Terms and Conditions
1.CONFIDENTIALITY; RESTRICTIVE COVENANTS.
1.1. “Confidential Information” includes written machine-reproducible and visual materials; all verbal disclosures; the terms of this Agreement; any software, whether in object, source or executable code; documentation and nonpublic financial information; information relating to the Company's or any other member's methods of operations; names, addresses, telephone numbers and other identifying information relating to clients; compilations and lists of clients; personnel data relating to the Company and other members; information contained in placement lists, job orders, applications, files, inter-office referral documents and other documents; nonpublic plans for new products and services, improvements and marketing strategies; and business contacts, pricing, business plans, techniques, methods and processes.
1.2. “Trade Secret” shall have the meaning as defined under California Civil Code Section 3426.1. The Parties acknowledge and agree that Company’s client list in the form of a compiled database, otherwise publicly unavailable, constitute a Trade Secret.
1.3. Confidentiality. The Member agrees to receive and maintain the Confidential Information and Trade Secrets of the Company and other members as a confidential disclosure and shall not disclose such Confidential Information and Trade Secrets or any part thereof to any other person or entity, or use or permit any use of such Confidential Information and Trade Secrets of the Company or other members or any part thereof or attempt to sell, assign, convey, lease, sub-license, commercially exploit, and/or otherwise market or use, in any way or manner, except as herein expressly permitted, except as follows: (i) with the Company’s prior written consent in each instance of disclosure or (ii) if the Member is required by law to disclose Confidential Information or Trade Secrets, but only after prompt notice to the Company, such that it has a reasonable opportunity to oppose or prevent a disclosure, and only to the extent so required. The foregoing nondisclosure obligations shall not apply to Confidential Information or Trade Secrets (a) which is or becomes publicly available other than through the breach of this Agreement, (b) which was known to the recipient prior to the disclosure by the other party, (c) which a party rightfully receives from a third party not bound by any confidentiality agreement with respect thereto, (d) which is independently developed by the recipient, or (e) which is required to be disclosed pursuant to legal or governmental requirements; provided, that disclosure under this clause (e) shall be limited to persons legally entitled to receive the information.
1.4. Non-Disparagement. During the term of this Agreement and thereafter, the Members agrees to take no action which is intended, or would reasonably be expected, to harm the Company, any other member, their respective reputation, or which would reasonably be expected to lead to unwanted or unfavorable publicity for the Company or any other member.
2.INDEMNIFICATION; LIMITATION OF LIABILITY.
2.1. Indemnification. The Member shall protect, defend, indemnify and hold the Company harmless from any claims, demands, suits, damages, losses, expenses, liabilities or causes of action arising or resulting directly or indirectly from or in connection with: (i) the Member's breach of this Agreement; (ii) the Member's and/or the Member's agent’s acts or omissions in operating its business; and (iii) the Member's and/or the Member's agent’s negligent acts or omissions. The Member also agrees to indemnify, protect and hold the Company harmless from any and all tax liabilities and responsibilities for payment of all federal, state and local taxes, including, but not limited to all payroll taxes, self-employment taxes, workers’ compensation premiums, and any contributions imposed or required under federal, state and local laws, with respect to the Member. Member's obligations hereunder shall include the Company’s cost of defense (i.e., legal fees and costs), as well as the payment of any final judgment rendered against the Company.
2.2. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL THE COMPANY, ITS SUBSIDIARIES, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, OR OTHER REPRESENTATIVES OF EACH OF THEM BE LIABLE TO THE MEMBER FOR ANY INDIRECT LOSS OR DAMAGES OF ANY KIND. THIS INCLUDES, WITHOUT LIMITATION, FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, ECONOMIC, PUNITIVE, OR CONSEQUENTIAL DAMAGES, LOSS OF DATA OR SETTINGS, OR EXPENSE OF ANY KIND CAUSED BY OR TO THE MEMBER OR THE MEMBER'S PROPERTY, EXCEPT FOR ANY LOSS OR DAMAGE CAUSED BY THE WILLFUL MISCONDUCT OR NEGLIGENT ACTS OF COMPANY, EVEN IF FORESEEABLE OR EVEN IF ENTITIES AND INDIVIDUALS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, OR STRICT LIABILITY. NOTHING IN THESE TERMS OF SERVICE LIMITS OR EXCLUDES COMPANY’S LIABILITY TO THE EXTENT IT CANNOT BE LIMITED OR EXCLUDED BY LAW.
2.3. DISCLAIMER OF WARRANTIES. THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. USE OF THE MEMBERSHIP GRANTED HEREUNDER AND ANY SERVICE OFFERED BY THE COMPANY IS AT THE MEMBER'S SOLE RISK. THE COMPANY MAKES NO WARRANTIES, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE.
3.1. Severability. The invalidity or unenforceability of any provisions of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.
3.2. Survival. The covenants on the part of the Member and the Company contained in Sections 2 and 3 of this Agreement shall survive termination of this Agreement, and the existence of any claim or cause of action of the Member against the Company, whether predicated on this Agreement or otherwise.
3.3. Assignment Prohibited. No Party may assign or transfer its rights or obligations under or interest in this Agreement without the prior written consent of the other Parties hereto, except that the Company may assign this Agreement to any affiliated party or any party which purchases substantially all of the assets of the Company.
3.4. Entire Agreement. This Agreement constitutes the entire understanding and agreement of the parties with respect to its subject matter, and any and all prior agreements, understandings or representations with respect to the subject matter hereof are terminated and canceled in their entirety and are of no further force or effect, but specifically excluding the Agreement and the agreements, documents, and instruments provided for herein.
3.5. Governing Law. This Agreement is to be construed in accordance with and governed by the internal laws of the State of California without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of California to the rights and duties of the Parties.
3.6. Venue. Any action or proceeding seeking to enforce any provision of, or based on any right arising out of, this Agreement shall be brought against any of the parties only in the courts of the State of California, County of San Diego, and each of the parties consents to the exclusive jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding and irrevocably waives any objection to venue laid therein.
3.7. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed original, but all of which together shall constitute one and the same instrument.
3.8. Acknowledgment. The Parties acknowledge that they have fully read and completely understand the terms, nature, and effect of this Agreement, and have had the opportunity to consult with legal counsel before executing this Agreement. The Parties further acknowledge that they are executing this Agreement freely, knowingly, and voluntarily and that each Party’s execution of this Agreement is not the result of any fraud, duress, mistake, or undue influence whatsoever. In executing this Agreement, neither party has relied on any inducements, promises, or representations by the Company other than the terms and conditions herein.
Cobot is the web platform used by Community 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.