REFRACTION Inc. MEMBERSHIP AGREEMENT, PART 2
GENERAL TERMS & CONDITIONS
1. Agreement Defined; Parties. The Membership Agreement (the “Agreement”) consists of two parts: Part 1 which defines the terms specific to Member and this Part 2 which sets forth the general terms and conditions. The parties to the Agreement are: (a) the Member identified in Part 1, and (b) Refraction Inc. ________________ [insert full name and state of formation, dba, etc.]
2. Creation of Membership. In consideration of Member’s payment of the Membership Fees described in Part 1 of the Agreement and performance of its obligations under the Agreement, Refraction Inc. hereby grants the following to Member: a revocable license to use the Premises and the Services on a periodic basis; the right to be a member of the Refraction Inc. Community; access to Refraction Inc. Community events and resources.
3. Premises Defined. The “Premises” is defined in Part 1 of the Agreement. Refraction Inc. shall provide Member and any Additional Members with key card or other similar access to the Premises. Member agrees and acknowledges that Member shall be responsible for any expense associated with replacement cards.
4. Refraction Inc. Community Defined. Refraction Inc. seeks to provide a shared, comfortable and productive workspace for the technology and mobile start-up, and artistic and non-profit communities. The “Refraction Inc. Community” is envisioned as a hub, providing its members with a range of workspace, training, collaboration, event, and networking opportunities. Each member is active part of the Community.
5. Services Defined. “Services” may include, from time to time, (a) the following located within the Premises: office space, workstations, Internet access, internal computer network for the use of members of the Refraction Inc. Community, office equipment, kitchen facilities, conference space, and event space; and (b) events, community programs, collaborative partners, and knowledge resources. Refraction Inc. may supplement or modify the Services from time to time in its reasonable discretion. Certain Services may carry additional fees, over the Membership Fee. By way of example, certain events may require payment of an entrance or door fee to be determined by Refraction Inc. in its reasonable discretion.
6. Acceptance of Terms. Member agrees to fulfill all of Member’s obligations set forth in the Agreement. Refraction Inc. reserves the right to modify, amend and supplement the Terms and Conditions at any time without notice to or consent from Member, so long as any such modification, amendment or supplement shall not materially adversely affect Member’s rights and obligations under the Agreement. Refraction Inc. shall provide Member with the current Terms and Conditions upon receipt of Member’s written request.
7. Term; Effective Date; Renewals. The “Term” of the Agreement shall start commence on the date of execution by both Member and Refraction Inc. (the “Effective Date”) and shall expire at the end of the third full calendar month thereafter. Unless either party shall deliver written termination notice to the other, the Term shall renew automatically at the end of the first three-month period on a month-to-month basis, until terminated as set forth herein. In order for a termination notice to be effective, the terminating party shall deliver to the other party at least thirty (30) days before the desired date of termination. One calendar month notice shall not be required. Termination shall be in effect as of the last day of the calendar month in which the termination notice is delivered. Membership Fees shall be payable through the termination date.
8. Confidentiality. Member acknowledges and agrees that Member may exposed to Confidential Information. “Confidential Information” shall mean all information which is disclosed by Refraction Inc., any member of the Refraction Inc. Community, any participant of the Services or any employee, affiliate, or agent of the foregoing which is non-public, confidential or proprietary in nature. “Confidential Information” includes, but is not limited to, the following with regard to Refraction Inc. or any member of the Community: information regarding sales, operations, know-how, trade secrets, business affairs, knowledge gained through examination or observation of or access to the Services, facilities, computer systems, books and records, analyses, compilations, studies; and any information Member knows or has reason to know is or should be treated as confidential. Member shall maintain all Confidential Information in strict confidence and shall not disclose Confidential Information except as may be required by law or court order. to any third parties; not to sue the Confidential Information in any way directly or indirectly determined to Refraction Inc. or any participant or user of the Services. All Confidential Information remains the sole and exclusive property of the disclosing party. None of the Agreement, Member’s participation in the Refraction Inc. Community, or Member’s use of the Services shall be construed as granting any rights to Member, by license or otherwise, in or to any Confidential Information or any patent, copyright or other intellectual property proprietary rights of Refraction Inc. or any other member. Refraction Inc. shall not be liable for the disclosure or acquisition of any of Member’s Confidential Information.
9. License, No Tenancy. Member agrees and acknowledges that Member is not a tenant or subtenant of the Premises but rather a licensee subject to the terms and conditions of the Agreement. The Agreement does not grant a leasehold interest to Member.
10. Rights of Member Subject to Lease. Member agrees and acknowledges that Refraction Inc. leases the Premises pursuant to a commercial lease agreement (as amended from time to time, the “Lease”). The terms and conditions of the Lease hereby are incorporated into the Agreement and made a part thereof. Member agrees to comply with all terms and conditions of the Lease. Refraction Inc. shall provide Member with a copy of the Lease upon Member’s request. The Agreement shall terminate upon the expiration or termination of the Lease without further action on the part of Refraction or Member.
11. Use of Premises and Services. Member shall use the Premises and Services in a professional manner in accordance with the Agreement. Member shall be responsible for any damage to the Premises arising from the negligence or intentional misconduct of Member, its employees, contractors, agents, invitees and guests. Member shall reimburse Refraction Inc. immediately upon demand for any expense incurred by Refraction Inc. in connection with remediating any damage.
12. Utilities. Refraction Inc. shall be responsible for the expenses associated with normal and customary utility usage within the Premises with regard to the following utilities and services: electricity, water, incidental garbage disposal and recycling, and a shared Internet connection for the Refraction Inc. Community. Member shall be responsible for the expenses associated with any and all other utilities and services which serve Member individually including, but not limited to, Member’s telephone and dedicated Internet connection.
13. Voluntary Participation by Member. Member agrees and acknowledges that Member enters into this Agreement and shall utilize the Services of its own free will and decision. Member agrees and acknowledge that Refraction Inc. shall not have any liability with respect to Member’s access to, participation in, use of the Services, or for any loss of information resulting from such participation or use.
14. No Unlawful or Prohibited Use. Member shall not use the Premises or the Services (a) for any unlawful purpose, (b) for any purpose that is prohibited by the Agreement, (c) in any manner that may damage, disable, overburden, or impair the Services, Refraction Inc.’s network, the utilities provided to the Premises, including, but not limited to, the community Internet connection, and (d) in any manner that may interfere with any other party’s use and enjoyment of any Services. Member shall not obtain or attempt to obtain unauthorized access to any Services, accounts, computer systems or computer networks connected to any Refraction Inc. network or to any of the Services. Member shall not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Services.
15. Rules and Regulations. Member agrees to comply with the following rules and regulations. Member shall not:
a. Permit access to the Premises or use of the Services by any party who is not a member of the Refraction Inc. Community.
b. Use the Services in connection with contests, pyramid schemes, chain letters, junk email, spamming, spimming or any duplicative or unsolicited messages (commercial or otherwise).
c. Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
d. Publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, obscene, indecent or unlawful topic, name, material or information on or through the Refraction Inc. Community network.
e. Upload, or otherwise make available, files that contain images, photographs, software or other material protected by intellectual property laws, including, by way of example, and not as a limitation, copyright, trademark laws (or by rights of privacy or publicity) unless Member owns or controls the rights thereto or has received all necessary consent to do the same.
f. Use any material or information, including images or photographs, which are made available through the Services in any manner that infringes upon any copyright, trademark, patent, trade secret, or other proprietary right of any party.
g. Upload files that contain viruses, Trojan Horses, Worms, time bombs, candlebots, corrupted files, or any other similar software or programs that may damage the operation of another computer or property of Refraction Inc. or any other member of the Refraction Inc. Community.
h. Restrict or inhibit any other member or authorized user from using and enjoying the Services.
i. Violate any code of conduct or other guidelines which may be applicable for any particular Service (including the Building Rules).
j. Harvest or otherwise collect information about other members and users, including email addresses, without the authorization or consent of the disclosing party.
k. Violate any laws rules or regulations.
16. Alterations and Improvements. Member shall not make any decoration, improvement or alteration to the Premises without the prior written consent of Refraction Inc. which Refraction Inc. may grant or withhold in its sole and absolute discretion. The foregoing limitation applies to all manner of alterations and improvements, including, but not limited to, painting, door locks, signage. At the expiration or early termination of the Agreement, at Refraction Inc.’s election, all improvements and alterations made by Member shall become part of the Premises and be deemed to be property of Refraction Inc. If Refraction Inc. elects to remove any alterations and improvements, Member shall reimburse Refraction Inc. all costs incurred. Refraction Inc. may alter or improve the Premises from time to time. In such event, Refraction Inc. shall use commercially reasonable efforts to limit any interference with Member’s use and enjoyment of the Premises and the Services.
17. Personal Property. Member may place personal property within the Premises, in the areas designated by Refraction Inc., for use by Member within the Premises. Member shall remove all personal property from the Premises before the expiration or early termination of the Agreement. Any personal property remaining upon the Premises after the expiration or early termination of the Agreement shall be deemed to be property of Refraction Inc. If Refraction Inc. elects to remove any personal property, Member shall reimburse Refraction Inc. all costs incurred.
18. Damage; Casualty. If all or any part of the Premises is damaged or destroyed, Refraction Inc. may elect to restore the Premises or terminate the Agreement and shall so advise Member by written notice. If the Premises are rendered totally unfit for occupancy and Refraction Inc. elects to restore the Premises, then Membership Fees shall be abated until restoration is substantially complete. If the Premises are rendered partially unfit for occupancy, then Membership Fees will be abated in proportion to the percentage of the Premises utilized by Member that are and remain unfit for occupancy. If Refraction Inc. elects to terminate this Agreement, then Membership Fees shall be pro-rated up to the date of the damage and any pre-paid Membership Fees allocable to the period following the termination date shall be refunded to Member. Notwithstanding the foregoing, in the event that the damage arises out of the negligence or intentional misconduct of Member or any of its employees, agents, or invitees, there shall be no abatement of Membership Fees and Member shall indemnify Refraction Inc. as set forth in paragraph 26 below.
19. Signage and Branding. Member shall not place any signage within the Premises or the building within which the Premises is located. If the Membership Agreement provides for an office or two or more full-time desks and a term of six months or longer, then Member may install a black vinyl horizontal logo on the glass suite entrance door to the Premises. Such signage shall be at Member’s sole cost and expense. The signage and the provider who designs, manufactures and installs the signage shall be subject to Refraction Inc.’s prior written consent, which shall not be unreasonably withheld. Upon Member’s request, Refraction Inc. shall provide Member with acceptable sizes, resolution and file types.
20. Insurance. Refraction Inc. carries Liability and Business Personal Property insurance. As a community member, you are not required but it is strongly suggested that you carry an Insurance policy to cover your own equipment while using our space.
21. Security Deposit. Upon Member’s execution of the Agreement, Member shall pay Refraction Inc. a deposit (the “Security Deposit”) in the amount set forth in Part 1 of the Agreement. The Security Deposit shall be security for the performance by Member of all of Member’s obligations, covenants, conditions and agreements set forth in the Agreement. After the expiration of the Term, provided Member has vacated the Premises and an Event of Default has not occurred and is continuing under the Agreement, Refraction shall return the Security Deposit to Member, less such portion thereof as Refraction shall have appropriated to satisfy any Event of Default under the Agreement. If there is an Event of Default by Member under the Agreement, Refraction Inc. shall have the right, but not the obligation, to use, apply or retain all or any portion of the Security Deposit for (i) the payment of any Membership Fee or any other sum which is past due under this Lease, (ii) the payment of any amount Refraction Inc. may spend or become obligated to spend as a result of the Event of Default, and (iii) for the compensation of Refraction Inc. for any losses incurred by reason of the Event of Default. If any portion of the Security Deposit is so used or applied, within ten (10) days after the date of written notice to Member of such use or application, Member shall restore the Security Deposit.
22. Payment of Membership Fees and Additional Fees.
a. Member shall receive an invoice each month which shall set forth the payment due from Member before the end of such month. The invoice shall include the following: the monthly Membership Fee set forth in Part 1 of the Agreement, any variable charges such as event participation or additional meeting room usage that may have been incurred during the previous calendar month.
b. If any amounts due under this Agreement are not paid by the last day of the calendar month in which the payment is due, then a late payment processing fee (a “Late Fee”) of Twenty-Five Dollars ($25.00) shall be immediately due and payable. For each returned check or other failed payment, Member agrees to pay Refraction Inc. a returned payment processing fee (a “Returned Payment Fee”) in the amount of $25.00 for each instance where the form of payment provided by Member to Refraction Inc. is returned for any reason. The Returned Payment Fee shall be in addition to any Late Fee.
23. Event of Default; Remedies. In the event that Member fails to fulfill any of its obligations under the Agreement (such failure, an “Event of Default”), Refraction Inc. may pursue all rights and remedies available at law or in equity. Without limiting the foregoing, upon an Event of Default, Refraction Inc. may terminate this Agreement, revoke Member’s license to use the Premises and the Services, eject Member from the Premises, and demand immediate payment from Member of all sums due to Refraction Inc.
24. Authority to Publish Member Information. Member hereby authorizes Refraction Inc. to disclose and publish any information (except Confidential Information) regarding Member and Member’s participation in and use of the Services.
25. Slack Account. Member acknowledges that, in connection with the Services, that Refraction Inc. may provide to Member access to a Slack community. Member acknowledges that use of Slack (www.slack.com) requires: (i) Member’s registration with Slack and compliance with Slack’s Terms of Service; and (ii) compliance with Refraction Inc.’s Slack Community Acceptable Use Policy as such Acceptable Use Policy may be updated by Refraction Inc. from time to time and posted to its Slack community. Refraction Inc. reserves the right, in its discretion, to terminate or suspend Member’s access to its Slack community.
26. Disclaimer of Warranties. To the maximum extent permitted by the law, Member accepts the Services “AS-IS WHERE-IS” and with all faults. Refraction Inc. makes no representation or warranty, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose, quiet enjoyment, data accuracy, title, and non-infringement, and disclaims the same, whether express, implied or statutory, with regard to the Premises and the Services. Member assumes all risk as to the quality of the Services and the benefit to Member therefrom.
27. Member’s Indemnity.
a. Indemnity. To the fullest extent permitted by law, Member agrees to indemnify and save harmless the Refraction Inc. Parties from and against all claims of whatever nature by a third party arising from or claimed to have arisen from (i) any intentional misconduct or negligence of the Member Parties (as hereinafter defined); (ii) any accident, injury or damage whatsoever caused to any person, or to the property of any person, occurring in or about the Premises from the Commencement Date, and thereafter throughout and until the end of the Term, and after the end of the Term for so long after the end of the Term as any of Member’s Property remains on the Premises, or anyone acting by, through or under Member may use, be in occupancy of any part of, or have access to the Premises or any portion thereof; (iii) Member’s failure to comply with the terms and conditions of the Lease; or (iv) any breach of this Agreement by Member. Member shall pay such indemnified amounts as they are incurred by the Refraction Inc. Parties.
b. Breach. In the event that Member breaches any of its indemnity obligations hereunder, Member shall pay to the Refraction Inc. Parties all liabilities, loss, cost, or expense (including attorney’s fees) incurred as a result of said breach.
c. No Limitation. The indemnification obligations under this section shall be limited to actual damages incurred and specifically exclude consequential and punitive damages. EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL REFRACTION INC. OR ITS LICENSORS AND SUPPLIERS BE LIABLE TO MEMBER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. EXCEPT AS OTHERWISE PROHIBITED BY APPLICABLE LAW, THE CUMULATIVE LIABILITY OF REFRACTION INC. TO MEMBER FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE TOTAL AMOUNT OF ONE THOUSAND DOLLARS ($1,000).
d. Survival. The terms of this section shall survive any termination or expiration of this Agreement.
e. Costs. Subject to the limitation set forth above, the foregoing indemnity and hold harmless agreement shall include indemnity for all costs, expenses and liabilities (including, without limitation, attorneys’ fees and disbursements) incurred by the Refraction Inc. Parties in connection with any such claim or any action or proceeding brought thereon, and the defense thereof. In addition, in the event that any action or proceeding shall be brought against one or more Refraction Inc. Parties by reason of any such claim, Member, upon request from the Refraction Inc. Party, shall resist and defend such action or proceeding on behalf of the Refraction Inc. Party by counsel appointed by Member’s insurer (if such claim is covered by insurance without reservation) or otherwise by counsel reasonably satisfactory to the Refraction Inc. Party. The Refraction Inc. Parties shall not be bound by any compromise or settlement of any such claim, action or proceeding without the prior written consent of such Refraction Inc. Parties.
f. Refraction Inc. Parties and Member Parties Defined. The terms “Refraction Inc. Party” or “Refraction Inc. Parties” shall mean Refraction Inc., any affiliate of Refraction Inc., Refraction Inc.’s managing agents for the Premises, and each of their respective direct or indirect partners, officers, shareholders, directors, members, trustees, beneficiaries, servants, employees, principals, contractors, licensees, agents or representatives. The terms “Member Party” or “Member Parties” shall mean Member, any Additional Member defined in Part 1 of the Agreement, any affiliate of Member or any Additional Member, and each of their respective direct or indirect partners, officers, shareholders, directors, members, trustees, beneficiaries, servants, employees, principals, contractors, licensees, agents, invitees or representatives.
28. Refraction Inc.’s Indemnity.
a. Indemnity. To the fullest extent permitted by law, Refraction Inc. agrees to indemnify and save harmless the Member Parties from and against all claims of whatever nature by a third party arising from or claimed to have arisen from (i) any intentional misconduct or negligence of the Refraction Inc. Parties (as defined above); (ii) any accident, injury or damage whatsoever caused to any person, or to the property of any person, occurring in or about the Premises from the Commencement Date, and thereafter throughout and until the end of the Term; (iii) any breach of this Agreement by Refraction Inc. Refraction Inc. shall pay such indemnified amounts as they are incurred by the Member Parties.
b. Breach. In the event that Refraction Inc. breaches any of its indemnity obligations hereunder: Refraction Inc. shall pay to the Member Parties all liabilities, loss, cost, or expense (including attorney’s fees) incurred as a result of said breach, and the reasonable value of time expended by the Member Parties as a result of said breach.
c. Limitation. The indemnification obligations under this section shall be limited to actual damages incurred and specifically exclude consequential and punitive damages. Furthermore, Refraction Inc. ’s indemnity specifically excludes any and all damages incurred by the Member Parties which arise from any of the following: any Member Party’s loss of profit, disclosure or dissemination of any Member Party’s confidential information and breach of privacy. Member agrees and acknowledges that the environment provided by the Refraction Inc. community involves the sharing of information and ideas and that Refraction Inc. is not responsible for the acquisition of any of Member’s ideas, confidential or other information or work product by other members or by participants in activities sponsored or provided by Refraction Inc.
d. Survival. The terms of this section shall survive any termination or expiration of this Agreement.
e. Costs. Subject to the limitation set forth above, the foregoing indemnity and hold harmless agreement shall include indemnity for all costs, expenses and liabilities (including, without limitation, attorneys’ fees and disbursements) incurred by the Member Parties in connection with any such claim or any action or proceeding brought thereon, and the defense thereof. In addition, in the event that any action or proceeding shall be brought against one or more Member Parties by reason of any such claim, Refraction Inc., upon request from the Member Party, shall resist and defend such action or proceeding on behalf of the Member Party by counsel appointed by Refraction Inc.’s insurer (if such claim is covered by insurance without reservation) or otherwise by counsel reasonably satisfactory to the Member Party. The Member Parties shall not be bound by any compromise or settlement of any such claim, action or proceeding without the prior written consent of such Member Parties.
29. Severability. In the event that any provision of the Agreement is determined to be invalid, illegal or unenforceable for any reason, in whole or in part, the remaining provisions of the Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by applicable law.
30. Consent for Photography/Video Consent for Media Release & Promotional Use. Member hereby grants permission to Refraction Inc., its employees, agents, interns, and representatives to take and use photographs, digital images, videotape, recorded audio or quoted remarks of Member for use by Refraction Inc. in promotional or educational materials. Such materials may include but are not limited to electronic publications, printed publications, the Refraction Inc. Website, Facebook page, Twitter account and other electronic or print communications. Member further agrees that Member’s name and identity may be revealed in descriptive text or commentary in connection with the image(s) published. Member also agrees that the media may contact Member regarding Member’s involvement with Refraction Inc. Member authorizes the use of these materials indefinitely without compensation. All prints, digital reproductions, video, and audio recordings shall be the property of Refraction Inc.
31. Authorization. Member hereby represents and warrants that Member has all requisite legal power and authority to enter into and fulfill the terms and conditions of the Agreement, no further authorization or approval is necessary or required and the undersigned signatory is authorized to bind Member. Member further represents and warrants that Member’s participation or use of the Services will not conflict with or result in any breach of any license, contract, agreement or other instrument or obligation to which Member is a party.
32. No Assignment. Member shall not voluntarily, involuntarily, or by operation of law, assign, transfer, pledge, mortgage or otherwise encumber (herein collectively an “Assignment”) this Agreement or any interest of Member herein, in whole or in part, without the prior written consent of Refraction Inc. which may be granted or withheld in Refraction Inc.’s sole and absolute discretion. Upon the occurrence of any of such events as described above whether voluntary, involuntary, by operation of law, or otherwise, without the prior written consent of Refraction Inc., such occurrence shall be deemed to be an Event of Default hereunder.
33. Waiver. The waiver by Refraction Inc. of any breach of any term, covenant or condition set forth herein shall not be deemed to be a waiver of any subsequent breach of the same or a waiver of any other term, covenant or condition of this Agreement. No covenant, term or condition of this Agreement shall be deemed to have been waived by Refraction Inc. unless such waiver be in writing and executed by Refraction Inc.
34. Notices. All notices and other communications authorized or required hereunder shall be in writing, and shall be sent by certified mail, return receipt requested, postage prepaid; courier; overnight delivery; or similar methods of communication (provided that there is independent verification of delivery) and any such notice or other communication shall be deemed to have been given when received or rejected by the party to whom such notice or other communication shall be addressed. Notices shall be sent to the addressees set forth in Part 1 of this Agreement or at such other address as the respective party may hereafter designate by thirty (30) days’ advance written notice. Any notice or other communication authorized or required to be sent by either party may be sent by duly authorized employees or agents or attorneys of such party or such agents.
35. Entire Agreement. This Agreement contains the entire and only agreement between the parties, and no oral statements or representations or prior written matter not contained in this instrument shall have any force or effect. This Agreement shall not be modified in any way except by a writing executed by both parties.
36. Applicable Laws. The parties agree that this Agreement shall be construed only in accordance with the laws of the State where the Premises is located.