On-Demand Services Agreement

Contract Date: Date member completed the membership sign-up form on the On-Demand eCheckout Portal

This On-Demand Services Agreement ("Agreement") is made by and between the entity that leases or manages the specific location inputted in the On Demand eCheckout Portal ("Industrious"), and the customer ("Member") for select On-Demand Services at the Location (as defined below). The On-Demand Services provide the right for members to access coworking spaces and meeting rooms on an as-needed basis without a long-term commitment. Members will have access to all Open Workspaces (as defined below), internet and basic amenities (such as coffee and tea) and various additional services.

Terms:

On-Demand Service(s): Day Passes and Meeting Rooms (each an “On-Demand Service” and collectively the “On-Demand Services”). Members may select which Service they would like on the On Demand eCheckout Portal for the corresponding fee.
Meeting Rooms: An On-Demand Service for purchase that enables Members to book meeting rooms on an as-needed basis. Meeting Rooms can be booked by the hour or by the day. Booking a Meeting Room will grant the Member with exclusive access to a fully-equipped meeting room for the reserved time. For the duration of a Meeting Room reservation, the Member will have access to Open Workspaces.
Day Pass: An On-Demand Service for purchase that enables Members to access Open Workspace on an as-needed basis.
On-Demand Service Fee: For Day Passes, the fee shall be based on the location and the amount of passes. Day Passes are priced individually and may vary based on location, time of purchase, or special promotions. Meeting Rooms pricing will vary by the hour and by the day based on the Location, time of purchase, or special promotions.
Duration: For Day Passes, the duration shall be for a single business day during the Location’s operating hours. For Meeting Rooms, the duration shall be for the amount of hours Member purchased. Meeting Rooms must be booked for at least two (2) hours.
Term: The term of this Agreement, which shall be for the Duration of the Member’s purchased Services.
Location: The specific location inputted in the On Demand eCheckout Portal subject to availability.
Open Workspace(s): refers to any non-exclusive work spaces and workstations in our common areas, with access to a secure internet connection located at the Location.
Credit Card and Debit Card Surcharge: Credit Card and Debit Card Surcharges may apply in accordance with the Membership Agreement.

Section 1. Open Workspace and Services

Open Workspace. Subject to these terms and conditions and payment of all applicable fees, Industrious will permit Member to access and use the Open Workspaces. The terms "Open Workspace", "building", "building in which such Location is located" and any and all other similar terms describing the location of any Open Workspace, any Location, or any building in which any Open Workspace is located shall be deemed to mean the Location used by Member pursuant to this Agreement. Member acknowledges and agrees that (i) Open Workspace is not a dedicated space or private office and only entitles the Member to space in our common areas; (ii) Open Workspace is available to Member and other members of Industrious on a first-come, first-served basis, and accordingly, there is no guarantee of availability of Open Workspace in the Location; and (iii) Open Workspace will be shared by Member and other members of Industrious during the same day.

Member further acknowledges and agrees that Member shall not be entitled to any refunds, credits, abatements, termination rights, or other rights or remedies hereunder, and this Agreement shall remain in full force and effect, in the event that (1) any Open Workspace is not available to Member at the Location on a specific date desired by Member, or (2) Industrious’s rights in the Location terminate or expire for any reason after the Contract Date or during the Term of this Agreement.
Services. The Location will include standard power outlets, common area restrooms and a common area kitchen. For common use within the Location, Industrious will use good faith efforts to provide certain services (collectively, the "Services"), such as access to and use of shared internet connection and other services (which may vary by location) as may be described in the Member handbook for the Location. Any or all of the Services may be provided by Industrious, an affiliate of Industrious, or any third party service provider designated by Industrious from time to time in its sole discretion. All Services, other than shared internet connection, that may be provided by or on behalf of Industrious may be added, deleted, or changed at any time at the sole discretion of Industrious, with or without prior notice to Member.
Business Hours. Business hours for the Location may vary—the hours of operation in effect will be posted at the Location or otherwise made available to Member. Industrious reserves the right to close the Location on national holidays and on days with inclement weather at the discretion of Industrious. Certain Services may be available only during regular business hours, excluding holidays.
Software. In order to receive certain Services (including but not limited to access to the network, shared printing, etc.), Member may be required to install on Member’s computer device certain drivers or software tools (collectively, "Software"). Member acknowledges and agrees that Software may be owned, controlled, or provided by third parties, and that the installation or use of any Software may be subject to separate licenses, terms, conditions, or restrictions Industrious provides no warranties with respect to the Software (even if provided by or through Industrious), and as a condition of use of the Software, Member, on behalf of itself and its employees, agents, and invitees, waives any claim against Industrious, its affiliates, and any person acting on behalf of Industrious or its affiliates arising from or in conjunction with the installation or use of such Software.
Maintenance. Industrious will use commercially reasonable efforts to maintain the Location in good functional condition; provided that Member is and will remain responsible for, and will indemnify, defend and hold harmless Industrious, Landlord (as defined hereunder), and their respective affiliates for any and all damage to any Open Workspace, Meeting Room, private office if applicable, the Location and/or the building in which such Location is located, exceeding normal wear and tear, caused by Member or its agents, employees and invitees, and for the acts and omissions of Member and its employees, agents, or invitees. Member shall take good care of all parts of such Open Workspace, Meeting Room, private office, Location and/or the building in which such Location is located, including any audiovisual equipment, fixtures and furnishings, which Member is permitted to use hereunder. Member shall not alter any part of any Open Workspace, Meeting Room, Location and/or building or Industrious equipment, fixtures or furnishings.
Location Access. Member acknowledges that Industrious and its designees will at all times have access to such Open Workspace and/or Meeting Room, for purposes including but not limited to the maintenance and safety of the same and any emergency situations. Industrious may temporarily move and/or replace parts and components of such Open Workspace and/or Meeting in Industrious’s sole discretion. Notwithstanding the foregoing, except in the case of emergency, Industrious will use commercially reasonable efforts not to disrupt Member’s business in or use of such Open Workspace and/or Meeting Room. Member also acknowledges that the Location may have additional security requirements for entry (such as check-in with building security, presentation of governmental identification documents for verification purposes and taking a photo at check-in). Member understands that noncompliance with such requirements will deny access to the Location.
License Only. Notwithstanding anything herein to the contrary, this Agreement is a revocable license to access such Open Workspace and/or Meeting Room and receive certain Services, upon the terms and conditions set forth herein. The relationship between Industrious and Member is that of a licensor and licensee only, and not a landlord-tenant or lessor-lessee relationship. This Agreement will not be construed to grant Member any right, title, interest, easement, or lien in or to Industrious business, any Open Workspace, Meeting Room, the Location, or anything contained therein, nor will this Agreement be interpreted or construed as a lease. Member acknowledges that this Agreement creates no tenancy interest, leasehold estate, or other real property interest in Member’s favor and Member hereby waives any and all claims and/or defenses based upon any such interest.
Removal of Property. Upon leaving the Location, Member will remove all of its property from the Open Workspace, Meeting Room, and the Location, leaving them in the same condition as they were in when Member first entered such Open Workspace, Meeting Room, and/or Location, reasonable wear and tear excepted. Industrious will not be responsible in any way for any Property or sensitive documents that are left unattended in an Open Workspace or Meeting Room. Industrious may remove and dispose of any of such property remaining in or at an Open Workspace, Meeting Room, or the Location in any way that Industrious chooses, without notice to Member (whether belonging to Member or its employees, agents, or invitees), and without waiving its right to claim from Member all expenses and damages caused by Member’s failure to remove such property, and Member and any other person or entity shall have no right to compensation from or any other claim against Industrious as a result.

In the event that Member fails to remove its property from an Open Workspace, Meeting Room, or Location when the Member leaves at the end at the day, in addition to any other rights and remedies Industrious has hereunder, Industrious will be entitled to charge Member the full daily rate or apply the On-Demand Service Fee per person using such Open Workspace or Meeting Room by or through Member for each day or portion thereof that Member fails to remove its property in accordance with this Agreement.
Guests. Members who purchase a Meeting Room reservation may bring in as many guests as there are seats in the reserved room. All guests must be checked in by Industrious staff and are subject to any additional security requirements of the Location. At all times, Members shall be liable for the behavior of their guests. Members who only purchase a Day Pass are not permitted to bring guests.
Events. Members will have access to certain events or workshops as a result of their purchase of On-Demand Services. Such access shall be limited to the date that the Member uses On-Demand Services and is subject to the local staff’s discretion based on availability and event type.

Section 2. Termination of Agreement

Termination for Breach. Industrious may terminate this Agreement in its sole discretion, effective immediately if Member or any of its agents, employees, or invitees breaches any provision in this Agreement or violates any of Industrious’s rules, policies, or codes of conduct. Provided that, if Member fails to pay any fee when due, if it is Member’s first delinquency in any twelve (12)-month period, Industrious will send Member written notice of the delinquency, and Member will have five (5) days from the date of such notice to cure the delinquency by paying all amounts owed (including late fees and finance charges, as applicable). Member is only entitled to one notice and cure period per twelve (12) month period, and for any subsequent delinquency Industrious may terminate Member’s On-Demand Service and future ability to purchase any On-Demand Services immediately, in Industrious’s sole discretion.
Effect of Termination. Following the termination or expiration of this Agreement for any reason, Member will remain liable for all amounts due or owing as of the effective date of such termination or expiration (regardless of the date Member ceases to utilize such Open Workspace, Meeting Room, or such Location). Without limiting the foregoing, if this Agreement is terminated for breach pursuant to Section 2(1) above, Member will remain liable for all On-Demand Service Fees and any other fees owed through the Duration of the Member’s purchased On-Demand Services. All such fees will be due and payable immediately upon such termination pursuant to Section 2(1). This Section 2 and Sections 4 through 7 of this Agreement will survive the termination or expiration of this Agreement for any reason, as will all other provisions of this Agreement that may be reasonably expected to survive such termination or expiration.

Section 3. Fees

On-Demand Service Fee. The On-Demand Service Fee is due on or before the Contract Date. All On-Demand ServiceFees must be paid in U.S. dollars. The On-Demand Service Fee may be canceled and refunded up to twenty-four (24) hours prior to the start of the reservation.
Other Fees. Where permitted under state law, credit card and debit card transactions may be subject to an extra charge (a "Surcharge") in an amount that is commensurate with the Location’s cost to accept and process credit card and debit card transactions. Additionally, Member may be subject to additional fees for returned checks or other declined payments due to insufficient funds. Member acknowledges that all fees are subject to change from time to time at the discretion of the Location.
Suspension of Services. Industrious may withhold or suspend any Services and/or access to any Open Workspace, Meeting Room and the Location while there are any outstanding amounts due or Member is otherwise in breach of this Agreement, in addition to any other rights and remedies Industrious may have. In the event that Industrious withholds services from Member pursuant to the foregoing, Industrious shall not be liable for any claim of business interruption or for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of such actions.
Form of Payments. Payments for On-Demand Service Fees and other fees hereunder may be made by most major credit cards and debit cards.

Section 4. Member Obligations

Background Checks. Industrious reserves the right to conduct a basic criminal and OFAC background check on any or all of Member’s owners, officers, employees and agents who will be granted access to the Location (particularly if Member desires after-hours access for such persons), and Member agrees to use good faith efforts to assist Industrious with the same, at no cost to Member. After-hours access may only be granted to those persons who pass such background check to Industrious’s sole and absolute satisfaction. Member represents and warrants that neither Member, nor any of its owners, officers, employees or agents has been or will be: (a) designated as a "blocked person" as such term is described in Executive Order 13224, issued September 23, 2001 by George W. Bush, President of the United States; or (b) a person or entity described either as a Specially Designated Global Terrorist or a Specially Designated Nationals and Blocked Persons by the Office of Foreign Assets Control ("OFAC") of the U.S. Department of the Treasury. The continued accuracy throughout the Term of this Agreement of the foregoing representation and warranty is an ongoing material condition to this Agreement and, accordingly, Member has the obligation during the Term to immediately notify Industrious by written notice if the foregoing representation and warranty should ever become false. Any breach of the representation and warranty or failure on the part of Member to so update Industrious constitutes a breach of this Agreement.
Security. Industrious makes no warranty or representation to Member with respect to any security services or systems and Industrious expressly disclaims any liability related to the wrongful access, use or disclosure of any data or information that is processed, stored or transmitted through or by the Services, which includes without limitation, the Software. Member shall be fully responsible for the safety and security of its personal property brought into such Open Workspace, Meeting Room, Location and/or building. As between Industrious and Member, Member shall also be fully responsible for any liability related to the wrongful access, use or disclosure of any data or information that is processed, stored or transmitted through or by the Services, which includes without limitation, the Software. Industrious shall not be liable to Member on account of any loss, injury, liability, damage or theft to any business or personal property of Member, its owners, officers, employees, agents and invitees, other than as a result of Industrious gross negligence or willful misconduct. Member is not guaranteed any kind of key access for the Location self-service. Members are expected to arrive during business hours and temporary keys may be given at the discretion of local staff. Should Member receive any keys, Member acknowledges that all keys, key cards, key fobs, and other such items used to gain physical access to any Open Workspace, Meeting Room, Location, or the building in which such Location is located, remain the property of Industrious, or its landlord or the owner of such Location or each of their respective affiliates (as applicable, "Landlord"). The term "Landlord" shall be deemed to mean each and every Landlord at the Location used by Member pursuant to this Agreement. Member will not attempt to (or allow others to) gain unauthorized access to any computer systems located at or serving the Location or any content or data of Industrious, other members, or any other person. Neither Member nor any of its agents, employees or invitees are permitted to enter any other office space in the Location. Member will use its best efforts to safeguard the Location and Industrious’s property and will be liable for all costs and expenses should any such property be lost or damaged as a result of Member’s and/or its employees’, agents’ or invitees’ acts or omissions. Member is solely responsible for maintaining all necessary security and control of any and all user names, passwords, or any other credentials issued to or used by Member or its employees, agents or invitees, for use with Industrious’s computer systems, networks, or other Services provided under this Agreement. Member will not allow (and will instruct its employees and agents to not allow) a party unknown to them to enter any Open Workspace, Meeting Room, or the Location and acknowledges that such action may result in the termination of this Agreement. Member is and will remain responsible for the actions or omissions of all persons that Member or its employees, agents or invitees allow or invite to enter any Open Workspace, Meeting Room, or theLocation.
Complaints. Member agrees that all issues and complaints relating to any Open Workspace, Meeting Room, or other members will be directed solely to Industrious. Member will have no direct access to or communication with the Landlord (if other than Industrious), and Member agrees not to send any complaints or demands to the Landlord directly.
Privacy Policy. Member agrees that the use of Industrious’s online portal and website are subject to Industrious’s Portal Terms of Use and Privacy Policy, which are available at www.Industriousoffice.com/portalterms/ and www.Industriousoffice.com/privacypolicy/, respectively, and which are subject to change from time to time in Industrious’s sole discretion.
Rules and Policies. Additional rules may be set forth in the Member handbook or other policy documents applicable to the Location, which are subject to change from time to time in Industrious’s sole discretion. Member agrees to abide by all rules and policies as determined by the Location from time to time, whether communicated to Member verbally, by email, other written notice or public posting. Without limiting the foregoing, Industrious may require Member and each of its owners, officers, employees, agents and invitees who will be granted access to the Location to agree to and sign Industrious’s Anti-Harassment Policy prior to using any Open Workspace and/or Meeting Room.
Prohibited Conduct. In addition to any other applicable rules and policies issued by the Location, Member agrees to the following terms and conditions:
1. No Assignment or Sublicense. Member may not sell, lease, license, distribute or grant any interest in any Open Workspace or Meeting Room to any third party. Further, Member may not assign this Agreement in whole or in part, or otherwise transfer, sublicense or otherwise delegate any of Member’s rights or obligations under this Agreement, to any third party.
2. No Alterations. Member may not alter any Open Workspace, Meeting Room, or Location in any manner or attach or affix any items to the walls, floors or windows, without prior written consent of Industrious.
3. No Unapproved Items. Member may not store any of its property or materials in any area of any Open Workspace, Meeting Room, or Location, or install any satellite or microwave antennas, dishes, cabling or telecommunications lines in any Open Workspace, Meeting Room, or Location without prior written consent of Industrious in its sole discretion. Member acknowledges that carts, dollies and any freight items may not be used in the passenger elevator except by appointment made with Industrious, at Industrious’s sole discretion.
4. No Retail Use. Member will use such Open Workspace and/or Meeting Room solely as general office space in the conduct of Member’s business and for no other use whatsoever. Use of the Location for retail, medical or other type of business involving frequent visits by members of the public, manufacturing, or for any other use prohibited by the Member handbook is not permitted. Regular use of the Location is limited to those persons subject to background checks as set forth in this Agreement.
5. No Illegal Activities. Member may not use the Location, any Services, or any Industrious computer systems or networks to conduct or pursue any illegal activities, including but not limited to, downloading, distributing or viewing any illegal content, engaging in any activity in violation of OFAC regulations, and/or illegally downloading any copyrighted content, or any other activity that violates any intellectual property rights, and any such conduct using the Location or Industrious’s systems or networks may result in immediate termination of this Agreement.
6. No Offensive Behavior. Member may not conduct any activity in the Open Workspace, Meeting Room, the Location and/or building in which theLocation is located that is harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise generally regarded as offensive to other people, including but not limited to, involvement in hate groups or activities involving pornographic or sexually explicit materials or obscenities, whether written, oral, or in any form or medium. Member will refrain from any activities that may be disruptive, a nuisance or an annoyance, including but not limited to, acts of disorderly nature or excessive noise. Member may not conduct any activity which may be hazardous to other persons in the building Industrious may determine at its sole discretion what activities may be deemed offensive, disruptive or hazardous.
7. No Malware, Spamming. Member may not upload any files that Member knows or suspects to contain or may contain viruses, Trojan Horses, worms, time bombs, corrupted files, or any other malicious code, whether known or unknown that may damage or disrupt Industrious’s or any other person’s computer systems or networks. Member will take precautions to prevent the spread of viruses, including but not limited to, using up-to-date anti-virus software, enacting policies to avoid opening suspicious emails, and avoiding suspicious websites. Spamming other members or any other persons is strictly prohibited, and any such conduct using the Location or Industrious systems or networks may result in immediate termination of this Agreement.
Personal Information. Member represents and warrants that it has obtained the necessary authorizations and consents for any personal information it processes through the Services, which includes without limitation, the Software.

Section 5. Intellectual Property and Confidentiality

Trademarks. Member may not use Industrious’s name, logo, trademarks, service marks or domain names (collectively, "the Industrious Marks") in any way in connection with Member’s business, without the express written consent of Industrious, in its sole discretion. Member will comply with all standards established by Industrious from time to time with respect to the Industrious Marks. Member hereby acknowledges and agrees that all right, title, and interest in and to the Industrious Marks belong to Industrious and its affiliates, and that all usage and goodwill of the Industrious Marks will inure only to the benefit of Industrious and its affiliates. Member will not use, register, or attempt to register any trademarks or domain names that are confusingly similar to the Industrious Marks, nor use the Industrious Marks in any manner that would indicate that Member has any rights thereto. If consent to use the Industrious Marks is granted as set forth above, Industrious reserves the right to revoke Member’s rights to use the Industrious Marks at any time in Industrious’s sole discretion.
Publicity. Member may not use photos or illustrations of the Location, or any Industrious Marks, in any of Member’s marketing materials or in any other manner without the express written consent of Industrious. Further, no press release, advertising, sales literature or other publicity statements relating to the existence or substance of this Agreement or the relationship of the parties may be made by Member without the prior written approval of Industrious. Member grants Industrious and its affiliates the right to use Member’s trade name(s), logos and/or trademarks in Industrious’s materials prepared for its shareholders or members, or prospective shareholders or members.
Photo and Video Shoots. Member acknowledges that promotional photography and/or video recording (a "Shoot") may occur in the Location from time to time. Industrious will provide Member with reasonable advance notice of any such Shoot, and at such time Member may request that Industrious endeavor to avoid capturing Member’s name, likeness, image, voice and/or appearance in the background any such recordings. Industrious will use commercially reasonable efforts to comply with Member’s request. Subject to the foregoing, by entering that portion of the Location in which a Shoot is taking place, Member and Member’s employees, agents, and invitees consent to such photography and/or video recording and the release, publication, exhibition or reproduction of such recordings in which they may appear for promotional purposes by Industrious and its affiliates and representatives. Subject to the foregoing, Member and its employees, agents, and invitees each hereby releases and discharges Industrious and its agents, representatives, and assignees from any and all claims and demands arising out of or in connection with the use of the name, likeness, image, voice, or appearance of Member or any of its employees, agents, or invitees, including any and all claims for invasion of privacy, right of publicity, misappropriation, misuse, and defamation. Member represents and warrants to Industrious that its employees, agents, and invitees will have been informed of and agreed to this consent, waiver of liability, and release before they enter that portion of the Location in which a Shoot is taking place.
Sensors. Member acknowledges that Industrious does or may utilize sensors that record usage of the Location, excluding any private office, and amenities (the "Sensors"), and consents to the use of the Sensors. The Sensors monitor, among other things, the number of people utilizing a particular space or amenity, the times that a particular space or amenity is used, etc. Low resolution images may be captured, which will be processed by automated software, for the purpose of counting people and upon the completion of said task, the image will be deleted. No sound recordings will be made or captured and no high resolution photographs or videos will be taken. The data collected is anonymous aggregated data. Prior to the implementation of any sensors, Industrious will contractually prohibit vendors of any sensors used from combining any anonymous aggregated data with other data in any manner that could make it personally identifiable data. Industrious will use the data collected for improving or developing its service or products, or for any other lawful business purpose. Subject to the foregoing, Member and its employees, agents, and invitees each hereby release and discharge Industrious and its agents, representatives, and assignees from any and all claims and demands arising out of or in connection with the use of the Sensors, including any and all claims for invasion of privacy, right of publicity, misappropriation, misuse, and defamation. Member represents and warrants to Industrious that its employees, agents, and invitees will have been informed of and agreed to this consent, waiver of liability, and release before they enter that portion of the Location in which the Sensors are being used.
Confidential Information. Member may receive or learn certain confidential information about Industrious or other Industrious members, including without limitation, information regarding its or their business operations, business and marketing plans, pricing, technology, finances and methods (collectively, "Confidential Information"). Member agrees to hold all Confidential Information, whether belonging to Industrious or its other members, in strict confidence and to take all reasonable precautions to protect such Confidential Information. All terms and conditions of this Agreement (including, without limitation, pricing-related information) shall be deemed Confidential Information. Member acknowledges that any disclosure or unauthorized use of Industrious’s Confidential Information will constitute a material breach of this Agreement and cause substantial harm to Industrious for which damages would not be a fully adequate remedy. In the event of any such breach, Industrious will have, in addition to any other available rights and remedies, the right to injunctive relief (without being required to post any bond or security). If an employee or agent of Industrious becomes aware of any Confidential Information of Member, Industrious agrees to cause such employee or agent to hold such Confidential Information in strict confidence and to take all reasonable precautions to protect such Confidential Information, except any disclosure required by law, court order or in connection with a breach of this Agreement by Member.

Section 6. Liability

Waiver of Claims. Member will be solely responsible for maintaining the insurance coverage required hereunder and Member will look solely to such insurance for any and all claims, damages, costs, expenses, liabilities and rights it may have, except to the extent arising or resulting from the gross negligence or willful misconduct of an Industrious Party (defined hereunder). To the maximum extent permitted by law, Member, on its own behalf and on behalf of its owners, officers, employees, agents and invitees, hereby Waives (as defined hereunder) any and all claims, actions, damages, costs, expenses, liabilities and rights against the Location,, Landlord, their respective affiliates, and each of their respective past, present and future principals, members, assignees, managers, directors, officers, employees, agents, successors and assigns (each an "Industrious Party" and collectively, "Industrious Parties") arising or resulting from (collectively, the “Released Claims”) (i) any injury or damage to, or destruction, theft, or loss of, any tangible or intangible property located in or about any Open Workspace, Meeting Room, the Location or the building in which the Location is located, (ii) any personal injury, bodily injury or property damage (as such terms are defined by insurance regulations) occurring in or at any Open Workspace, Meeting Room, the Location or the building in which the Location is located, (iii) the wrongful access or use of any data or information, or (iv) any loss of use or interruption of Member’s business or any interruption or stoppage of any Service, except to the extent arising or resulting from the gross negligence or willful misconduct of an Industrious Party. For purposes of this Agreement, "affiliates" of Industrious or of Landlord include any person or entity that controls, is controlled by, or is under common control with Industrious or Landlord, respectively, including without limitation, any subsidiaries or parent companies; and the term "Waives" means that Member, and its owners, officers, employees, agents and invitees waive and knowingly and voluntarily assume the risk of.
Disclaimer of Warranties. Industrious expressly disclaims and excludes all warranties, whether express, implied or statutory, with respect to any Open Workspace, Meeting Room, the Location and the Services provided by or on behalf of Industrious, including but not limited to, any warranty of merchantability, fitness for a particular purpose, non-infringement, habitability, or quiet enjoyment, or any warranties that may have arisen or may arise from course of performance, course of dealing or usage of trade Industrious makes no representations or warranties regarding the quality, reliability, timeliness or security of any Open Workspace, Meeting Room or any Services provided by or on behalf of Industrious, or that any Services will be uninterrupted or operate error free. Such Open Workspace, Meeting Room, Services and Location provided by Industrious are provided "as is" and "with all faults", on a first-come, first-served basis without any guarantee as to availability on a certain date at the Location.
Exculpation. Member agrees that Member is entering into this Agreement only with Industrious and not with any entity other than Industrious (i.e., the specific entity that leases or manages the location inputted on the On-Demand eCheckout Portal). Member shall have no recourse, and shall not have the right to make any claim against any entity other than Industrious (but only to the extent such claim is not a Released Claim). Industrious's affiliates (including any parent entities), beneficiaries, directors, employees, members, officers, partners, principals, shareholders, and trustees are each an “Exculpated Party,” and collectively “Exculpated Parties,” with respect to any obligations arising or related in any way to this Agreement. Industrious's assets shall specifically exclude the assets of the Exculpated Parties. Member further agrees that this exculpation is an essential and material term of the Agreement and that Industrious would not have entered this Agreement without this exculpation agreement.
Limitation of Liability. The aggregate monetary liability of Industrious Parties to Member, its owners, officers, employees, agents and invitees for any reason and for all causes of action, whether in contract, in tort, or otherwise, not otherwise waived as set forth above, will not exceed the total fees paid by Member to the Industrious under this Agreement during the twelve (12)-month period prior to the date on which the cause of action accrued. Notwithstanding anything herein to the contrary, in no event will any Industrious Party be liable for any claim or cause of action, whether in contract, in tort, or otherwise for any indirect, special, consequential, exemplary, or punitive damages, including but not limited to, loss of profits or business interruption, even if Industrious has been advised of such damages. Member acknowledges that Industrious’s obligations under this Agreement are consideration for the foregoing limitations of liability. The limitations, waivers, disclaimers and exclusions in this Agreement apply to the maximum extent allowed by law, even if a remedy fails its essential purpose.
Limitation of Actions. To the extent not otherwise waived as set forth above, unless otherwise prohibited by applicable state or federal law, Member must commence any action, suit or proceeding against any Industrious Parties, whether in contract, tort, or otherwise, within one (1) year of the cause of action’s accrual and Member, on its own behalf and on behalf of its owners, officers, employees, agents and invitees, hereby Waives any claims not brought within such time period.
Indemnification. Member will indemnify, defend and hold harmless each of the Industrious Parties from, and against any and all actual claims, actions, proceedings, damages, liabilities, costs and expenses of every kind, whether known or unknown, including but not limited to reasonable attorney fees (collectively, "Claim(s)"), to the extent resulting from or arising out of (i) any breach of this Agreement by Member or Member’s owners, officers, employees, agents, or invitees; or (ii) any actions, errors, omissions, negligence, willful misconduct or fraud of Member or Member’s owners, officers, employees, agents or invitees. If any such Claim is brought against any of the Industrious Parties, Member will defend the Claim at Member’s expense, upon written notice from Industrious, using counsel approved by Industrious in writing, such approval not to be unreasonably withheld Industrious Parties’ refusal to consent to a settlement shall not be deemed unreasonable when the proposed settlement requires or results in the Industrious Parties, or any one of them, admitting to any wrongdoing or liability.
Insurance Requirements. Member, at its expense, will maintain at all times during the Term of this Agreement reasonable and customary insurance policies for the size and scope of Member’s business. Upon request from the Location, Member will promptly provide proof of insurance in the form required above. Further, Member, on its own behalf and on behalf of its employees, agents and invitees, hereby releases the Location from any liability resulting from, and agrees to waive all rights of recovery against the Industrious Parties, on account of any and all claims it may have against the Industrious Parties, and shall cause its insurance company to waive all such claims by way of subrogation or otherwise. If Member fails to maintain any insurance required hereunder, Location’s failure to take any action regarding such breach, including but not limited to, requesting or requiring proof of the existence of any such insurance at any time, and/or providing notice to Member of any such non-compliance, will not be considered or construed in any manner as a waiver of any rights of the Location for such breach, nor will such failure of Member to carry any such insurance or such failure of the Location to take any action with regard to such breach impose any obligation or liability on the Location in any manner. If Member fails to carry any required insurance and a Claim occurs that would otherwise be covered by Member’s insurance, the Location, without imposing any liability on the Location or waiving any rights the Location has with regard to Member’s breach, may, but will not be obligated to, make a claim under any insurance policy carried by the Location to cover such Claim, in which event Member will be liable to the Location for all costs and expenses of the Location to cover such Claim, including, but not limited to, the applicable deductible and a reasonable portion of the premium as determined by the Location.
Non-Solicitation. Member will not, during the Term of this Agreement and for a period of one (1) year thereafter, solicit the employment of any officer, employee, contractor, subcontractor or service provider of Industrious, which causes such person, directly or indirectly, to decrease or terminate its employment or business with Industrious. If Member hires any employee, contractor or subcontractor of Industrious during the period described, Member will pay to Industrious an amount equal to such person’s annual salary with or fees from Industrious. Notwithstanding the foregoing, nothing in this paragraph shall restrict or preclude Member from hiring any person who responds to a general solicitation of employment through an advertisement not targeted specifically at Industrious or its employees.

Section 7. Promotional Codes

Effective Term. Promotional codes are valid for a limited time only. Industrious reserves the right to modify or cancel promotional codes at any time. Promotional codes are only valid until the specified expiration date. After the expiration date, the promotional code will no longer be effective.
Conditions. Promotional codes will only be valid when booking through the On-Demand eCheckout Portal. Promotional codes cannot be applied to a previous booking or service. Promotional codes may not be combined with any other discounts or sales incentives unless otherwise agreed upon or without prior authorization from Industrious or its representatives. Each promotional code applies only to qualifying bookings or services.
Not Transferable. Any promotional code is limited to one use per Member. Any promotional code is non-transferrable and may not be resold.
No Taxes. Industrious has no obligation for payment of any tax in conjunction with the distribution or use of any promotional code.
Void if Prohibited. Promotional codes are void if restricted or prohibited by law.

Section 8. General

Breach of Agreement. In the event of a breach of this Agreement by Member, Industrious will have any and all rights and remedies available to Industrious as set forth in this Agreement, at law and/or in equity, including without limitation, recovery of all court costs and reasonable attorneys’ fees incurred by Industrious in pursuing such remedies, whether legal action is filed or not, all of which rights and remedies are cumulative and not exclusive of each other.
Entire Agreement. This Agreement, including all schedules and attachments incorporated by reference, sets forth the entire understanding of the parties relating to its subject matter, and all other understandings, written or oral, are superseded. This Agreement will also be deemed to include all policies, procedures, and requirements published by Industrious from time to time, with which Member hereby agrees to comply. Except as otherwise provided in this Agreement, this Agreement may not be amended except in a writing executed by both parties.
Subordination. Notwithstanding anything herein to the contrary, this Agreement is at all times subject and subordinate to the Lease with the Landlord of the Location used by Member pursuant to this Agreement and to any other agreements to which each such Lease is subject or subordinate. Member acknowledges that Member has no rights under any Lease.
Governing Law; Venue. This Agreement is governed by the laws of New York, without giving effect to any conflict of law principle that would result in the laws of any other jurisdiction governing this Agreement. Except that either party may seek equitable relief from any court of competent jurisdiction located in New York County, New York, any dispute arising out of or relating to this Agreement—including the breach, termination, and validity of this Agreement, and the arbitrability of any claim—that cannot be resolved amicably by mutual agreement shall be finally settled by confidential and binding arbitration in accordance with the arbitration rules of JAMS then in force by one or more arbitrators appointed in accordance with said rules. The place of arbitration shall be New York County, New York. In any action, suit or proceeding between Industriousand Member, including any appellate or alternative dispute resolution proceeding, to enforce rights under this Agreement, the prevailing party shall be entitled to recover from the non-prevailing party, in addition to any other relief awarded, all of its costs and expenses in connection therewith, including, but not limited to, reasonable attorneys’ fees.
Class Action Waiver. Any proceeding to resolve any dispute relating to or arising under this Agreement in any forum will be conducted solely on an individual basis. Neither party will assert any claim (including counterclaim) against the other in arbitration or litigation on a class or consolidated basis, and neither party will pursue or participate in any claim against the other in a representative or private attorney general capacity. No proceeding will be combined with another without the prior written consent of all parties to all affected proceedings. This class action waiver precludes Industrious and Member from pursuing, participating in, or being represented in any class, consolidated, or representative action regarding any claim against the other.
Waivers. Neither party will be deemed by any act or omission to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by the waiving party, and then only to the extent specifically set forth in writing. No delay or omission by any party in exercising any of said rights or remedies shall operate as a waiver thereof. Further, one or more waivers of any covenant or condition by either party will not be construed as a waiver of a subsequent breach of the same covenant or condition, and the consent or approval by either party to or of any act requiring such consent or approval will not be deemed to render unnecessary future consent or approval to or of any subsequent similar act.
Relationship of the Parties. The parties to this Agreement are independent contractors and will not be considered agents, employees, servants, joint venturers, or partners of one another. Neither party has the authority to bind the other party except as explicitly set forth in this Agreement, and neither party will make any representation or warranty otherwise Industrious will have no responsibility for any fee or expense incurred by Member in connection with either party’s performance of this Agreement, or provision or use of the Services.
Successors and Assigns. In the event of any transfer or transfers of Industrious interest in any Location, Industrious will automatically be relieved of any and all respective obligations accruing from and after the date of such transfer with respect to the Location. Following any such transfer(s), all rights, obligations and interests of Industrious under this Agreement will apply to, inure to the benefit of, and be binding on any such successors and assigns of Industrious with respect to the Location.
No Third-Party Beneficiaries. Except for third parties entitled to indemnity under this Agreement or third parties whose liability is specifically limited pursuant to the terms of this Agreement, the parties to this Agreement do not intend to confer any right or remedy on any third party.
Force Majeure. Neither party is liable for, and will not be considered in default or breach of this Agreement on account of, any delay or failure to perform as required by this Agreement (with the exception of Member’s obligation to pay any sum due to Industrious hereunder, including without limitation, the On-Demand Service Fees, which obligation will remain unaffected by the provisions of this paragraph) as a result of any causes or conditions that are beyond such party’s reasonable control and which such party is unable to overcome by the exercise of reasonable diligence, provided that the affected party will use commercially reasonable efforts to promptly resume normal performance. For the avoidance of doubt, Member’s payment obligations under this Agreement remain unaffected by circumstances beyond Industrious’s reasonable control, including public health crises (such as COVID-19) and public health measures in response thereto.
Severability. If a provision of this Agreement is determined to be unenforceable in any respect, the enforceability of the provision in any other respect and of the remaining provisions of this Agreement will not be impaired.
Notices. Unless expressly specified otherwise herein, all notices, requests, demands and other communications to be delivered hereunder will be in writing and delivered in person, by nationally recognized overnight carrier, or by registered or certified mail, return-receipt requested and postage prepaid, to the following addresses: if to Industrious, to: Industrious, Attn: Legal Department, 215 Park Avenue South, 9th Floor, New York, NY 10003; and if to Member: to the address provided by Member upon execution of this Agreement. All notices will be deemed effective as of the date of confirmed delivery or refusal of receipt. In addition to the foregoing methods, notices from Industrious to Member may also be delivered by email to the email address provided by Member upon execution of this Agreement. Notices of non-renewal by Member may, at the Member’s option, be delivered by email to Industrious email address provided to Member upon execution of this Agreement. Delivery of notices by email hereunder will be deemed effective upon transmission. Each party may update its respective address and/or e-mail address from time to time upon written notice to the other. Member must promptly provide Industrious with any change of address, e-mail address and other contact information (including phone number). Member agrees to accept community-wide emails sent out to all members by the Industrious from time to time, which will be the responsibility of Member to review.
Updates to Agreement. Notwithstanding any other provision in this Agreement, Industrious may from time to time update the terms of this Agreement by providing at least thirty (30) days’ notice to Member; provided that such updates shall not materially interfere with Member’s rights under this Agreement or impose any additional material obligations on Member. Member acknowledges that Member’s continued use of such Open Workspace, Meeting Room and/or Services beyond such thirty (30)-day period will constitute acceptance of such updated terms. Member acknowledges that Industrious may serve notice of any changes to Services, fees or other updates through community-wide emails sent out to all members or through notices posted at the Location, and Member agrees to accept and review such community-wide notices.
Accord and Satisfaction. No payment by Member or receipt by Industrious of a lesser amount than required hereunder will be deemed to be other than on account of the earliest amounts due hereunder, nor will any endorsement or statement on any check or any letter accompanying any check or payment be deemed an accord and satisfaction and Industrious may accept such check or payment without prejudice to its rights to recover the balance of such amounts or pursue any other rights and remedies it has under this Agreement.
Time of Essence. Time is of the essence with respect to the performance of each Member’s obligations under this Agreement.