KNOWN SPACE - TERMS OF SERVICE
Updated: June 29, 2018
For the purposes of these terms and conditions we are Known Space, though we may be referred to in these terms and conditions as “we,” “our” or “us,”.
By agreeing to these terms of service you are entering into an agreement that describes your rights and obligations in connection with the services provided through your Known Space membership on our website www.knownspace.co (known as our “online services”) and access to and use of certain space in certain Known Space locations. Please read these terms carefully, as they affect your legal rights. Among other things, these terms include your agreement with us to arbitrate certain claims instead of going to court and, if applicable, to not participate in class action claims. If you have any questions about these terms, please contact firstname.lastname@example.org. By using our services, you are agreeing to abide by and be bound by these terms of service. Some features of our services may be subject to additional guidelines, terms, or rules, which will be posted with those features or otherwise communicated to you.
For the avoidance of doubt, references to “services” in these terms applies solely to access to and use of our locations and the online services we directly provide. “Services” do not include, and we are not involved in or liable for, the provision of services by third parties which you may elect to purchase in connection with your Known Space membership. All such third party services are provided solely by the applicable third party pursuant to an agreement between you and the third party. 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 therewith.
The availability and scope of the services, as well as the availability and scope of benefits we offer in relation to third party services, is subject to change from time to time in our discretion. Without limiting the generality of the foregoing, you acknowledge that our locations are subject to change from time to time.
3. TERMS UPDATES
We may make modifications, deletions or additions to these terms from time to time. Such changes will be effective: (i) thirty (30) days after we provide notice of the changes, whether such notice is provided through the user interface of our online services, is sent to the e-mail address associated with your account or otherwise; or (ii) when you opt-in or otherwise expressly agree to the changes or a version of these terms incorporating the changes, whichever comes first.
4. YOUR MEMBERSHIP
Our online services are available to members who are above the age of 18. Our services in our physical locations are available to members and guests who are above the age of 21. Please be certain you qualify. You agree to provide us with accurate and complete information about yourself when you register with us and as you use our services. You also agree to keep your information up-to-date. Don’t reveal your account password or transfer your keycard or other location access device to anyone else (or let them use your account). You are responsible for maintaining the confidentiality of your password and security of your location access device. You should promptly notify us if you suspect your password or location access device has been compromised.
During the online registration process, you are asked to identify a company with whom your profile is associated. You agree that you will not falsely represent your association with any company, impersonate any third party or otherwise submit any false or misleading information to us. In the event your relationship with the company changes or is terminated, you agree to promptly update your profile to reflect this. Alternately, your individual account may have been created by an authorized representative of your employer. If you are an authorized representative, you hereby warrant and represent to us that you have the proper authority to create and terminate the company account and add and remove individual members to and from the account and agree to indemnify us for any loss we may suffer as a result of any breach of this warranty and representation.
By signing up for an account and providing your payment information, you agree to pay us the recurring or nonrecurring fees as displayed to you at the time you create your account. For Private Office, Dedicated Desk, and Dedicated Desk Light members, we may charge a refundable security deposit equal to one month’s rent. We will refund the security deposit within 15 days after termination of your membership. Any damages and/or fees will be subtracted from your security deposit return. You acknowledge and agree that the payment instrument 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 locations or property) in connection with your Known Space membership. Your use of the services may be immediately suspended if we are unable to charge such payment instrument for any reason. Recurring fees shall be charged on each applicable anniversary (e.g., monthly, quarterly, etc.) of the first date of the applicable period. The fees applicable to your account may be subject to modification from time to time pursuant to notice provided by us at least fifteen (15) days in advance of the payment date for which the modification would be effective. Your continued use of the services following such notice and through the payment date constitutes your agreement to such modified fees. You may at any time cancel your account as set forth below if you do not agree to any modified fees. Except as otherwise stated, all fees must be paid in US$ and are non-refundable, except that pre-paid fees shall be refunded on a pro-rated basis solely in the event that we discontinue your Known Space Membership prior to the end of your pre-paid subscription period.
7a. Termination by You
You can cancel your membership by submitting your notice at email@example.com. If your individual account was created by an authorized representative of your employer, an authorized representative of your employer may terminate your individual account by contacting us. In order for cancellation to be effective, you must provide us with adequate notice. Adequate notice for cancellation is as follows:
For Floating and Daily Memberships, notice must be provided no less than 10 days before the end of the current billing period, which is scheduled monthly from the day you signed up.
For Dedicated Desk, Dedicated Desk Light, and Private Office Membership, notice must be provided no less than 30 days before the end of the current billing period, which is scheduled monthly from the day you signed up.
If you fail to provide proper notice, you will be responsible for payment until the end of the notice period, regardless of whether or not you continue to use Known Space's facilities. We do not provide refunds upon termination or cancellation of your account with respect to amounts already paid.
7b. Termination by Us
If you fail, or if we suspect that you have failed, to comply with any of the provisions of these terms, we may, at our sole discretion and possibly without prior notice to you, restrict your access to your account and our services and/or terminate your account with immediate effect. In addition, we may decline to renew your subscription at the end of your subscription period for violation of these terms of service or for violation of other community rules or norms provided to you.
8a. User Content
As a member, you can post and share content on our online services with others. You are responsible for the things you post and the content you share through our online services, including its legality, reliability, and appropriateness. You may not post or submit anything that promotes or incites racism, bigotry, hatred or physical harm of any kind against any group or individual; bullies, defames, harasses or advocates stalking of, or the intimidation another person; involves pornographic or obscene materials; is harmful, abusive, threatening, offensive, defamatory or libelous; invades the privacy or discloses the private information of anyone; violates someone’s right of publicity; impersonates others or in a manner intended to or does mislead or confuse; is used for unlawful purposes or for promotion of dangerous and illegal activities; involves spamming or the sending of mass solicitations; implies that any statements you make are endorsed by us; is false, deceptive or misleading, or misrepresents or deceives others as to the source, accuracy, integrity or completeness; infringes any intellectual property or proprietary rights of others; transmits any restricted, confidential or proprietary information of others; or transmits content prohibited under any law, rule or court order, or prohibited as a result of any employment, contractual or other legal obligation or relationship.
8b. Removing Content
You can remove the things you post at any time (if you remove your post all of the subsequent comments to that post will also be deleted). Your posts will otherwise remain on our online services, even if your account ends. If you remove a post, it will not be visible to other users via our online services, but others may still be able to access and share those posts if they have been viewed and/or are retained by them on their devices. Even if you remove a post from our online services, a copy will be retained by us and is subject to our data retention policy.
8c Content Use. By posting your content on our online services, you give us the right and license to use, store, reproduce, modify, create derivative works of, publish, distribute, transmit, and display that content through our online services. You agree that we can also make that content available to other users of our online services, who may view and/or use your content, subject to these terms.
8d. Content Regulation. We have no obligation to pre-screen or monitor any posts and we cannot guarantee that any content in the things users posts will be accurate or in compliance with these terms of service. We may at any time and for any reason edit, delete or remove any posts or any information transmitted by you that we believe (in our judgment) violates these terms of service.
8e. Misuse. On the condition that you comply with these terms of service, you have the right to access and use the content and information that is available on our online services. You may not access our services through scraping, spidering, crawling or other technology or software used to access data. You may not download, reproduce, publish, transmit, distribute, modify, create derivative works of, or otherwise exploit any of our content on the online services, nor other users’ content (unless you have the user’s written permission). When using our online services, you agree not to: restrict or interfere with any user’s use of our services; collect email addresses or other contact information of users without their prior consent for the purposes of sending spam or send spam, chain letters or other similar communications to other users; reverse engineer, decompile, disassemble “frame” or “mirror” any portion of our services; use any robot, spider, site search/retrieval application, or other manual process or automatic device or extraction tool in order to access, monitor, copy, use, download, index, scrape, data mine, interact, overload or in any way reproduce or circumvent the navigational structure or presentation of our services; upload or transmit any submission that contains or embodies a software virus, worm, cancelbot, Trojan horse or other harmful, contaminating or destructive feature, computer code, file or program or otherwise violates the restrictions on such submissions set forth in the terms of service; or violate any law, rule, regulation or order of any court.
Enforcement. We reserve the right (but have no obligation) to investigate and take appropriate action, including removing your content from our online services (or modifying it), suspending or terminating your account, and/or reporting you to law enforcement authorities, if your content or conduct violates these terms of service. We may access and disclose any information or content about you or that you have posted where we feel necessary or appropriate to cooperate with governmental requests, regulatory authorities, subpoenas and court orders, and to protect the safety or rights of any person.
9a. Our ownerships.
We and our licensors own our online services, including the software and underlying technology that makes it available. All of these are protected by copyright and other intellectual property laws worldwide. By accessing or using our online services, you do not acquire any ownership rights in or to any of our intellectual property. Unless we expressly grant rights to you in these terms of service, we retain all rights in our online services and software.
9b. Copyright policy. It is our policy to remove, or disable access to, any content that infringes any copyright on our online services after we have been notified by the copyright owner (or their legal agent). If you believe any content on our services infringes your copyright, you may request removal of those materials from our services by providing us the following information:
Identification of the copyrighted work that you claim has been infringed.
Identification of the content that you believe to be infringing and its location on our services. Please describe the material, and provide us with its URL or any other pertinent information that will allow us to locate the content.
Your name, address, telephone number and email address.
A written statement from you that you have a good faith belief that the use of the content is not authorized by the copyright holder, its agent or the law.
A written statement from you that the information that you have supplied is accurate and that you warrant and represent to us that you are either the copyright owner or are authorized to act on the copyright owner's behalf with respect the applicable content.
A signature or the electronic equivalent from the copyright holder or authorized representative.
Notice of claims should be sent to firstname.lastname@example.org or to: Attn: Known Space, 649 Irving St., San Francisco, CA 94122.
10. ENDORSEMENTS AND TESTIMONIALS
From time to time, we may also publish on our online services testimonials by users, related to their experiences with our online services. These testimonials are their “subjective opinions” and they represent individual results. We neither verify them nor claim that they are typical results that others will generally achieve. None of these testimonials have been scripted by us or, to our knowledge, third parties. We publish these testimonials verbatim, except for correction of grammatical or typographical errors. Also, we may shorten some testimonials if they appear lengthy or not entirely relevant for a general audience. Names, locations, dates and other information may have been changed to protect the privacy of users. All other testimonials and endorsements of any type, format or nature that users post are not verified by us and we make no warranty or representation as to their accuracy. You should be cautious when relying on them and you should assume the results described therein are not typical.
11a. Meeting Rooms. You will have access to our space 24 hours a day, 7 days a week if you have a Private Office, Dedicated Desk, or Dedicated Desk Light membership. Those with Floating or Daily memberships will be entitled to use the space Monday through Friday from 9:00 AM to 6:00 PM, all subject to availability of such workspaces or meeting rooms. Every member is allowed to book two hours per month in our conference room for free. These two hours do not roll over but do renew at the start of each month. Meeting rooms may be booked through our online portal where current hourly and daily meeting room fees will be posted. Meeting room fees may be subject to change from time to time.
11b. Mail. You may elect to receive mail and packages at one of our locations if you have a Private Office, Dedicated desk, or Dedicated Desk Light membership. If you have done so, we will accept mail and deliveries on your behalf during such location’s regular business hours on the location’s regular business days. We have no obligation to store such mail or packages for more than thirty (30) 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. It is not meant for an address for the receipt of merchandise or personal goods. As such, we have no obligation to accept bulk or oversized mail or packages.
Floating and Daily members may not have mail delivered to Known Space.
11c. Community Guidelines. You will not perform any activity that is reasonably likely to be disruptive, damaging or dangerous to other members, their guests or the property of the foregoing, or to our employees or our locations or personal property. This includes the restricted behaviors listed in sections 8a and 8e. If you have questions about the guidelines for any of our locations, please contact us.
11d. Utilities. You have the right to use Known Space's utilities, including internet, electricity, water, and trash for regular office usage. Expressly allowed activities include using water for showers, cooking, and personal consumption, and using electricity to power lights, desktop computers, and phones, laptop computers. Expressly prohibited activities include using electricity for space heaters, servers, or other high-electricity-usage equipment without our express written consent.
11e Security. For security purposes, we may regularly record via video certain areas of our locations. You may be required to present a valid, government-issued photo identification in order to gain access to our locations.
11f Property. We are not responsible for any property you may leave behind in one of our locations. It is your responsibility to ensure that you have retrieved all of your personal items prior to leaving.
11g Damage. You may be held liable (and do hereby authorize us to charge you) for the repair cost for all damage to our locations and items therein caused by you or your guests.
11h Use of the Known Space Name; Photos of the Locations; Other Members’ Property. You may not use the name Known Space or use pictures or illustrations of our locations in any advertising, publicity or other purpose without our prior consent. You may not take or copy information belonging to other members.
11i. Nature of these Terms. Notwithstanding anything in these terms of service to the contrary, these terms of service in no way shall be construed as to grant you any title, lease, easement, lien, possession or related rights in our business, our locations or anything contained in our locations. This 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.
12. LIMITATIONS OF LIABILITY
12a. Actions of our users. We do not control and are not responsible for the actions of users on or of our services or at our locations. We also do not and have no obligation to screen, edit, or review submissions. You should be aware that other users may not be who they claim to be. We do not perform background checks on our users nor do we guarantee that our users’ profiles are accurate. User submissions may be misleading, deceptive, or erroneous, and you acknowledge and agree that any use by you of any submission is at your own risk. We do not endorse, support or verify the facts, opinions or recommendations of our users.
12b. Third party websites. Our services may contain links to third party websites or products or services from other providers that may offer you the ability to download or access software, content or services. We are not responsible for the content of these links, or any products, services or other materials relating to such websites. In no event will we be liable, directly or indirectly, to anyone for any damage or loss relating to any use or reliance on any third party site on our services or any products, services or other materials relating to such sites.
12c. Limitation of Liability. We will not be liable to you for any indirect, special, incidental, exemplary, punitive or consequential damages and any loss of profits, revenue or data, even if advised of the possibility of such damages and regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise. To the extent permitted by law, our total liability for any loss whether in contract, tort (including negligence), breach of statutory duty or otherwise, including for any breach of implied warranties or conditions, is limited to the amount you paid us to use the services to which the loss relates.
12d. For the avoidance of doubt. Nothing in these terms and conditions will exclude our liability for (i) death or personal injury caused by our negligence (ii) fraud or fraudulent misrepresentation or (iii) any breach of any implied terms which cannot lawfully be excluded.
12e. Disclaimer of warranties and implied terms. To the extent permitted by law, we disclaim all warranties and terms, express or implied, with respect to our services, including warranties, terms or representations as to the availability, operation, performance and/or use of our services, or any other materials on or accessed via our services, including any warranties or terms of merchantability, fitness for a particular purpose, title, non-infringement and any implied warranties, terms or indemnification arising from course of dealing or course of performance.
12f. Exclusions. Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so the exclusions and limitations above may not apply to you. In such event, such exclusions and limitations shall apply to the maximum extent allowed under applicable law.
13a. You agree to hold us harmless. You agree to indemnify and hold harmless us, our officers, directors, employees, agents, representatives and affiliates, and our third party providers and partners (including the owners of the locations for our locations), from any claims, damages, losses, costs, reasonable attorneys’ fees or other expenses that arise directly or indirectly out of or from your violation of the terms of service, your use of our services, or any information, content or materials contained, displayed or available therein, by you or any other person accessing them under your authorized access methods, your violation of the rights of any third party or your submissions, except in each case to the extent any of the foregoing arises directly out of our gross negligence or willful misconduct.
13b. You agree to cooperate with us. From time to time, we may investigate any actual, alleged or potential violations of these terms of service. You agree to cooperate fully in any of these inquiries. You waive any and all rights against us, our officers, directors, employees, agents, representatives and affiliates, and agree to hold them harmless in connection with any claims relating to any action taken by us as part of our investigation.
14. GENERAL PRIVACY NOTICE
By proceeding to use our services you consent that:
(i) we may collect personal information about you in a variety of ways. Collected information may include information that may be provided by you in the initial sign-up process or during your membership, and information that may be gathered from our security cameras located on the premises. Note that you are not obligated to provide us with personal information and any information collected by us will be provided by you at your own will;
(ii) we may collect, use, store and transfer the information in accordance with applicable laws for various purposes, including facilitating the services, performing accounting and administrative tasks, internal review and audit, compliance with obligations under applicable laws and regulations, and to enforce or manage legal claims;
(iii) we may also transfer the personal information collected by us and make it available to our personnel, advisors, professionals, subcontractors, independent consultants, external third party services providers and our affiliates for the foregoing purposes. Some of these transferees may not be located in your country, and therefore your information may be transferred to countries that may or may not guarantee a level of privacy and data protection that is equivalent to the level of privacy and data protection set by the laws in your country;
15. GENERAL PROVISIONS
This section describes how disputes or claims arising under this Agreement between you and Known Space or between you and another user will be resolved. It includes waivers to both a jury trial and your ability to join other plaintiffs as part of a class action. Please read this section carefully before accepting this Agreement—you may not use the Platform or Services if you do not agree to this section.
15a. Process for Arbitration. All disputes, claims, and controversies arising under or related to this Agreement between you and Known Space or between you and another user will be resolved through binding arbitration as follows:
(i) if the amount of the dispute, claim, or controversy is reasonably less than $25,000, resolution shall be administered online by FairClaims (www.fairclaims.com) or another online arbitration provider of our choosing in accordance with their applicable arbitration rules and procedures effective at the time a claim is made. You consent to receive electronic service of process at the email associated with your membership. Where you are delinquent in responding to such process, you will be responsible for any attorney, court, or other fees associated with the delinquency. The party filing the dispute will be responsible for payment of any costs associated with that filing, including costs borne by Known Space. As a part of the dispute, you may also seek to recover these costs if you prevail.
(ii) if the amount of the dispute, claim or controversy is reasonably $25,000 or more, resolution shall be before a single arbitrator and administered by JAMS. This includes but is not limited to any statutory or common law claims relating to breach, enforcement, or interpretation of these Terms. Any such arbitration will take place in the county of the location, unless you and Known Space mutually agree otherwise. The arbitrator will apply the substantive Laws of California. All claims from $25,000 to $250,000 shall be subject to the JAMS Streamlined Arbitration Rules. The Federal Arbitration Act (9 U.S.C. §§ 1-16) will govern all such arbitrations under this Agreement. To initiate such an arbitration, a party will provide a written demand that states both the basis of the claim and the desired relief. Each party irrevocably and unconditionally consents to service of process through personal service at their corporate headquarters, registered address, or primary address (for individuals or sole proprietors). Nothing in these Terms affects the right of any party to serve process in any other manner permitted by Law.
Once arbitration is initiated as provided in Subsections (i) or (ii) above, the parties will share the costs of the arbitration, facilities, and arbitration reporters (as necessary) equally except as otherwise determined by the arbitrator. Each party will be responsible for its own attorneys’ fees and legal costs. The arbitrator may award the prevailing party recovery of any of the costs of arbitration or legal fees as they see appropriate.
The arbitrator may provide for any monetary or other remedies that are available under applicable Law but may not modify this agreement. The arbitrator will provide a reasoned decision addressing the specifics of the dispute. The decision is binding and not subject to appeal. The parties will act promptly to respect the decision of the arbitrator, including payment of any amounts owed or taking of any action required.
Any judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction.
15b. Certain Claims Excluded. Notwithstanding Section 15a, the parties agree that any claims based on ownership or misuse of the other party’s intellectual property—including patents, copyrights, or trademarks—may be brought before the state or Federal courts located in San Francisco, California. Either party may also seek provisional remedies for injunctive relief under such claims from a court of competent jurisdiction.
15c. Class Action and Jury Waiver. Each party agrees that any action or claim arising from or related to these Terms may only be brought on an individual basis and not part of a class action or consolidated arbitration, or join claims with other users or third parties. Further, each party expressly waives its right to a jury in arbitration and court, where permitted. You may opt-out of this class action and jury waiver by emailing us at email@example.com within 30 days of your first use of the Platform or Services. You must include your name, phone number, physical address, and email address in your opt-out notice. This is your only mechanism for opting out of this section and failure to do so as described constitutes your consent to this waiver. If you choose to opt out of this section, please note that all other provisions in these Terms will remain intact and in full force and effect.
15d. Conflict of Rules. If any provision of the previous section is found to be invalid or unenforceable, the reviewing court or arbitrator, as applicable, will interpret or revise the provisions only as minimally necessary to comply with Law. All the other provisions will remain enforceable and intact as written.
16. THIRD PARTY TERMS
Some of the services available through our online services are provided by third parties. These third parties may have their own terms and restrictions. Any and all additional terms and restrictions will apply to your access and use of the applicable services. If they are in conflict with these terms of service, the additional terms and restrictions will control with respect to such services.
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.
18. CONTACTING US
If you have any questions relating to these terms of service, please contact us at firstname.lastname@example.org.
Cobot is the web platform used by Known Space 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 their Account. Customer shall keep their 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 their 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 their 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 their 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 they are responsible for their 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 them 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 their 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 their 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 them (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 email@example.com.
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 they 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.