These terms and conditions (the "Membership Terms and Conditions") of Studios at Betaworks, Inc. (the "Company", "we" or "us") govern your membership ("Membership") to the facilities operated by the Company (the "Studios"). These Membership Terms and Conditions are also referenced in the Company's Member Agreement that you will electronically sign via the Company's mobile application ("S App") or website and the Studios Rules and Studios Desk Rules (all of the documents together including these Membership Terms and Conditions forming the "Agreement"). Unless otherwise specified, all capitalized terms used here have the meanings ascribed to such terms in the applicable agreement or policy. References to "you," "your" and similar words in these Membership Terms and Conditions refer to the individual or entity registering Membership and agreeing to be bound by these Membership Terms and Conditions. If you are entering into these Membership Terms and Conditions on behalf of an entity, you represent and warrant that you have all necessary right, authority and consent to bind such entity to these Membership Terms and Conditions. The Company may make changes to the Agreement from time to time in its sole discretion and will make every effort to send notice to you via email to the email address provided by you to the Company or by other means. Any such changes will become effective when such changes are sent to you or on such later date as may be specified by the Company.
1. Membership Fees, Charges and Termination.
a. Term and Fees. Except for Memberships described in Section 1(b) below, you are required to make a minimum twelve (12) month commitment upon joining the Studios, and accordingly, if you pay your Membership Fees in installments, you agree to pay your Membership Fees for twelve months following your Start Date. The Membership Term shall automatically renew on an annual basis after the initial twelve-month term, unless you provide at least thirty (30) days' written notice of termination to the Company or if the Company otherwise terminates your Membership, as further provided in these Membership Terms and Conditions. The Company may change the Membership Fees by providing you with at least thirty (30) days' notice prior to the end of your Membership Term. You also agree to pay any sales, use, value-added or other taxes or governmental charges related to the Membership or any other products or services provided by the Company, in addition to your Membership Fees or other charges.
b. Term and Fee for Desk Memberships. If you sign up for a membership for a reserved desk ("Desk Membership"), you are required to make a minimum six (6) month commitment upon joining the Studios, and accordingly, if you pay your Membership Fees in installments, you agree to pay your Membership Fees for six months following your Start Date. The Membership Term shall automatically renew on a month-to-month basis after the initial six-month term, unless you provide at least thirty (30) days' written notice of termination to the Company or if the Company otherwise terminates your Membership, as further provided in these Membership Terms and Conditions. The Company may change the Membership Fees by providing you with at least thirty (30) days' notice prior to the end of your Membership Term. You also agree to pay any sales, use, value-added or other taxes or governmental charges related to the Membership or any other products or services provided by the Company, in addition to your Membership Fees or other charges.
c. Term and Fee for Circles Memberships. If you sign up for a membership for the paid Circles program ("Circles Membership"), you are required to make a minimum six (6) month commitment upon joining the Studios. The Membership Term shall automatically renew for an additional six months after the initial six-month term, unless you provide at least thirty (30) days' written notice of termination to the Company or if the Company otherwise terminates your Membership, as further provided in these Membership Terms and Conditions. The Company may change the Membership Fees by providing you with at least thirty (30) days' notice prior to the end of your Membership Term. You also agree to pay any sales, use, value-added or other taxes or governmental charges related to the Membership or any other products or services provided by the Company, in addition to your Membership Fees or other charges.
d. Payments. By signing up for Membership or any other services and providing your payment information, you agree to pay us the recurring or nonrecurring fees associated with the Membership and the particular services you are purchasing, as displayed to you at the time you create your account and/or sign up for the relevant services, or as updated by us from time to time upon notice to you. You acknowledge and agree that the payment method provided by you will be automatically charged the fees and any other amounts you may incur or be liable for (including for damages caused to any of our premises or property) in connection with your Membership. Only a single payment method may be used at any given time to make payments in a single transaction. You must keep your payment information up-to-date and accurate. Recurring fees, which may include your Membership Fees and any other recurring fees you have agreed to in connection with the services will be charged on the first (1st) of each month unless we notify you otherwise.
e. Termination of Membership by you. You may cancel your Membership within seven (7) days of your Start Date with no further obligation of payment by you. In that event, the Company will refund any Membership Fees and/or Deposit that you have paid thus far. Otherwise, you may only cancel your Membership by providing at least thirty (30) days' written notice to the Company prior to the expiration of your Membership Term. Unless otherwise provided herein, if you cancel your Membership prior to the end of your Membership Term, and you are paying your Membership Fees on an installment basis, the Company will charge your credit card on file a Cancellation Fee of $675 (equivalent to three (3) months of Membership Fees) in one lump sum upon your cancellation.
f. Failure to Pay Membership Fees. If you fail to pay any Membership Fees or other charges on time, your privileges to the Studios will be suspended until your account is brought current. If you repeatedly fail to pay or make payment late of any Membership Fees or other charges, the Company may terminate your Membership immediately upon notice to you (including by email). You will be responsible for any collection or legal costs incurred by the Company in connection with collection of your unpaid Membership Fees or other charges. If any check, credit card, or any other ACH transaction to the Company is not honored, the Company may assess a penalty for each such check or credit card charge rejected, along with any unpaid balances.
g. Other Expenses. During your use of the Studios' services, you may be billed for services used by you and your guests, such as food, beverage, catering, equipment rentals and conference room services. You authorize the Company to charge your credit card on file for all such bills associated with your use of the Studios' services. Your guests may purchase their own food, beverage and services with their own method of payment; however, if any of your guests fail to pay for any products or services, the Company will charge your credit card on file for such unpaid amounts.
h. Refunds. Unless expressly provided herein, the Company will have no obligation to refund any Membership Fees or other expenses, even if you do not use your Membership or if you or the Company terminates your Membership before the end of the Membership Term.
i. Termination of Membership by the Company. If you fail, or if we suspect that you have failed, to comply with any of the provisions of the Agreement, we may, at our sole discretion, restrict your access to the Studios and/or terminate your Membership with immediate effect and possibly without prior notice to you. You will not receive a refund of any Membership Fees, and if you are paying your Membership Fees on an installment basis, the Company will charge your credit card on file for the Membership Fees owed for the remainder of your Membership Term in one lump sum upon your termination. In addition, we may decline to renew your Membership at the end of the Membership Term for any reason or for no reason. We may also at any time terminate your Membership if we discontinue the Studios or at any other time when we in our reasonable discretion see ﬁt to do so; provided that in such cases, you will not be charged Membership Fees for the remainder of the Membership Term and will be refunded any Membership Fees that you prepaid for the remainder of the Membership Term. Please note that if your Membership was created by a company, (a) an authorized representative of such company may at any time terminate your individual Membership by contacting us and (b) we may terminate your Membership, even if the company's membership remains active, and even if you continue to be employed or engaged by such company. Cancellation will be effective immediately upon our receipt of notice of cancellation. Sections 1 (to the extent any payment amounts are outstanding), 3, 4, 5, 6 and 7 shall survive any termination of Membership or expiration of these Membership Terms and Conditions.
j. Linking to a company. During the registration process, you may identify a company with whom your profile is associated. Alternately, your individual Membership may have been created by an authorized representative of your employer or other entity for which you provide services, and your Membership will be associated with such company. You agree that you will not falsely represent your association with any company, impersonate any third party, or otherwise submit or present any false or misleading information to us or the Studios community. In the event your relationship with the company in your profile changes or ends, you agree to promptly update your profile to reflect this. If your Membership is provided by a company, you may lose access to the Studios upon termination or change in status of your relationship with such company. If you are an authorized representative of a company, you hereby warrant and represent to us that (a) you have the proper authority to create and terminate individual memberships associated with such company and (b) you have obtained all necessary consent from any applicable individuals for the creation of their memberships and the processing of individual information. You agree to indemnify us for any loss we may suffer as a result of any breach of these warranties and representations.
2. Studios Access and Maintenance
a. Access to the Studios. Your Membership is specific to you. You cannot share your Membership with any other individual. All members and guests must be above the legal drinking age, unless we specify otherwise. You agree to provide us with accurate and complete information about yourself when you register with us and as you use the Studios. You may be required to present a valid, government-issued photo identification in order to gain access to the Studios, and you agree to keep a current photograph on file with the Company. For security purposes, we may regularly record via video certain areas of the Studios. If we deem it reasonably necessary, we may disclose information about you to satisfy applicable law, rule, regulation, legal process or government request, or to protect us, our members, or other individuals, or any of our or their property. It is your obligation to notify any of your guests about this policy. The Company and its designees shall, at all times, have access to all areas of the Studios, including those used by you, with or without notice to you, including without limitation, for purposes of maintenance, safety, security or emergency and may remove or replace parts of the Studios, as determined in the Company's sole discretion. The Company may restrict access to certain parts of the Studios for programming or private event purposes in its sole discretion.
b. Maintenance of the Studios. The Company will maintain the Studios in good functional condition, provided, however, that the Company shall not be responsible for damage exceeding normal wear and tear caused by your acts and omissions or the acts and omissions of your guests or invitees.
c. Hours of Operation. The Studios' hours of operation may vary. The Company has the right to change its hours of operations at any time and will provide notice of such change to you by email to the address provided by you to the Company or in the Studios Rules or Studios Desk Rules.
d. Conference Rooms and Focus Rooms. Except as otherwise provided, you may reserve focus rooms or conference rooms, subject to any applicable fees, which are subject to change from time to time.
e. Desk Membership. Each member with a Desk Membership ("Desk Member") will have access to their reserved desk 24 hours a day/7 days a week and will be issued a keycard to access their reserved desk during non-business hours. Additional or replacement keycards are available for $25 each. You agree not to bring or install additional furniture, appliances, furnishings or decorations without the prior written consent of the Company. Such consent may be withheld at Company's sole and absolute discretion. Desk Members will have limited access to areas of the Studios, conference and focus rooms, events and other membership benefits as further described in the Studios Desk Rules.
f. Member Storage. You agree not to store any of your property or materials in common areas or hallways, other than in the assigned or rented storage cabinets or lockers that may be assigned to you. The Company provides lockers solely for the benefit and convenience of its members. The Company may allow you to rent lockers on a first come first serve basis. If you do not rent a locker, you may not leave any articles in lockers overnight. Company personnel will remove any articles left overnight in unauthorized lockers. Locker rental fees are nonrefundable.
g. Mail. Subject to availability, you may elect to receive mail and packages at the Studios. If you have done so, we will accept mail and deliveries on your behalf during regular business hours on regular business days. We have no obligation to store such mail or packages for more than fourteen (14) days of our receipt or if we receive mail or packages after your terminate your Membership. This feature is meant to allow you to accept business correspondence from time to time and is not meant for the receipt of merchandise or personal goods. As such, we have no obligation to accept bulk or oversized mail or packages.
h. Guests. Your guests are permitted into the Studios only as provided in the Studios Rules and Studios Desk Rules. You are responsible for the actions of all persons that you, your agents, assigns or invitees allow or invite to enter the Studios. You, your agents, assigns, and invitees acknowledge that at no time shall you or they allow a party unknown to them to enter the Studios and that such action may result in termination of your Membership.
i. Valuables and Personal Property. You are urged not to bring valuables into the Studios. The Company shall not be liable for the loss of or theft of, or damage to, your personal property or the personal property of your guests, including items left in your locker, with the coat check or elsewhere in the Studios.
j. Damage. You may be held liable (and do hereby authorize us to charge you) for the repair cost for all damage to the Studios and items therein caused by you or your guests or invitees.
k. Services. You acknowledge and agree that in order to receive certain services (including, but not limited to, access to the wireless network, S App, S-Bar concierge, shared printing, etc.), you will be subject to additional guidelines, terms, conditions and/or rules, which will be posted with those services or otherwise communicated to you ("Additional Terms"). We will consider your use of those services your acceptance of the applicable Additional Terms, and those Additional Terms will be incorporated in these Membership Terms and Conditions by this reference. In addition, you may need to install software to be provided by the Company and/or its designee. As a condition of use of such services, you, on behalf of yourself and on behalf of your employees, agents, and invitees, waive any claim or action against the Company, its employees, members, affiliates, and any person acting on behalf of the Company or its affiliates arising from or in conjunction with the installation and/ or use of any software installed or made available to you by the Company. You may not resell, lease, license or distribute any of the services, drivers or software provided to you to any third party without the prior written consent of the Company. The Company may also provide you with technical support at your request. You agree that the Company (i) is not responsible for any damage to any of your electronic equipment or systems related to such technical support or software installation, (ii) does not assume any liability or warranty in the event that any manufacturer warranties are voided and (iii) does not offer any verbal or written warranty, either expressed or implied, regarding the success of any technical support. Furthermore, you acknowledge that you have no expectation of privacy with respect to the Company's internet connection, networks, telecommunications systems or information processing systems, and your activity and any files or messages on or using any of those devices or systems may be monitored at any time without notice, including for security reasons and to ensure compliance with our policies, regardless of whether such activity occurs on equipment owned by you or us. The Company reserves the right to monitor your usage of the services. If the Company determines, in its sole discretion, that you are using more than a reasonable quantity of any service, then the Company will notify you of such use. If you do not adequately reduce or remediate your excess usage of a particular service, the cost of this excess usage will be billed to your account, in addition to any other remedies the Company may have.
l. Third Party Services. The Company is not involved in or liable for, the provision of products or services by third parties ("Third Party Services") that you may elect to purchase in connection with your Membership. Third Party Services are provided solely by the applicable third party ("Third Party Service Providers") and pursuant to separate arrangements between you and the applicable Third Party Service Providers. These Third Party Service Providers' terms and conditions will control with respect to the relevant Third Party Services.
3. Conduct, Social Media and Communications
a. Conduct. Neither you nor your guests may use the Studios or any services offered by the Company to conduct or pursue any activities prohibited by law or for which you or your guests are not authorized. You may not use the Studios in a retail, medical, or other nature involving visits by the public. You will be strictly liable for the conduct of your guests. No hate speech, discrimination, harassment, sexual or otherwise, will be permitted in the Studios, the Company's networks, sites, vis-à-vis its social channels or on the S App. Any such behavior should be immediately reported to the Company. If the Company, in its sole discretion, finds that a complaint is justified, the offending party's Membership with the Company may be immediately terminated by the Company, in its sole and absolute discretion, without any refund of any Membership Fees or other charges. You further agree not to conduct any activity that may be hazardous to other persons at the Studios. You further agree to refrain from any activities that may be considered disruptive to other members, including but not limited to, acts of disorderly nature or excessive noise. No weapons of any kind are permitted in the Studios. Possession of weapons in the Studios is grounds for immediate termination of Membership. Violation of applicable rules of conduct in this section may result in the Company reporting such conduct to appropriate law-enforcement agencies.
b. Confidential Information. You agree to hold all Confidential Information (defined as information not generally known to the public) of the Company and any other members of the Company in strict confidence and to take all reasonable precautions to protect the Confidential Information. You acknowledge that any disclosure or unauthorized use of the Confidential Information will constitute a material breach of these Membership Terms and Conditions and cause substantial harm to the injured party for which damages would not be a fully adequate remedy. In the event of any such breach, the Company shall have, in addition to other available remedies, the right to injunctive relief (without being required to post bond or security). The Company reserves the right at all times to disclose any information about you as the Company deems necessary to satisfy any applicable law, regulation, legal process or governmental request.
c. Disparaging Statements. You shall, during and after the Membership Term, refrain from making any statements or comments of a defamatory or disparaging nature to any third party (including via your social media channels) regarding the Company, Studios or any of the Company's officers, directors, employees, personnel, agents, policies, services or products or other members, other than to comply with law. The Company reserves the right to remove all forms of verbal and physical harassment on the Company's sites, S App and social media channels.
d. Social Media. The Company will not tolerate certain social media conduct by members, whether indirectly or directly targeting or relating to the Company, the Studios, the Company's members, officers, directors, employees, personnel, or agents, including for example: (a) defamatory, malicious, obscene, intimidating, discriminatory, harassing or threatening comments or hate propaganda; (b) calls to violence of any kind or other threats of any kind; or (c) conduct that violates any law or regulation. In the event that the Company feels that you have breached this paragraph, the Company reserves all its rights to take further action, including but not limited to: (i) adding, removing, or modifying any content, including comments, (ii) blocking you or any other disruptive users; and (iii) discontinuing any of its social media channels at any time. In the event that you engage in any of this prohibited conduct on your social media channels regarding the Company, the Studios or any of the Company's officers, directors, employees, personnel, agents, policies, services or products or other members, the Company may immediately terminate your Membership and reserves its full legal rights to pursue legal damages against you.
e. Publicity. You may not use the Company's name or pictures, illustrations or graphics of the Company or Studios (including any images from the Company's website) in any advertising or publicity for commercial purposes without the prior written consent of the Company. You may refer to yourself as a member of the Studios on your social media channels, blog or for other non-commercial purposes.
f. Communications. You acknowledge that you will receive community emails as part of your obligations and duties as a member. The Company may provide notice of any changes to services, fees or other updates by email to the address provided by you, and you agree that such notice is proper. You agree to notify the Company of any changes to your contact information (phone number and email). If you contact any other member for commercial or other unauthorized purposes who has not consented to such contact, including any spamming, your Membership may immediately be terminated by the Company. You also agree that the Company may from time to time introduce you to other members and give your contact details, name and other information to other members in order to provide networking or other opportunities to you. In the event that you do not want the Company to share any of your information or make introductions to you, you must notify the Company through the S App or in writing.
g. Intellectual Property of others. You must not directly or indirectly take, copy or use any information or intellectual property belonging to other members or member companies or any of their guests, including without limitation personal names, likenesses, voices, business names, trademarks, service marks, logos, trade dress, other identifiers or other intellectual property, or modified or altered versions of the same.
h. Sponsors and Advertisements. In using the Studios or services of the Company, you may encounter advertisements from Third Party Service Providers and our other business partners, which may be targeted to you based on certain information you provide to us or that we collect based on your use of the Studios and other services. The types and extent of advertising are subject to change. In consideration for us granting you access to and use of the Studios and other services, you agree that we, such Third Party Service Providers and our other business partners may provide you with such advertising from time to time.
i. Endorsements and Testimonials. From time to time, we may also publish testimonials by users and members related to their experiences with the Studios and other services. These testimonials are the users' subjective opinions, and they represent individual results. We neither verify them nor claim that they are typical results that others will generally achieve. Names, locations, dates and other information may have been changed to protect the privacy of the individuals involved. All other testimonials and endorsements of any type, format or nature posted by users are not verified by us, and we make no warranty or representation as to their accuracy. You should be cautious when relying on any testimonials or endorsements, and you should assume the results described therein are not typical.
4. Indemnity. You agree to indemnify, defend and hold the Company, its landlords and its affiliates, parents, and successors and each of our and their respective officers, directors, employees, consultants, contractors, assignees and agents (collectively, the "Indemnitees") harmless from any and all actions, suits, proceedings, claims and demands brought or made by any third party (including, for the avoidance of doubt, any of your respective officers, directors, employees, contractors, visitors, invitees and/or agents; any employees, contractors or agents of the Company; and any of the Company's other members and their respective personnel) ("Third Party Claims") and to pay any settlements, awards, costs and expenses (including reasonable attorneys' fees and disbursements) in connection with such Third Party Claims (collectively, "Losses"), to the extent such Third Party Claim arises out of or relates to: (i) any breach of the Agreement (including, for the avoidance of doubt, the Member Agreement, the Studios Rules, Studios Desk Rules and these Membership Terms and Conditions) by you, (ii) any violation of the Agreement by any of your invitees or guests or (iii) any other conduct, acts or omissions by you or any of your invitees or guests in connection with your Membership or any of their respective use of the Studios, including, but not limited to, any violation of applicable laws or regulations, negligence or misconduct by you or by any of your invitees or guests. From time to time, we may investigate any actual, alleged or potential violations of the Agreement. You agree to cooperate fully in any of these inquiries. You waive any and all rights against the Indemnitees and agree to hold them harmless in connection with any claims relating to any action taken by us as part of our investigation. For purposes of this section "you" includes you and any company for which you work that has a presence at the Studios.
a. Waiver and Release of Claims. To the extent permitted by law, you, on your own behalf and on behalf of your employees, agents, guests and invitees, waive any and all claims and rights against the Indemnitees resulting from injury or damage to, or destruction, theft, or loss of, any property, person or pet ("Claims") and release the Indemnitees from any such Claims. You shall and hereby do waive California Civil Code Section 1542 or any other similar law of any jurisdiction, which says in substance: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor."
b. Actions of Others. We are not liable for actions of other individuals. We do not control and are not responsible for the actions of other individuals or pets using the Studios or any services. You should be aware that other users or members may not be who they claim to be. We do not perform background checks on our users or members nor do we guarantee that our users' or members' profiles are accurate. We do not endorse, support or verify the facts, opinions or recommendations of our users or members. If a dispute arises between members or their invitees, guests or pets, we shall have no responsibility or obligation to participate, mediate or indemnify any party.
c. Third Party Products and Services. We do not have liability for third party products or services. The Studios may provide you with access to third party products or services and access to advertisements from our other third party business partners. We are not responsible for the content of these advertisements or any links, products, services or other materials relating to any third party products, services, advertisements or other materials. In no event will we be liable, directly or indirectly, to anyone for any damage or loss relating to any use of or reliance on any advertisement or any products, services or other materials relating to any advertisement. You agree that our making available access to or discounts for these third party services does not constitute provision of such third party services by us, and you will look solely to the applicable third party for provision of the applicable third party services and for compensation for any claims, damages, liabilities or losses you may incur in connection with such third party services.
d. Liability Exclusion. THE COMPANY WILL NOT BE LIABLE TO YOU (NOR TO ANY OF YOUR INVITEES OR GUESTS OR ANY OTHER PERSON CLAIMING RIGHTS DERIVED FROM YOUR RIGHTS) FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES OF ANY KIND, OR FOR ANY LOST REVENUES OR PROFITS, LOSS OF USE, LOSS OF COST OR OTHER SAVINGS OR LOSS OF GOODWILL OR REPUTATION, WITH RESPECT TO ANY CLAIMS BASED ON CONTRACT, TORT OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE AND STRICT LIABILITY) ARISING FROM, RELATING TO OR IN CONNECTION WITH THE MEMBERSHIP, THE STUDIOS, THE AGREEMENT (INCLUDING, FOR THE AVOIDANCE OF DOUBT, THE MEMBER AGREEMENT, STUDIOS RULES, STUDIOS DESK RULES OR THE MEMBERSHIP TERMS AND CONDITIONS), REGARDLESS OF WHETHER THE COMPANY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF.
e. Limitation of Liability. THE COMPANY'S MAXIMUM LIABILITY ARISING FROM, RELATING TO, OR IN CONNECTION WITH THE MEMBERSHIP, THE STUDIOS, THE AGREEMENT (INCLUDING, FOR THE AVOIDANCE OF DOUBT, THE MEMBER AGREEMENT, STUDIOS RULES, STUDIOS DESK RULES, OR THE MEMBERSHIP TERMS AND CONDITIONS), REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, INDEMNITY, BREACH OF WARRANTY OR OTHERWISE), WILL NOT EXCEED, IN THE AGGREGATE, $1000.
f. Exceptions. To the extent any of the exclusions or limitations of liability set forth in this section are determined to be not enforceable under applicable law, such exclusions and limitations of liability shall be enforced to the fullest extent permitted under applicable law.
6. Representations and Warranties; Disclaimer.
a. Mutual Representations and Warranties. The Company and you each represent and warrant that you and they are each duly authorized to perform your and their obligations hereunder.
b. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED ABOVE, EACH PARTY HEREBY EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, ARISING FROM, RELATING TO OR IN CONNECTION WITH THE MEMBERSHIP, THE STUDIOS, THE AGREEMENT (INCLUDING, FOR THE AVOIDANCE OF DOUBT, THE MEMBER AGREEMENT, STUDIOS RULES, STUDIOS DESK RULES OR MEMBERSHIP TERMS AND CONDITIONS), INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY REPRESENTATIONS AND WARRANTIES ARISING FROM A COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE.
a. Except for the payment of any amounts due hereunder, nonperformance of either party shall be excused to the extent that performance is prevented or delayed by strike, fire, flood, epidemic, governmental acts, orders or restrictions, failure of suppliers, Internet or power outages, or any other reason where failure to perform is beyond the control and not caused by the negligence of the non-performing party (including for the avoidance of doubt, your inability to access the Studios' premises by reason of closure).
b. In the unlikely event that the Company is no longer able to provide access to the areas and/or the services (or reasonable substitutes thereto) at the Studios, then your right to use the Studios and any services and your Membership will end. In that event, the Company will have no obligation to refund any Membership Fees, and the Company will not otherwise be liable to you for any reason.
c. Neither party will assign or otherwise transfer any of its rights or obligations under the Agreement without the prior, written consent of the other party. Notwithstanding the foregoing, the Company may, without the consent of the other party, assign or otherwise transfer the Agreement: (i) to any of its affiliates or (ii) in connection with a merger, consolidation, sale of equity interests, sale of all or substantially all of its assets or other change of control transaction. Any assignment or other transfer not in accordance with this section will be null and void. The Agreement is binding upon and will inure to the benefit of each party and their respective permitted successors or assigns.
d. The relationship of the parties under the Agreement: (i) is one of independent contractors, and neither party has the authority to bind the other party in any way and (ii) is non-exclusive and nothing herein shall be deemed to restrict or limit a party's ability to engage in similar relationships, agreements or arrangements with any other party. The Agreement, which is comprised of the Member Agreement, Studios Rules, Studios Desk Rules, and these Membership Terms and Conditions sets forth the entire agreement of the parties as to its subject matter and supersedes all prior agreements, negotiations, representations, and promises between them with respect to its subject matter. A waiver of rights under the Agreement will not be effective unless it is in writing and signed by an authorized representative of the party that is waiving the rights.
e. From time to time, the Company may make available to you and your guests the service of independent contractors. The Company does not guarantee or warrant the quality of these services and does not guarantee that these services will remain available to you or your guests for any period of time, and hereby disclaims all liability arising out of such services.
f. Notwithstanding anything in the Agreement to the contrary, the Agreement in no way shall be construed as to grant you any title, lease, easement, lien, possession or related rights in our business, Studios (including reserved desks) or anything contained in the Studios (including reserved desks). The Agreement creates no tenancy interest (including any security of tenure), leasehold estate, or other real property interest. Neither party will in any way misrepresent our relationship.
g. You hereby represent and warrant that you are not, nor will you be at any time while you are a member, 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.
h. The Agreement, and any and all disputes directly or indirectly arising out of or relating to the Agreement, shall be governed by and construed in accordance with the laws of the State of New York, without reference to the choice of law rules thereof.
i. In the unlikely event that you and the Company have a dispute related to this Agreement, you and the Company agree it will be resolved by binding arbitration under the rules and supervision of the American Arbitration Association, in New York City, except where the law specifically forbids the use of arbitration as a final and binding remedy. THIS AGREEMENT TO ARBITRATE WAIVES THE PARTIES' RIGHTS TO LITIGATE THEIR DISPUTES IN COURT OR TO RECEIVE A JURY TRIAL.
j. You agree not to contact any landlord of the Company directly. You agree that any such communications will be made through the Company.
k. In the event that any provision of the Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement shall otherwise remain in full force and effect and enforceable.