the term of this agreement. Fees for overages for printouts/ copies and conference room hours are subject to increase from time to time. We will notify you at least sixty (60) days prior to these increases. (h) Taxes. Applicable taxes will be paid for by you. (i) Outstanding Fees. We may withhold services or terminate this agreement if any outstanding fees are due or if you or any Member does not comply with the terms and conditions of this agreement. When we receive funds from you, we 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 funds received will be applied to current fees due. CoLab-Factory Membership Agreement: T&C 3 001 TERMS & CONDITIONS 3. TERM AND TERMINATION (a) Term. This agreement will be effective when signed by both parties and payment is made by you of the set-up and commitment fees. Each membership will begin on the later of the Start Date specified in the Membership Details Form and the date you request the addition of such individual to the Member List. Each membership will terminate upon the earlier of the termination of the agreement, your removal of a Member from the Member List or our notification to you that a Member violated these Terms and Conditions. If the Start Date is a Business Day, the Members will be entitled to move into the office space on the Start Date. If the Start Date is not a Business Day, the Members will be entitled to move into the office space on the first Business Day after the Start Date no earlier than 11 a.m. (b) Cancellation Prior to Start Date By You. You may cancel this agreement prior to the Start Date upon delivery of notice to us and may be entitled to a full or partial refund of the commitment fee upon the following terms: (i) if notice of termination is received by us more than twenty one (21) days prior to the Start Date, you will be refunded all fees paid by you and received by us; and (ii) if notice of termination is received by us less than twenty one (21) days from the Start Date, you will be refunded fifty percent (50%) of the commitment fee. (c) Office Space Not Timely Available. If we are unable to make the office space available by the Start Date, we will not be subject to any liability therefore, nor will such failure affect the validity of this agreement. In this event, you will not be obligated to make payments of the membership fee until the office space is made available to you. If the office space is not made available to you within fifteen (15) days of the Start Date, you may terminate this agreement by providing us with notice of such termination at any time before the office space is made available to you. If you elect to terminate this agreement under this provision, we will refund to you all fees paid by you and received by us. (d) Termination After the Start Date by You. You may terminate this agreement by delivering to us an exit form executed by the Primary Member at least thirty (30) days prior to the termination. You expressly agree that you may specify only the last business day of the calendar month as the termination date and you will not be entitled to pro ration with respect to such last month’s membership fee. For example,if you deliver a 30-day termination notice on March 15, the termination will not be effective until April 30. This paragraph also applies to changes of office space within the Premises initiated by you. On such last business day, you must vacate the office space no later than 4:00 p.m. (e) Termination After the Start Date by Us. We may immediately terminate this agreement: upon breach of this agreement by you or any Member; upon termination of our rights in the Premises; or at any other time, when we, in our reason-able discretion, see fit to do so. You will remain liable for past due amounts and we may exercise our rights to collect due payment despite termination of this agreement. (f) Removal of Property upon Termination. Prior to the termination of this agreement, you will remove all of your, the Members’, and their guests’ property from the office space. After providing you with reasonable notice, we will be entitled to dispose of any property remaining in or on the office space after the termination of this agreement without any obligation to store such property, and you waive any claims or demands regarding such property or our handling of such property. You will be responsible to pay any fees reasonably incurred by us regarding such removal. Following the termination of this agreement, we will not forward or hold mail or other packages delivered to us. (g) Changes to or Removal of Primary Member. A Primary Member generally has the sole authority to make changes to or terminate this agreement. However, an executive officer of the company will have the authority to override the request of a Primary Member, provided that we receive such a request within 24 hours following such Primary Member’s request. An executive officer of the company will also have the authority to remove or replace the individual serving as the Primary Member. In certain circumstances, the individual designated as the Primary Member may cease to provide services to the company or cease using the office space regularly. Unless we receive instructions from an executive officer of the company, we will use our reasonable judgment in designating a replacement Primary Member. We will be entitled to rely on communications to or from such person as notice from or to the company. We will be entitled to request reasonable information to confirm that an individual claiming to be an executive officer of the company truly is one. CoLab-Factory Membership Agreement: T&C 4.(a) TERMS & CONDITIONS HOUSE RULES You agree that: • keys, key cards and other such items used to gain physical access to the building or the office space remain our property. You will cause the Members to safeguard our property and you will be liable for replacement fees should any such property be lost, stolen or destroyed; you shall promptly notify us of any change to your contact and payment information; we will provide notice to you and the Members of any changes to services, fees, or other updates to the email addresses provided by you. It is your responsibility to read such emails. carts, dollies, and other freight items which may be made available may not be used in the passenger elevator except at our discretion, if at all; for security reasons, we may regularly record via video certain areas in the Premises; we may disclose information about you or the Members as necessary to satisfy any applicable law, regulation, legal process or government request; you and the Members will abide by other rules and regulations as determined by us which are communicated to you by email. We may add, delete or amend the rules and regulations at our reasonable discretion and with notice to you. you acknowledge that your office space has a limited capacity. Whether or not you have paid for additional members for your space, no more than that capacity is permitted to work in your space at any given time. The capacity of your office space is on the Membership Details form. common spaces are to be enjoyed by our members and guests, for temporary use and not as a place for continuous, everyday work. (b) No Member will: perform any activity that is reasonably likely to be disruptive or dangerous to other members, their guests, or their property; use the Services to conduct or pursue any illegal activities; use the Services to conduct any activity that is generally regarded as offensive; attach or affix any items to the walls, install antennas, or telecommunication lines or devices in the office space or bring additional furniture into the office space, in each case without our prior written consent; misrepresent himself or herself to the CoLab-Factory community, either in person or on CoLab-Factory.com; take or copy information belonging to other members or their guests; use the name “CoLab-Factory” or use pictures or illustrations of the Premises in any advertising, publicity or other purpose, without our prior written consent; use the office space in a “retail,” “medical,” or other nature involving frequent visits by members of the public; make any copies of any keys or other means of entry to the Premises or lend, share or transfer any keys or keycards to any third party; allow any guest(s) or such Members to enter the building without registering such guest(s) according to our policies. CoLab-Factory Membership Agreement: T&C 5 001 TERMS & CONDITIONS 5. ADDITIONAL AGREEMENTS (a) Technology Release. In order to utilize all the functionalities offered by us, it may be necessary to install software onto a Member’s computer. In addition, from time to time, at a Member’s request, we or an affiliate may help troubleshoot problems a Member may have in trying to access certain functionalities, such as printing or accessing the Internet. Regarding the foregoing, you agree that we and our affiliates: • are not responsible for any damage to any Member’s computer system related to such technical support or downloading and installation of any software; • do not assume any liability or warranty in the event that any manufacturer warranties are voided; and • do not offer any verbal or written warranty, either expressed or implied, regarding the success of any technical support. (b) Waiver of Claims. To the extent permitted by law, you, on your own behalf and on behalf of the Members, your employees, agents, and invitees, waive any and all claims and rights against us and our affilates, and each of our and their members, assignees, officers and directors resulting from injury or damage to, or destruction, theft, or loss of property or person. (c) Limitation of Liability. The aggregate monetary liability of us or our affiliates to you, the Members, or your or their guests for any reason and for all causes of action, will not exceed the total fees paid by you to us under this agreement. We and our affiliates will not be liable under any cause of action, for any indirect, special, incidental, consequential, or punitive damages, including loss of profits or business interruption. You may not commence any action, or proceed-ing against us or our affiliate, whether in contract, tort, or otherwise unless the action, suit, or proceeding is commenced within one (1) year of the cause of action’s accrual. (d) Indemnification. You will indemnify us and our affiliates from and against any and all claims, liabilities, and expenses including reasonable attorneys’ fees, resulting from any breach of this agreement by you or the Members or their guests or pets or their actions or omissions. If any such claim, action, or proceeding is brought against us or our affiliates, you, will at your expense, upon written notice from us, defend such action or proceeding by counsel approved by us. You are responsible for the actions of and all damages caused by all persons and pets that you, the Members or their guests invite to enter the building. (e) Insurance. You are responsible to maintain, at your own expense, personal property insurance and commercial general liability insurance covering you and the Members for property loss and damage, injury to the Members and the Members’ guests and prevention of or denial of use of or access to, all or part of the Premises in form and amount appropriate to your business. We and landlord shall be named as additional insureds on any such policies of insurance. You shall provide proof of insurance upon our request. (f) Pets. If the office space is in a building designated by us to be one in which pets are permitted, and if any Member plans on regularly bringing a pet into the office space, we may require this Member to produce proof of vaccination for such pet in a form satisfactory to us. All pets should remain inside the office space unless accompanied by a Member. If any Member brings a pet into the building, you will be responsible for any injury caused by this pet to other members or guests or to the property of the foregoing. Neither we nor our employees will be responsible for any injury to such pets. We reserve the right to restrict any Member’s right to bring a pet into the building. (g) Other Members. We do not control and are not responsible for the actions of other members. If a dispute arises between members or their invitees or guests, we shall have no responsibility or obligation to participate, mediate or indemnify any party. (h) Class Action Waiver. Any proceeding to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. Neither you nor we will seek to have any dispute heard as a class action or in any other 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. CoLab-Factory Membership Agreement: T&C 6 001 TERMS & CONDITIONS 6. MISCELLANEOUS (a) Nature of the Agreement. Notwithstanding anything in this agreement to the contrary, you and we agree that our relationship is not that of landlord-tenant or lessor-lessee and this agreement in no way shall be construed as to grant you or any Member any title, easement, lien, possession or related rights in our business, the Premises or anything contained in the Premises. This agreement creates no tenancy interest, leasehold estate, or other real property interest. This agreement shall not be deemed to create a fiduciary or agency relationship, or partnership or joint venture. Neither party will in any way misrepresent our relationship. (b) Updates to the Agreement. We may from time to time update this agreement and will provide notice to you of these updates. You will be deemed to have accepted the new terms of the agreement following the completion of one (1) full calendar month after the date of notice of the update(s). Continued use of the office space or Services beyond this time will constitute acceptance of the new terms. This paragraph will not apply to changes to membership and overage fees, which will be governed by section 2(f ) of this agreement. (c) Governing Law. This agreement is governed by the laws of the State of New York, without giving effect to any conflict of law principle that would result in the laws of any other jurisdiction governing this agreement. Any such action, or proceeding will be litigated in courts located in New York, New York, to the extent permitted by law. You hereby irrevocably agree to waive any right to a jury trial of any such claim or cause of action. (d) Waiver. Neither party shall be deemed by any act or omission to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by the waiving party. (e) Subordination. This agreement is subject and subordinate to our lease with our landlord of the Premises and to any other agreements to which our lease with this landlord are subject to or subordinate. (f) Extraordinary Events. Neither party is liable for, and will not be considered in default or breach of this agreement on account of, any delay or failure to perform as required by this agreement (with the exception of any obligations on yourpart to pay any sum of money due to us under this agreement) as a result of any causes or conditions that are beyond such party’s reasonable control and which such party is unable to overcome by the exercise of reasonable diligence, provided that the affected party will use best efforts to resume normal performance. (g) Separable Provisions. Each provision of this agreement shall be considered separable. To the extent that any pro-vision of this agreement is prohibited, this agreement shall be considered amended to the smallest degree possible in order to make the agreement effective under applicable law. (h) Survival. All provisions of this agreement reasonably expected to survive the termination of this agreement will do so. (i) 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 addresses specified on the cover sheet, except as otherwise provided in this agreement. The Primary Member is the only person who may send or receive notice on your behalf, except as otherwise provided in this agreement. ( j) Attorneys’ Fees. If any action, suit, or proceeding is instituted to interpret, enforce, or rescind this agreement, or otherwise in connection with this agreement, the prevailing party will be entitled to recover, in addition to any other relief awarded, the prevailing party’s reasonable attorneys’ fees and other fees, costs and expenses of every kind in connection with the action, suit, or proceeding, any appeal or petition for review, the collection of any award or the enforcement of any order, as determined by the court. (k) Headings. The headings in this agreement are for convenience only and are not to be used to interpret or construe any provision of this agreement. (l) No Assignment. You may not transfer or otherwise assign any of your rights or obligations under this agreement with-out our prior consent.MEMBER SERVICES + AMENITIES + CHARGES *subject to change As part of the membership fee, you are entitled to services and amenities, listed below are those services, amenities and charges. Membership: Virtual Office: SERVICES • high speed internet access • phone service w/ unlimited long distance • shared fax machines • shared color printer/copier/scan to email 120 b&w 20 color copies AMENITIES • shared refrigerator and microwave • additional storage space (not at this time) • filtered water • conference rooms • kitchen and break room/common eating area LATE CHARGES: Membership = $100 Day Player = $30 per day Community = $400 per month Office per person = $500 to $650 per month (offices flex in size so too the per person fee.) $125 per mo. Utilizing coworking space 1x per month and conference room 1x per month for 1 hr. Plus mail receipt @ #14-16 DeKalb Ave 3rd Fl Brooklyn NY. • receptionist • mail handling • FedEx / UPS / USPS deliveries • regular office cleaning • directory • projector for presentations • fresh coffee Conf. Room = $40 small, $50 medium, $60 large - per additional hr., Copies = .10 per b&w .30 per color copy. We are investigating weekly events and classes, as we evolve and grow with you, our members and discover your needs and wants, we will provide these offerings accordingly and figure in an agreeable price structure. CoLab-Factory Membership Agreement: Member List 9 001 PAYMENT AUTHORIZATION (DIRECT WITHDRAWAL) In order to maintain the memberships and for us to begin and continue to provide services to the Members, you hereby authorize us to withdraw from the bank account listed below all fees contemplated by the Membership Agreement. These fees include: • the monthly membership fee payable in advance during the term of the Membership Agreement; • fees for any overages in use of conference rooms or copies/printouts; • the initial commitment fee, which will convert into the security deposit; • the set-up fee payable prior to your usage of the office space; • any amounts payable to us for damage to the office space; • fees to replace any of our lost property, such as key cards and office keys; and • any other fees payable to us pursuant to the Membership Agreement. You understand that you will be responsible for overages beyond your allocated conference room hours ($40/$50/$60 hour) and allocated printouts and copies (currently, 10¢ b/w and 30¢ color). You authorize us to make payment pursuant to the method selected below for any upgrade to your office space or services requested by you. You agree to provide us with at least 15 days’ prior notice of any modification to your payment method. You agree to maintain sufficient funds in this account to satisfy your obligations under the Membership Agreement.
Cobot is the web platform used by CoLab-Factory to provide this website.
1.1. Upstream-Agile GmbH, Adalbertstraße 7-8, 10999 Berlin, registered with the commercial register of the local court (Amtsgericht) of Charlottenburg under HRB 110149 B (“upstream”) provides an application to manage coworking spaces via its website www.cobot.me (the “Service” or “Services” or “Cobot”) as further specified on www.cobot.me (the “Website”).
1.2. All contractual relationships between upstream and any customer of upstream using Cobot (“Customer”, together with upstream the “Parties”, each a “Party”) shall be governed by these terms of service (“Terms of Service”). By registering on the Website or using Cobot, the Customer agrees to be bound by these Terms of Service.
1.3. Standard business conditions and/or general terms and conditions of the Customer do not apply, regardless of whether or not upstream has expressly objected to them in a particular case.
2.1. Any use of Cobot requires prior registration on the Website by creating an account (“Account”) and the acceptance of these Terms of Service. Customer must provide accurate and complete information and keep the Account information updated.
2.2. Customer is solely responsible for the activity that occurs on his Account. Customer shall keep his login data (password) confidential and prevent any unauthorized use by third parties. He shall immediately inform upstream if there are indications that any third party is misusing his account.
3.1. Offers published by upstream on the Website are non-binding.
3.2. The Customer may use Cobot for a trial run after registering. The Customer may only register for a trial run once. If a Customer registers for more than one trial run, upstream will have the right to delete these additional Accounts.
3.3. By registering on the Website according to section 2 hereof and subscribing to a subscription plan, the Customer makes a binding offer to use the respective Services. The offer shall be deemed to be accepted by upstream by making available the respective Service. Upon the acceptance of a subscription a contract governed by these Terms of Service between the Customer and upstream is concluded (the “Contract”).
4.1. The price for using Cobot depends on the number of members which are using the coworking space of the respective Customer (each a “Member”).
4.2. The Customer will be required to provide upstream with billing and account information for credit card, debit or other payment systems, such as PayPal, (each a “Payment Source”) for which the Customer is authorized to approve charges to allow upstream to collect payment from the Customer for their subscription plan. The Customer authorizes upstream to automatically and immediately bill the Payment Source when payments for subscription plans are due. The Customer shall only be allowed to raise an objection to a bill/deduction within eighty days starting from the day the deduction was made. If the objection was not raised, the deduction is deemed accepted by the Customer.
4.3. The billing of a subscription plan is made on a pre-paid basis. The payment source will be billed within five bank working days of the beginning of the chosen subscription period and then on a monthly or, as applicable, annual basis.
4.4. The prices stated on the Website are net prices excluding VAT. All other charges in connection with the use of the Services shall be borne by the Customer.
5.1. The Contract runs for an indefinite time and will remain in effect until terminated by one of the Parties in accordance with the Terms of Service.
5.2. The Parties may terminate this Contract for any or no reason at their convenience to the end of each month.
5.3. The Customer having used the trial run may unsubscribe from Cobot anytime without giving reason and without notice by using the respective button in his/her account.
5.4. The right of termination for cause and without notice remains unaffected for both Parties. A good cause for termination shall include, but shall not be limited to, any of the following events:
5.4.1. the Customer fails to comply with any applicable legal provisions;
5.4.2. a serious breach of the Customer of obligations arising from these Terms of Service by the Customer;
5.4.3. an attempt a denial of service attack on any of the Services by the Customer or any attempt to hack or break any security mechanism on any of the Services;
5.4.4. the Customer fails to pay the fees for the ordered Services;
5.4.5. a proceeding to wind-up the Customer or similar is brought against, or by the Customer (especially including insolvency and creditor protection scenarios and similar).
5.5. Any termination declaration shall be made via the “termination” button within the Account.
5.6. In the event of termination,
5.6.1. the Account of the Customer will be disabled and the Customer may not be granted access to his/her Account or any files or other content contained in the Account although residual copies of information may remain in upstream’s system;
5.6.2. any rights of use granted to Customer for using Cobot shall expire immediately and Customer shall cease to use the Services;
5.6.3. upstream will not refund any prepaid fees to Customer.
5.7. After a period of inactivity, whereby a user fails to log in to an Account for a period of nine months, upstream reserves the right to disable or terminate the Account. If an Account has been deactivated for inactivity, the subdomain associated with that Account may be given to another Customer without further notice.
6.1. Subject to these Terms of Service, and for the duration of the Contract, upstream grants the Customer a non-exclusive license to use the Services, which non-exclusive license is hereby accepted by Customer (the “License”). The License shall be granted as non-exclusive, non-assignable, non- transferable, with no right to sub-license, worldwide limited right to use the Services. Customer is responsible for its staff’s compliance with the Terms of Service.
6.2. The scope of the License shall be subject to and limited by the number of Members as agreed between upstream and the Customer.
6.3. upstream does not claim any ownership in any of the content uploaded, transmitted or stored by the Customer in its Account. upstream will not use any of such content for any purpose except to provide the Customer with the Services.
7.1. The Customer agrees that he/she is responsible for its own communications and for any consequences thereof. The Customer shall act according to the destined functions of the Website and Services. Any inappropriate or illegal use, manipulation, or change of the Website and Services is prohibited. In particular, the Customer shall, shall not agree to, and shall not authorize or encourage any third party to:
7.1.1. use the Service to upload, transmit or otherwise distribute any content that is unlawful, defamatory, harassing, abusive, fraudulent, obscene, contains malware or is otherwise objectionable as reasonably determined by upstream;
7.1.2. upload, transmit or otherwise distribute content that infringes upon another party’s intellectual property rights or other proprietary, contractual or fiduciary rights or obligations;
7.1.3. prevent others from using the Service; or
7.1.4. use the Service for any fraudulent or inappropriate purpose.
7.2. upstream reserves the right to delete any infringing content according to this section 7, terminate the Services and/or suspend Accounts of a Customer that is violating any of these Terms of Service, in particular this section 7.
The Customer represents and warrants that (i) all information provided by him/her to upstream to participate in the Services is correct and current; and (ii) the Customer has all necessary right, power and authority to enter into the Contract and to perform the acts required of Customer hereunder.
9.1. The Customer will indemnify, defend, and hold harmless upstream and its officers, directors, employees for any and all claims, suits, litigation, causes of action, losses, damages, expenses, costs (including court costs and attorneys’ fees) and liabilities (“Losses”) that arise out of, or in connection with (i) the Customer’s use of the Website and/or Services; (ii) any breach by the Customer of any warranty defined in section 8; (iii) any claim that the Customer’s content distributed via the Services caused damage to a third party.
9.2. In cases of an aforementioned enforcement of claims by third parties, the Customer will provide upstream with all his information that is needed for the examination of the claim and for the defense against it. The Customer provides the information immediately, truthfully, and completely.
9.3. The regulation of liability of the Customer or his/her obligation of indemnification shall apply to the same extent in the event of an act of a Member of the Customer.
10.1. upstream’s liability for damages caused by or related to the exercise of rights and obligations under this Agreement shall be excluded. The limitation of liability shall not cover
10.1.1. damage from injury to life, body or health caused by upstream;
10.1.2. damages caused by upstream that are a result of willful intent or gross negligence;
10.1.3. damages caused by upstream as a result of slight negligence in the event of upstream’s breach of an essential contractual obligation which is indispensable for the duly execution of the contract and thereby jeopardizes the achievement of the contract purpose and such damage is typically foreseeable at the time of the infringement;
10.1.4. upstream’s liability in the event of the assumption of a warranty if an obligation infringement covered thereby triggers upstream’s liability.
10.2. Liability under the Product Liability Act (Produkthaftungsgesetz) shall remain unaffected.
10.3. The limitations and/or restrictions of upstream’s liability shall also apply to the personal liability of its legal representatives and vicarious agents.
10.4. upstream will not be liable hereunder by reasons of any failure to timely perform its services due to an event beyond its reasonable control, including acts of God.
The Customer agrees that upstream may use information of the Customer provided by him/her (i.e. the name/trademark) for marketing purposes as reference on the Website. The Customer may withdraw such consent by writing an email to upstream to firstname.lastname@example.org.
13.1. These Terms of Service shall be governed by the laws of the Federal Republic of Germany excluding the Convention on Contracts for the International Sale of Goods (CISG) and the conflict of laws provisions. Both Parties submit to the exclusive jurisdiction of the courts of Berlin.
13.2. Should any provision of this Terms of Service be or become invalid, ineffective or unenforceable as a whole or in part, the validity, effectiveness and enforceability of the remaining provisions shall not be affected thereby. Any such invalid, ineffective or unenforceable provisions shall be deemed replaced by such valid, effective and enforceable provision as come closest to the economic intent and purpose as of such invalid, ineffective or unenforceable provisions as regard subject-matter, amount, time, place and extent. The aforesaid shall apply mutatis mutandis to any gap in these Terms of Service if any court has confirmed such proceeding.
13.3. upstream reserves the right to change these Terms of Service at any time without indicating the reasons. upstream will notify Customer of the changed Terms of Service on the Website or via email no later than two (2) weeks before the refined terms will take effect. In case Customer objects the new Terms of Service he/she may terminate the Contract with a period of two (2) weeks upon receipt of the information about the changes by upstream via the “termination” button within the Account.