TERMS AND CONDITIONS
1) OVERVIEW. The terms and conditions contained herein (the “Terms and Conditions”) supplement the summary of terms (“Summary of Terms”) agreed upon by DigitalC, an Ohio not for profit corporation (“DigitalC”) and the member, as identified on the Summary of Terms (the “Member”). DigitalC agrees to provide the Member with the Services (defined below), subject to these Terms and Conditions and the Summary of Terms (collectively, the “Agreement”). By signing this Agreement, the Member agrees to be bound by these Terms and Conditions. DigitalC reserves the right to amend, modify and update these Terms and Conditions at any time without notice to the Member, but will endeavor to provide the Member with email notice of any such change at the email address for the Primary Contact set forth in the Summary of Terms. Member can request a copy of the most current Terms and Conditions at any time upon making a written request to DigitalC. Member accepts that this Agreement creates no tenancy interest, leasehold estate or other real property interest in Member’s favor with respect to the Premises (defined below), and in no way shall be construed as to grant Member title, easement, lien, possession or related rights in DigitalC’s business, that portion of the building leased to DigitalC at 6815 Euclid Avenue, Cleveland, Ohio 44103 (the “Premises”) or anything contained in the Premises. This Agreement solely provides Member with a prepaid membership (“Membership”) to use the Services (defined below) during the Term (defined below) This Agreement does not create a fiduciary or agency relationship, partnership, or joint venture between DigitalC and Member.
2) PROVIDING THE SERVICES.
a) Description of Member Services. Subject to the terms and conditions of this Agreement, DigitalC will provide the Member during the Term (defined below), with the following (collectively, the “Services”):
i) Access to any desk or office space provided with the membership as set forth in the Summary of Terms (“Membership” or “Type of Membership”) and non-exclusive access to common areas of the Premises in order to access the desk(s) and office space which are part of the Membership. DigitalC reserves the right to change the location, at any time and in DigitalC’s sole discretion, of any desk or office space which is provided with the Membership, provided, however, that DigitalC shall provide fifteen (15) days’ notice to any Member with a Membership Period designated as a “Dedicated Desk” Membership Period prior to changing the location of any desk or office space provided with such Membership. DigitalC reserves the right to place a limit on the number of guests Member is permitted to invite onto the Premises at any one time, in its sole discretion. If the Type of Membership checked in the Summary of Terms is “OTHER,” DigitalC reserves the right to impose additional terms and conditions depending on the specific details of Member’s proposed use and the Services to be provided.
ii) Opportunity to participate in DigitalC-sponsored events (as applicable, and which may be at an additional cost).
iii) Use of shared internet Wi-Fi connection. Service interruptions, if they occur, will be handled in a commercially reasonable manner. DigitalC is not responsible for any data, business or other losses as a result of such interruptions. Member is responsible to protect its own computer and data from electrical surges, theft, virus or other malicious attack. Unless otherwise set forth by DigitalC in writing, Member is receiving a single user account solely for its use of the wireless through one device per log-in session. Member agrees not to download or stream overly large files in a manner that would slow down the network for other users of the internet on the Premises. Member agrees not to resell any aspect of the wireless access, whether for profit or otherwise, share its IP address or ISP internet connection with anyone, access the wireless simultaneously through multiple units or to authorize any other individual or entity to use the internet. Member is not entitled to a refund of any Fees paid hereunder if the internet is not available for any reason.
iv) Regular maintenance of the Premises, provided that DigitalC will not be responsible for damage exceeding normal wear and tear. Member is responsible for any damage that it causes. User support with respect to any equipment, facilities or Services offered hereunder (if any) shall be provided by DigitalC, or its designated third party, at DigitalC’s sole discretion.
v) Use of conference rooms, subject to availability, may be scheduled using Member’s Cobot account. DigitalC reserves the right to modify Member’s conference room bookings and locations with prior notice. Access to any conference rooms or shared use spaces must be reserved. Conference rooms can be booked for one hour at a time, and ‘squatting’ will not be permitted and may constitute a default. Conference rooms are for meetings with customers, teammates, and clients only. If Member wants to hold an event at the Premises, it must provide at least forty-eight (48) hours’ notice and obtain DigitalC’s prior written permission to host an event on the Premises. Member shall clean up after using a conference room or shared space. If Member re-arranges the furniture in the conference room, Member shall return it to the original set-up when finished.
b) Participation in or Use of Services. DigitalC does not have any liability with respect to Member’s access, participation in, use of the Services, or any loss of information resulting from such participation or use. DigitalC may, at any time, restrict Member’s right to access the Premises or otherwise put restrictions or limitations on the normal hours of operation of the Premises, at DigitalC’s sole and absolute discretion.
c) Access to the Premises. If the Membership Period (defined below) is designated as a “1 Day Pass” or “Open Desk” Membership Period, then the Member shall have access to the Premises from Monday through Friday from 8:30 A.M. to 4:30 P.M. If the Membership Period is designated as “Dedicated Desk”, then the Member shall have access to the Premises at all times during the term of its Membership, provided, however, that DigitalC shall have the right to modify Member’s access to the Premises in its sole discretion.
MEMBER EXPRESSLY ACKNOWLEDGES AND AGREES THAT DIGITALC MAKES NO REPRESENTATION OR WARRANTY AS TO THE LEVEL, QUALITY OR AVAILABILITY OF ANY OF THE SERVICES, WHICH MAY BE MODIFIED BY DIGITALC AT ANY TIME AND IN ITS SOLE DISCRETION. INDIVIDUALS WHO OBTAIN A SHARED DESK MEMBERSHIP ARE NOT GUARANTEED AVAILABILITY OF SERVICES, AND UTILIZATION OF ANY RESERVATION SYSTEM PROVIDED BY DIGITALC TO RESERVE A SHARED DESK MAY RESULT IN OVERBOOKING AND WILL NOT GUARANTEE AVAILABILITY. MEMBER’S SOLE RIGHT IN THE EVENT THAT SERVICES ARE UNAVAILABLE IS TO TERMINATE THIS AGREEMENT PURSUANT TO THE TERMS IN SECTION 4 BELOW.
3) FEES AND PAYMENTS.
a) Payment. Member shall make all payments as provided for on the Summary of Terms. All fees shall be made in U.S. dollars and may be made via credit card.
b) Miscellaneous. Member shall promptly notify DigitalC of any changes to its contact and payment information. DigitalC will endeavor to provide notice to Member of any changes to Services, Fees, or other updates by sending an email to the email addresses provided by Member. It is Member’s responsibility to read all emails.
4) TERM AND TERMINATION.
a) Term. When signed by the Member, this Agreement will be effective on the date executed by Member. The membership period on the Summary of Terms (“Membership Period”) shall begin on the Start Date specified in the Summary of Terms.
i) If the Membership Period is designated as an “Open Desk” or “Dedicated Desk” Membership Period, then the “Term” of the Membership shall begin on the Start Date and will continue on a monthly basis, until terminated by a party in accordance with these Terms and Conditions.
ii) If the Membership Period is designated as a “1 Day Pass” Membership Period, then the “Term” of the Membership shall begin on the Start Date and will terminate at the end of that day, or, if the Member elects to continue or extend the Membership, then this Agreement will continue for so long as the Member elects to continue the Membership and pay its fees.
iii) If the Membership Period is designated as an “Other” type Membership Period, then the “Term” of the Membership will begin on the Start Date and will terminate at the end of the Membership Period specified therein.
iv) In all events, any use by Member of the Services is subject to the terms of this Agreement.
b) Automatic Renewal. Unless the Membership Period is designated as a “1 Day Pass” Membership Period, this Agreement will be extended automatically for successive periods equal to the Membership Period in the Summary of Terms, until terminated by DigitalC or the Member as provided for in these Terms and Conditions.
c) Termination.
i) Termination by DigitalC. DigitalC may immediately terminate this Agreement, including, without limitation, the Membership and Member’s access to the Premises, upon written notice to the Primary Contact, in DigitalC’s sole discretion, for any reason or no reason at all. Member will remain liable for past due amounts and DigitalC may exercise its rights to collect due payment despite terminating this Agreement.
ii) Termination by Member. The Member may terminate this Agreement by providing at least thirty (30) days’ prior written notice to DigitalC; provided, however, that only the last business day of a calendar month may be set as the termination date and the Member will not be entitled to any proration with respect to any fees. For example, if the Member delivers a termination notice on June 15, the termination will not be effective until the last business day of July, and Member will owe fees due for the entire month of July. Notwithstanding the foregoing, if the Membership Period on the Summary of Terms is designated as a “Daily” Membership Period, then the Member may terminate this Agreement by providing at least ten (10) days’ prior written notice to DigitalC.
iii) Removal of Property. Prior to the termination or expiration of this Agreement, Member shall remove all of its personal property from the Premises, and will return all key cards or other access devices. After providing reasonable notice, DigitalC will be entitled to dispose of in any manner any personal property remaining on the Premises without any obligation to store such property, and Member waives any clams or demands regarding such property or DigitalC’s handling of such property. Member will be responsible to pay any fees reasonably incurred by DigitalC regarding such removal and disposal. Following the termination or expiration of this Agreement, DigitalC will not hold or forward mail or packages delivered to the Premises.
5) RULES AND REGULATIONS. The Member and all Authorized Users (as identified on the Summary of Terms) agree to comply with all rules and regulations made by DigitalC to be applied to the Premises (the “Rules”), a copy of which can be provided to the Member by DigitalC upon written request. The Member agrees that DigitalC may amend, modify, update and change the Rules at any time in its sole discretion, and does not need to notify the Member prior to changing the Rules.
6) DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY; RELEASE.
a) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DIGITALC PROVIDES THE SERVICES AND ACCESS TO THE PREMISES “AS IS” AND WITH ALL FAULTS, AND HEREBY DISCLAIMS WITH RESPECT TO THE SERVICES AND PREMISES ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY (IF ANY) WARRANTIES, DUTIES OR CONDITIONS OF OR RELATED TO: MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, LACK OF VIRUSES, DATA AND DIGITAL SECURITY, ACCURACY OR COMPLETENESS OF RESPONSES, RESULTS, WORKMANLIKE EFFORT AND LACK OF NEGLIGENCE. ALSO, THERE IS NO WARRANTY, DUTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT. MEMBER ACKNOWLEDGES THAT IT HAS INSPECTED THE PREMISES (OR WILL INSPECT THE PREMISES PRIOR TO COMMENCEMENT OF ITS BUSINESS OPERATIONS), OBSERVED NO DANGEROUS CONDITIONS, ACCEPT THE SERVICES AND THE PREMISES “AS IS” AND ASSUME ALL RISK OF INJURY OR DAMAGE TO MEMBER OR MEMBER’S PROPERTY IN CONNECTION WITH ITS USE OF THE PREMISES REGARDLESS OF THE CONDITION THEREOF. THE ENTIRE RISK AS TO THE QUALITY, OR ARISING OUT OF PARTICIPATION IN OR THE USE OF THE SERVICES OR PREMISES REMAINS WITH MEMBER.
b) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL DIGITALC OR ANY OF ITS RESPECTIVE ASSIGNEES, PARENTS, PARTNERS, SUBSIDIARIES, AFFILIATES, AND ITS PAST, PRESENT AND FUTURE OFFICERS, AGENTS, SHAREHOLDERS, TRUSTEES, MEMBERS, REPRESENTATIVES, EMPLOYEES, SUCCESSORS AND ASSIGNS, JOINTLY OR INDIVIDUALLY (COLLECTIVELY, THE “LICENSOR PARTIES”) BE LIABLE FOR ANY DIRECT, SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, CONSEQUENTIAL OR OTHER DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF ANTICIPATED SAVINGS, LOSS OF DAMAGE TO DATA, OR THIRD PARTY CLAIMS.
7) USE IN SPACE.
a) Alterations. Member must not alter any part of the Premises and must take good care of the Premises, its equipment, fixtures and furnishings which the Member may be permitted to use. Member must not install any cabling, IT or telecom connections without DigitalC’s prior written consent, which DigitalC may refuse in its sole discretion.
b) Use. Member may only use the accommodations for maintaining an office. Office use of a retail or medical nature, involving regular and numerous visits by the public is not permitted.
c) Prohibited Uses. Member agrees that when using the Services, it will not:
i) Use the Services to conduct or pursue any illegal activities.
ii) Perform any activity that is reasonably likely to be disruptive, offensive, or dangerous to other members, their guests, or their property (including, without limitation, unapproved parties, events or loud presentations).
iii) Make copies of any keys, keycards, or other means of entry to the Premises or lend, share, or transfer any keys or keycards to any third party.
iv) Allow any guest(s) to enter the Premises unaccompanied by Member or any Authorized User.
v) Attach or affix any items to the walls, install antennas, or telecommunication lines or devices in or about the Premises or bring additional furniture into the Premises, without DigitalC’s written consent.
vi) Place anything, or allow anything to be placed, in the common areas, or near the glass or any window, door, partition or wall, which may in DigitalC’s judgment, appear unsightly.
vii) Without the prior written consent of DigitalC, use any of DigitalC’s names, logos or marks, or use pictures or illustrations of the Premises in any advertising, publicity or other purpose, except Member may use the address of the Premises as the address of its business for purposes of receiving mail at the Premises. Member’s uses of the Premises for its mail delivery is at its sole risk.
viii) Take or copy information belonging to DigitalC or any other member or their guests, or authorized users.
ix) Except with the prior written consent of DigitalC, use the Premises to sell goods or services at retail directly in or from the Premises.
x) Live or sleep on the Premises.
xi) Conduct any type of business DigitalC deems to be obscene or which interferes with another member’s use or enjoyment of the Premises.
xii) Use the Services in connection with contests, scavenger hunts, pyramid schemes, chain letters, junk email, spamming or any duplicative or unsolicited message (commercial or otherwise).
xiii) Upload files that contain viruses, Trojan Horses, worms, time bombs, cancelbots, corrupted files, malware, DoS, or any other similar software or programs that may damage the operation of another’s computer or property of another.
xiv) Download any file(s) that Member knows, or reasonably should know, cannot be legally reproduced, displayed, performed, and/or distributed in such manner.
xv) Create a false identity or misrepresent itself for the purpose of misleading others.
xvi) Use common spaces as a place for continuous, everyday work.
xvii) Bring motorized scooters or bikes inside the Premises.
xviii) Consume or bring onto the Premises any drugs.
xix) Consume or bring onto the Premises any alcohol without DigitalC’s prior written consent.
xx) Bring firearms, knives, or weapons of any kind onto the Premises.
xxi) Use of skateboards, roller skates, or rollerblades in the Premises.
xxii) Bring any pets on to the Premises.
xxiii) Bring upon, use or keep in the Premises, any kerosene, gasoline or inflammable or combustible fluid or material, or use any method of heating or air conditioning other than that supplied by DigitalC.
xxiv) Use any part of the Premises for any partisan political activity, or to further the election or defeat of any candidate for public office.
xxvi) Use any part of the Premises for publicity or propaganda purposes designated to support or defeat legislation pending before Congress.
d) Breach of Agreement. Failure to follow the rules and regulations set forth in this Agreement or those imposed by the building management will be deemed a breach of this Agreement. In addition to any rights and remedies that DigitalC maintains for breach of this Agreement elsewhere in this Agreement and under applicable law, DigitalC may immediately suspend and deny such Members and their Authorized User’s access to the Premises. To the extent any guest of an Authorized User violates any of the rules and regulations set forth in this Agreement or those imposed by the Premises shopping center, DigitalC may request that such guest be required to immediately leave the Premises and any such guest action or inaction shall be treated as a breach of this Agreement as if it was performed by the Authorized User.
8) MAKEUP OF MEMBER.
a) Member and Authorized User Information. Only those individuals set forth on the Summary of Terms as Member or affiliated with the Member will be deemed to be “Authorized Users” and entitled to the Services provided with the Membership. If the number of Authorized Users exceeds the number allocated on the Summary of Terms, the Member will be required to pay additional fees. DigitalC reserves the right to limit the number of additional Authorized Users in its sole discretion. The Member is responsible for maintaining the accuracy of the names of the Authorized Users on the Summary of Terms. If the Member has any changes to the individuals designated as Authorized Users, before such changes take effect, the Primary Contact must provide DigitalC written notice of any such change and take all actions reasonably requested by DigitalC to effectuate such change. Such changes are subject to DigitalC’s prior written approval. The Member shall be responsible and liable for the acts and/or omissions of any Authorized Users, as it is an act and/or omission by the Member itself.
b) Member’s Primary Contact, as identified on the Summary of Terms, has the authority to act as Member’s representative and agent. Member agrees that the Primary Contact will have the right and authorization to provide, and DigitalC may rely on, any approvals and/or consents of Member under this Agreement, including, without limitation, to approve and bind Member to any changes or increases to the Services, fees, or to any of the terms and conditions of this Agreement.
c) DigitalC reserves the right at any time to institute a guest policy or otherwise approve guests prior to permitting them access to the Premises.
9) MEMBER REQUIREMENTS.
a) Reporting Requirements. Member shall, any time upon request from DigitalC, but not less than annually, provide DigitalC with the following written reports in form and substance required by DigitalC and any other reports reasonably requested by DigitalC:
i) A certified report stating the number of full-time and part-time employees it employs at the Premises, and the total payroll for Member’s full-time and part-time employees working at the Premises;
ii) Annual tax returns and financial statements; and
iii) Evidence of current and continuing business hazard insurance coverage.
The requirements of this Section 9(a) shall survive the expiration or earlier termination of this Agreement.
b) Insurance. Member shall maintain during the Term a hazard insurance policy covering fire and extended coverage in an amount equal to the replacement value of Member’s personal property, commercial general liability insurance in an amount of at least One Million and 00/100 Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000.00) in the aggregate, workers’ compensation insurance, and such other forms of insurance and in such additional amounts as DigitalC requests in a written notice to Member. The insurance requirements in this provision shall be issued by companies satisfactory to DigitalC, and all policies shall be provided to DigitalC, naming DigitalC, Little Buddy Properties, LLC, an Ohio limited liability company, the City of Cleveland and any other party requested by DigitalC as an additional insured. Additionally, Member’s insurance policy shall be primary and non-contributory to DigitalC’s policy. Member’s insurance policies shall be in such form and include such endorsements as DigitalC may reasonably request, and must provide a waiver of subrogation in favor of DigitalC and its parents, affiliates and subsidiaries. Member shall provide proof of any such insurance to DigitalC upon its request. Member is responsible for complying with the Workers’ Compensation laws of the State of Ohio.
c) Government Inspection. Member agrees that the City of Cleveland, a duly authorized representative of the United States Department of Housing and Urban Development, and any other appropriate government official shall be permitted at reasonable hours, and upon reasonable notice to inspect 1) Member’s property; 2) the Premises; and 3) Member’s books of account. As reasonably requested by the City of Cleveland, Member shall provide statements, records, data and free access and entry to the Premises for the purposes of inspecting the Premises or the property of Member until the termination of the Agreement.
d) Workforce Development. Member agrees to work with DigitalC and the Workforce Investment Board for Workforce Area No. 3 to identify and solicit qualified candidates for job opportunities with Member, and shall place special emphasis on the hard to employ, including, but not limited to, the disabled and persons who have been convicted of or have pled guilty to a criminal offense, unless the criminal conviction or circumstances relate to the duties for the particular job sought.
e) Prohibition on Conflicts of Interest. Member represents, warrants and covenants that neither Member, an Authorized User or any individual associated with Member, shall have a Conflict of Interest (defined below). For purposes of this Agreement, any individual is deemed to have a Conflict of Interest if:
i) The individual is an employee, officer, agent, consultant of the City of Cleveland, an elected public official, member of Cleveland City Council or appointed public official, who exercises or has exercised any functions or responsibilities with respect to any activities that are connected with the Premises or who is in a position to participate in a decision-making process or to gain inside information with regard to the Premises or DigitalC, or may obtain a personal or financial interest or benefit from the Premises or DigitalC; or
ii) The individual has a financial interest in any contract, subcontract, or agreement with respect thereto, or in the proceeds thereunder, either for themselves or those with whom they have family or business ties.
The restrictions contained in this Section 9(e) shall apply to all activities regarding the Premises, and shall cover any such interest or benefit during such person’s tenure and for one (1) year thereafter.
f) Non-Discrimination Policy. Member agrees that it shall not discriminate against any employee or applicant for employment because of race, religion, color, sex, sexual orientation, gender identity or expression, national origin, age, disability, ethnic group or Vietnam-era or disabled veteran status. Member shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to race, religion, color, sex, sexual orientation, gender identity or expression, national origin, age, disability, ethnic group, or Vietnam-era or disabled veteran status. Member agrees to and shall post in conspicuous places, available to employees and applicants for employment, notices to be provided by the hiring representatives of Member setting forth the provisions of this nondiscrimination clause. Member will, in all solicitations or advertisements for employees placed by or on behalf of Member, state that the Member is an equal opportunity employer.
g) Environmental Issues. Member shall not possess, manufacture, store, generate, treat or dispose of any hazardous substance on the Premises, or cause, suffer or permit the same to be done by any person or entity. In the event that any hazardous substance is discovered to have been released by Member, its Authorized Users or any of its agents, invitees, or third parties under Member’s control, whether such discovery is made during the Term or at any time thereafter, Member shall 1) notify DigitalC immediately in writing, and 2) at its sole cost and expense, take all steps necessary to remove and properly dispose of such hazardous substances and clean up and remediate any contamination or damage resulting therefrom to the satisfaction of DigitalC.
h) Parking. Member agrees that all parking on the Premises is deemed first come, first served, as this Agreement does not provide Member with any specific guarantees as to parking on the Premises. [NTD: DigitalC to provide specific parking instructions.]
i) Large Packages. No furniture, large or bulky packages, supplies, equipment or merchandise will be received at the Premises unless approved first by DigitalC and shall be subject to the rules of building management for delivery.
j) Security. Member assumes full responsibility for protecting and securing its personal property from theft, robbery and pilferage.
k) Member is responsible for all of its acts or omissions, including, without limitation, any damage Member causes to DigitalC’s or any other person’s property or any injury Member causes to any person. Member agrees to comply with any house rules posted or provided on the Premises. Member is responsible for its personal items that it brings onto the Premises.
10) REPRESENTATIONS AND WARRANTIES. Member represents, warrants and covenants that its performance of the obligations under this Agreement does not violate or conflict with any other agreement or obligation by which Member may be bound, and this Agreement does not infringe upon, nor violate, the rights of any third party or any law, regulation, statute, treaty, directive, ordinance or other government authority. Member represents, warrants and covenants that, if it is an entity, it is duly organized under applicable law, and that Member has the right and authority to enter into and perform its obligations under this Agreement and to grant the rights granted in this Agreement. Member represents, warrants and covenants that it will be fully responsible for acquiring, at its sole cost and expense, all licenses, permits, authorizations and insurance that may be required in order to legally conduct the business activities that Member will conduct within the Premises. All activities conducted within the Premises by Member will comply with all applicable laws, rules and regulations issued by local, state and federal authorities applicable thereto.
11) CONFIDENTIALITY. All confidential information disclosed to Member in connection with its use of the Services or in connection with this Agreement (“Confidential Information”) remains the sole and exclusive property of DigitalC or the respective disclosing party. Member acknowledges and agrees that nothing in these Terms and Conditions or its participation or use of the Services will 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 DigitalC or any participant or user of the Services. Member’s use of the Services obligates it to:
i) Maintain all Confidential Information in strict confidence;
ii) Not to disclose Confidential Information to any third parties; and
iii) Not to use the Confidential Information in any way directly or indirectly detrimental to DigitalC, or any participant or user of the Services.
12) MISCELLANEOUS.
a) DigitalC’s Access Rights. DigitalC may need to enter the Member’s accommodations and may do so at any time, and may move any of Member’s furniture and equipment. However, unless there is an emergency or the Member has given notice to terminate this Agreement, DigitalC will attempt to notify the Member verbally or electronically in advance of such access.
b) Name/Logo. Member hereby grants DigitalC, and its agents, a limited, non-transferable, royalty-free, fully-paid, worldwide, license to use Member’s name(s), trademarks, service marks and logos in connection with DigitalC’s Services hereunder, materials related to it, and the advertisement and promotion thereof.
c) Class Action Waiver. Any proceeding to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. Neither party will seek to have any dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in a representative capacity. No proceeding will be combined with another without the prior written consent of all parties to all affected proceedings.
d) Other Members, Users and Guests. Member must not do anything that may interfere with the use of the Premises by DigitalC, or by any other individuals on the Premises. DigitalC does not control and is not responsible for the actions of other individuals or any other user of the Services or Premises. If a dispute arises between members, other users or their guests, DigitalC shall have no responsibility or obligation to participate, mediate, or indemnify any party.
e) Non-Disparagement. Member shall, during and after the participation in and use of the Services, refrain from making any statements or comments of a defamatory or disparaging nature to any third party regarding the Licensor Parties, other than to comply with law.
f) Indemnification. Member covenants and agrees that it will defend, protect and save and keep DigitalC harmless and indemnified from and against all claims, demands, causes of action, liabilities, losses, damages, costs, expenses, judgments, fines and penalties (including reasonable attorneys’ fees) based upon or arising out of Member’s negligent actions, errors and omissions, willful misconduct, and fraud in connection with the participation in or use of the Services or the Premises, arising out of any other activity Member engages in on or about the Premises, or Member’s breach or alleged breach of this Agreement. If any legal fees are incurred by Licensor Party in enforcing the terms of this Agreement, then Member shall be liable for such reasonable costs and the same shall be due and payable upon presentation of a bill therefor.
g) Damage to Premises. Member is liable and shall reimburse DigitalC for any damage caused by it or those in the Premises with the Member’s permission or at the Member’s invitation whether express or implied, including but not limited to all Authorized Users, employees, contractors, agents or other persons present on the Premises. In the event that any party to this Agreement is compelled to cease performance of its obligations because of: 1) the passage after the date hereof of any laws or regulations; 2) any legal or administrative proceedings of any government or governmental agency, court or administrative agency; 3) strikes, boycotts, lockouts, or other labor disturbances; 4) interruption of power; 5) temporary or permanent lack or loss of supplies or production for reasons outside the affected party's reasonable control; 6) fire; 7) explosion; 8) catastrophe; 9) war or act of terrorism; or 10) weather, earthquake or any other cause beyond the reasonable control of a party that it could not have reasonably foreseen and prevented the effects of, then the party so affected will, while so affected, be relieved to the extent thus prevented from performing its obligations under this Agreement, but in such event, such party will take all reasonable measures to remove the disability and to resume full performance under this Agreement at the earliest possible date.
h) Investigations. DigitalC reserves the right, without any limitation, to: 1) investigate any suspected break-ins or breaches of security, including of its information technology or other systems or networks; 2) investigate any suspected breaches of this Agreement; 3) investigate any information obtained by DigitalC in connection with reviewing law enforcement databases or complying with criminal laws; 4) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters; 5) prosecute violators of this Agreement; and 6) discontinue the Services, in whole or in part, or, suspend or terminate Member’s access to it, in whole or in part, at any time, without notice, for any reason and without any obligation to Member or any third party. Any suspension or termination will not affect Member’s obligations to DigitalC under this Agreement. For security, operational or other related reasons, DigitalC may regularly record Member, any other members, including guests, via video, audio or other means in certain or all of the areas in the Premises and monitor and record communications sent through the Wi-Fi enabled Internet connection provided by DigitalC in the Premises. DigitalC may disclose information about Member as necessary to satisfy any applicable grant, law, regulation, legal process, or government request.
i) Partial Invalidity. If any provision of this Agreement or the application thereof shall to any extent be invalid, the remainder of this Agreement or the application of such provision to persons or circumstances other than those as to which it is held invalid shall not be affected thereby and each other provision of this Agreement shall be valid and enforced to the fullest extent permitted by law.
j) Survival. All provisions of this Agreement reasonably expected to survive the termination of this Agreement will do so.
k) Waiver of Jury Trial. Subject to applicable law, the parties to this Agreement hereby waive and relinquish any and all rights that such party may have to trial by jury in any action, proceeding or counterclaim filed by either party, whether in contract, tort or otherwise, relating directly or indirectly to this Agreement and/or the Premises, or any alleged acts or omissions of DigitalC or Member in connection therewith.
l) Governing Law. This Agreement shall be construed and interpreted in accordance with the laws of the State of Ohio, without giving effect to any choice of law or conflict of law rules or provisions that would cause the application of any other state’s laws. DigitalC and Member submit and consent to the exclusive jurisdiction and venue of the courts of Cuyahoga County, Ohio in any action to enforce (or otherwise relating to) this Agreement.
m) No Assignment. Member may not transfer or otherwise assign any of its rights or obligations under this Agreement without DigitalC’s prior written consent, which DigitalC may withhold in its sole discretion.
MEMBER HEREBY ACKNOWLEDGE THAT IT HAS READ AND UNDERSTOOD AND AGREE TO ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT.
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