WELCOME to the Hatchery. The Hatchery is a co-working space in the new town of Babcock Ranch.
We are a place for independent workers, entrepreneurs, small business owners, freelancers, telecommuters, artists, non-profit workers, volunteers, hobbyists and anyone looking to transition into a meaningful new career, develop an encore career, or turn a passion into a career.
We are a collaborative working environment and community dedicated to supporting and encouraging our Members to find purpose, further develop passions, and achieve career goals.
The Hatchery is owned and operated by Babcock Ranch Hatchery Operations, LLC, a Delaware limited liability company, doing business as “The Hatchery”, with a street address of 42881 Lake Babcock Drive, Babcock Ranch, Florida 33982 (the “Hatchery”).
Hours of operation: Monday to Friday, 6 a.m. to 8 p.m., Saturday and Sunday, 9 a.m. to 6 p.m. Members will have keycard access for use when the Coordinator is not on duty.
2. Membership. By accepting the terms of this Agreement, Member acknowledges that this is a membership (“Membership”) and not a lease of any kind. As such, this Agreement is not subject to Chapter 83 of the Florida Statutes. It is freely terminable at will by either party, as set forth below. When a legal entity (such as a corporation, partnership, etc.) is a Member, it may identify up to three (3) individual natural persons to partake of the benefits of Membership, which beneficial rights shall continue until said entity changes such benefitted parties by written confirmation to the Hatchery of same. Such Member entity shall be permitted to update the listing of individuals every six (6) months. Member acknowledges that the membership is individual and the use of the Hatchery is solely for the Member (or in the case of an entity, the three (3) individuals) named in this Agreement.
3. Membership Plans. The Hatchery Membership Plans are detailed on Exhibit “A”. By accepting the terms herein, you have also agreed to the Membership Plan of your choosing. Upon receipt of your online submission request for Membership, the Hatchery will determine whether there is sufficient available space at the Hatchery to accommodate your request and whether your proposed use is prohibited pursuant to Paragraph 9 below, and will provide a confirmation by email confirming whether your online submission is approved or denied. Please note that Membership is based upon a first-come, first-served basis and is subject to Paragraph 9 below. From time to time, the Hatchery will host events at the Hatchery, and may make same available to the Members, for a fee, discounted fee, or for no fee, at the sole discretion of the Hatchery.
4. Connection Coordinator. The Hatchery will make reasonable efforts to have a connection coordinator (“Coordinator”) on duty between 9 a.m. and 5 p.m., Monday through Friday, subject to breaks and lunch breaks, with the understanding that, on occasional sick days, personal days or vacation days, a substitute coordinator may not be available at all times. The Coordinator is there as a courtesy to the Members, and not as an administrative assistant to the Members. The Coordinator is authorized to perform the following tasks only: assist in Member sign up and day passes; schedule conference room bookings; assist with catering orders from Slater’s Goods and Provisions; answer phone calls related to Hatchery operations; greet guests and notify Members of guests’ arrival; and answer general questions regarding operations at the Hatchery. The Coordinator is not responsible for accepting mail, deliveries or service of process for any Member.
5. Guests. All guests of a Member shall be required to be registered at the front desk. The Member shall ensure each guest’s compliance with the terms and conditions hereof and the Rules of the Hatchery, and shall indemnify the Hatchery for any violation thereof by a guest, as provided in Paragraph 16 below. Each guest is required to sign in at the front desk each time he or she enters the Hatchery.
6. Rules. Please see the Rules of the Hatchery located on Exhibit “B” (the “Rules”). Member agrees to be bound by and comply with the Rules at all times. Member acknowledges that the Hatchery hereby reserves the right to update the Rules from time to time, and that the Hatchery’s interpretation of the Rules is final. The Hatchery will attempt to contact Member to notify Member of any updates or changes to the Rules within 30 days of their enactment, using the contact information provided in this Agreement. Member may report an infraction of the Rules by another Member by completing an incident write up form on line. Members may bring matters to the attention of the Coordinator, but acknowledge that the Coordinator may not be in a position to address the infraction at the moment of occurrence. Any security matters will be referred to security for the Babcock Ranch Community.
7. Payment. All monthly payments are due and payable from Member in full, in advance. Costs will be pro-rated by the Hatchery when the Membership begins after the first of any month. Member will not be permitted access to the Hatchery if Member’s account is past due. You will automatically be charged any bank fees imposed on the Hatchery, plus a processing fee of $15.00, for any returned payment item due to closed accounts, insufficient funds, etc.
8. Term and Termination. There is no term under this Agreement. Either party may terminate this Agreement at any time. Terminations are effective immediately upon their delivery to the other party by written notice. Should Member terminate this Agreement, Member shall be responsible for costs and fees of membership through the end of the month of the termination. The Hatchery will pro-rate fees for any month where the Hatchery terminates this Agreement for no cause. However, the Hatchery reserves the right to end any membership at any time, immediately and without notice, if Member fails to abide with this Agreement or the Rules. In such case, Member shall be obligated for fees through the end of the month of termination.
9. No Unlawful or Prohibited Use. Member agrees to not use the Hatchery for any purpose that is (i) unlawful or prohibited by these terms, conditions, the Rules or any notices; or (ii) any business purpose determined to be prohibited, at the sole discretion of the Hatchery, which includes, but is not limited to, the sale or brokerage of insurance or title insurance, the provision of real estate brokerage services, the provision of medical services, and any use now or hereafter prohibited by any use restrictions applicable to the Hatchery, unless such use is approved for the Member by the Hatchery in writing, which approval shall be at the sole discretion of the Hatchery. You may not attempt to gain unauthorized access to any accounts, computer systems or networks connected to any Hatchery server or through hacking, password mining or any other means. You may not obtain, or attempt to obtain, any materials or information through any means not intentionally made available hereunder. You will be liable to the Hatchery for any damages or harm suffered by the Hatchery as a result of your violation of this Agreement.
10. Disclosure. The Hatchery reserves the right at all times to disclose any information about you or your membership, as the Hatchery deems necessary, to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in the Hatchery’s sole discretion. You will indemnify the Hatchery for any costs it incurs in responding to any lawful subpoena, process, or order seeking access to your information, whether written or in electronic form.
A. You acknowledge and agree that during your Membership you may be exposed to Confidential Information. “Confidential Information” shall mean all information, in whole or in part, that is disclosed by the Hatchery, or its employees or other Members of the Hatchery (“Disclosing Party”) that is nonpublic, confidential or proprietary in nature. Confidential Information also includes, without limitation, information about business, sales, operations, know-how, trade secrets, technology, products, employees, customers, marketing plans, financial information, services, business affairs, any knowledge gained through examination or observation of or access to the facilities, computer systems and/or books and records of the Disclosing Party. Any analyses, compilations, studies or other documents prepared by the Disclosing Party or otherwise derived in any manner from the Confidential Information and any information that you are obligated to keep confidential or know or have reason to know should be treated as confidential.
B. Your continued Membership obligates you to:
1. Maintain all Confidential Information in strict confidentiality.
2. Not to disclose Confidential Information to any third parties.
3. Not to use the Confidential Information in any way directly or indirectly detrimental to the Disclosing Party.
C. All Confidential Information remains the sole and exclusive property of the Disclosing Party. You acknowledge and agree that nothing in this Agreement nor Membership in the Hatchery will be construed as granting any rights to you, by license or otherwise, in or to any Confidential Information or any patent, copyright or other intellectual property or proprietary rights of the Disclosing Party.
The Obligations of this Paragraph 11 shall survive termination of this Agreement.
12. Participation. You acknowledge that you are participating at your own free will and decision. You acknowledge that the Hatchery does not have any liability with respect to your access, participation in, use of, or any loss of information resulting from such participation or use. Memberships are not transferable and shall not be lent out at any time to anyone for any reason.
13. Disclaimer of Warranties. To the maximum extent permitted by applicable law, the Hatchery provides the Membership, its events and its ancillary Services (as defined in Paragraph 14 below) “as is” and with all faults, and hereby disclaims with respect thereto 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, accuracy or completeness of responses, results, workmanlike effort and lack of negligence. Also, there is no warranty, duty or condition of title, quiet enjoyment, and quiet possession, correspondence to description or non-infringement. The entire risk as to the quality, or arising out of participation in the Hatchery, its events and ancillary Services, remains with the Member. The Hatchery disclaims any warranty regarding the performance or reliability of any IT, telecommunication, video, audio or phone system related equipment available at the Hatchery.
14. Limitation of Liability and Remedies. Member recognizes that the internet services available at the Hatchery are separately owned and not subject to the control of the Hatchery. You agree that the Hatchery shall not be liable for damages incurred or sums paid when the internet services are temporarily or permanently unavailable due to malfunction of, or cessation of, internet services by network or internet service providers, or for transmission errors in, corruption of, or the security of your information carried on such networks or internet service providers. The Hatchery shall have no liability hereunder for damages incurred or sums paid due to fault by you or any third party, or by any harmful components (such as computer viruses, worms, computer sabotage, and denial of service attacks). The Hatchery is not liable for any breach of security on your computer or network. You agree that it will not hold the Hatchery responsible for any selection or retention of, or the actions or omissions of, third parties in connection herewith, or hold a third party responsible for any selection or retention of, or the acts or omissions of, the Hatchery in connection with the internet service. Without limiting the foregoing, Member agrees that it will not hold the Hatchery responsible for (a) third party claims against Member for damages, (b) loss of or damage to Member’s records or data or those of any third party, (c) loss or damages to Member associated with the inoperability of your equipment or applications with any component of the internet service, or (d) failure of the Hatchery equipment (furniture, phone system, etc.).
For purposes of this Agreement, “Services” shall refer to the following:
1. Coordinator services as provided in Paragraph 4 above;
2. Provision of the following utilities: water, waste water, electricity, HVAC and internet access;
3. Maintenance, climate control and cleaning of the Hatchery spaces.
15. Exclusion of Incidental, Consequential and Certain Other Damages. To the maximum extent permitted by applicable law, in no event shall the Hatchery or its subsidiaries (whether or not wholly-owned), affiliates, divisions, and their past, present and future officers, agents, shareholders, members, representatives, employees, successors and assigns, jointly or individually be liable for any direct, special, incidental, indirect, punitive, consequential or other damages whatsoever (including, but not limited to, damages for: lost revenue, loss of profits, loss of technology, loss of confidential or other information, business interruption, personal injury, loss of privacy, failure to meet any duty (including of good faith or of reasonable care), negligence, and any other pecuniary or other loss whatsoever) arising out of or in any way related to the participation in or inability to participate in or use of the Services, the provision of or failure to provide Services, or otherwise under or in connection with any provision of this Agreement, even in the event of the fault, tort (including negligence), strict liability, breach of contract or breach of warranty of the Hatchery, and even if the Hatchery has been advised of the possibility of such damages. In any event and under all circumstances the Hatchery shall not be liable to you on any basis for a sum exceeding the monthly membership fees you have paid the Hatchery.
16. Indemnification. You release, and hereby agree to indemnify, defend and save harmless, the Hatchery and the Hatchery’s subsidiaries (whether or not wholly-owned), affiliates, divisions, and their past, present and future officers, agents, shareholders, members, representatives, employees, successors and assigns, jointly and individually, from and against all claims, liabilities, losses, damages, costs, expenses, judgments, fines and penalties based upon or arising out of (i) your non-compliance with your obligations under this Agreement, (ii) any and all claims by any of your guests, customers or other third parties in connection with your use of the Hatchery or the Services, or (iii) your negligent actions, errors and omissions, willful misconduct and fraud in connection with the participation in or use of the Services. You further agree in the event that you bring a claim or lawsuit in violation of this Agreement, you shall be liable for any attorney’s fees and costs incurred by the Hatchery or its respective officers and agents in connection with the defense of such claim or lawsuit.
17. Insurance. The Hatchery will carry General Liability insurance insuring its interests. The Hatchery shall not be liable for the disappearance, loss or theft of, or damage to your personal/private property, including your computer, cellular phone, money, or jewelry, or for any damage to the property or person of any officers, employees, agents, invitees or guests. Members are not required to provide evidence of insurance, but it is strongly encouraged that Members carry an insurance policy to cover their own equipment and personal property while using the Hatchery, especially if the Member intends on conducting a business enterprise out of the Hatchery, where guests are invited into the Hatchery. Notwithstanding the foregoing, the Hatchery reserves the right to require appropriate insurance from Members depending on the type and extent of business activity being conducted at the Hatchery.
18. Hurricane and Tropical Storm Preparedness. The Member is at all times responsible for all its personal property brought into and left in the Hatchery. In the instance of an anticipated tropical storm or hurricane, the Hatchery Coordinator will alert the members to the Hatchery’s plan to close the Hatchery 24 hours prior to closure, which notice may be provided by email, Cobot’s alert, or written sign posted within the Hatchery spaces. The Member agrees to timely remove all personal property from the Hatchery prior to the noticed closing. Once closed, the Hatchery will not be accessible (keys will not be operable during this time) until re-opened by the Hatchery Coordinator after the storm or the threat of the storm has passed. The Member specifically waives any and all claims against the Hatchery for any damage to the Member’s personal property that Member may fail to timely remove. Further, the Member specifically grants to the Hatchery permission, without an obligation being imposed on the Hatchery to do so, to remove any personal property of the Member from the Hatchery or to relocate same internally within the Hatchery if in the sole discretion of the Hatchery such relocation is in the best interest of safety and to minimize damage to the Hatchery, and hereby waives and releases any and all claims against the Hatchery for damage that may occur to the personal property during any such move by Hatchery staff. Member agrees to also pay the Hatchery for any costs or expenses incurred by the Hatchery to relocate, remove or store the personal property of the Member.
19. Use of Photographic Likeness. By signing this Agreement, you grant the Hatchery the right to use your photographic likeness for promotional purposes, including, without limitation, for online usage and marketing materials.
20. Right to Temporary Closures. In order to keep the Hatchery in the best possible condition, portions or all of the Hatchery may be closed for temporary time periods for repairs and renovations. The Hatchery will give five (5) days’ advance notice of such closures. There will be no adjustment in Membership Fees for these periods of closure.
21. Damage or Destruction of Premises. If the Hatchery is damaged or partially destroyed by fire, casualty or other causes not resulting from Member’s neglect or fault, during the term of this Agreement, the Hatchery, at its sole discretion, may either (i) terminate this Agreement as provided for above in Paragraph 8; or (ii) promptly repair the damage within 120 days (or such later date as is reasonable under the circumstances) from the date of damage or partial destruction. In the instance where the Hatchery elects to repair the damage, the monthly dues will be reduced proportionately to the extent to which damage and repair operations interfere with Member’s use of the Hatchery.
22. Miscellaneous. In the event that any provision or portion of this Agreement is determined to be invalid, illegal or unenforceable for any reason, in whole or in part, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by applicable law. Acceptance of the terms and conditions at https://hatchery.cobot.me/ by Member shall be deemed as effective as executing and delivering this Agreement to the Hatchery. This Agreement shall not be binding on either party until the Hatchery has provided a confirmation email to the Member that the Member’s request for Membership has been approved by the Hatchery, as provided for in Paragraph 3 above, and the first monthly payment has been received by the Hatchery.
• Day Pass
• Hot Desk: Work from any available space within the Cypress Lodge common area.
• Corporate: Up to three (3) employees of an entity Member may work from any workspace within the Cypress Lodge common area.
• Dedicated Desk: Work from your own desk in the Cypress Lodge common area. These dedicated desks include a small lockable filing cabinet for your belongings.
• Flex: Ten (10) days per month, you can work from any available workspace within the Cypress Lodge common area.
• Private Office: Our private offices are perfect for those who want the collaborative environment of the Hatchery but need a space for privacy and to keep work-related materials locked up. We have the following Private Offices:
o McAdow Still Camp (131 square feet)
o Singletary Camp (132 square feet)
o Sandy’s Camp (133 square feet)
o John’s Camp (144 square feet)
o Bo’s Camp (187 square feet)
o Jack’s Branch (furnished for 2 people) (197 square feet)
PERKS OF MEMBERSHIP
• Access to desk space in the Cypress Lodge common area, subject to availability.
• High-speed internet.
• Printing/copying/scanning credits per month; additional printing credits for a nominal fee.
• Onsite connection coordinator (Monday to Friday, 9 a.m. to 5 p.m.), subject to break, lunch, and occasional sick day.
• keycard access for full-time Members (Hot Desk, Dedicated Desk, Corporate, Private Office) (n/a for Day Pass, Event Rental and Conference Room Rental).
• Phone booths (for private calls and video chats).
• Reading nooks.
• Free or reduced fees, with priority access, to events, workshops, networking and happy hours.
• Member networks and online community.
• Mailing address (staff will not sign for packages or accept service of process).
• Member discounts at Slater’s Goods and Provisions, Table & Tap Restaurant, Curry Creek Outfitters (10% discount for full time members and 5% discount for part-time members), and event rental space at the Hatchery (Cypress Lodge common area).
• Conference room use, upon prior reservation (up to five (5) free hours per month – hours do not carry forward), available for meetings, loud phone calls, and video conferencing (subject to availability, on a first-come, first-served basis).
ACCESS DURING EVENTS
• Members and non-members may rent out the Hatchery for events on a first-come, first-served basis.
• Members will have limited to no access to the Cypress Lodge common area of the Hatchery (including tables and desks located in the Cypress Lodge common area). However, Members with private offices will continue to have access to their offices.
• Both conference rooms will be made available for Members as workspace. However, while using the conference rooms during events, please be respectful of the event taking place and limit disruptions.
• It is necessary to respect the personal property of others and of the Hatchery. In case of furniture or property damage arising out of negligence, you need to arrange for a replacement, or pay for the damage.
• You should not bring your own furniture to the Hatchery or stick posters on the walls without prior permission.
• Everyone should attempt to make the shared office spaces pleasant for all users.
• The temperature of the room should be such that it will suit most users. We normally avoid under- or over-heating, as it is a waste of valuable energy.
• There are 2 conference rooms available.
• The furniture in the conference rooms should stay there at all times.
• Do not let the conference room become your second home – to use it, you need to book it.
• You might consider using labels with your name on the food and beverages which you keep in the cupboards or refrigerator.
• Everyone is responsible for keeping the kitchenette clean and tidy. Coordinator will provide periodic notices to clean out the refrigerator.
o The Hatchery is a shared working environment, so everyone should do their best to maintain a respectful working atmosphere.
• Phone Calls
o When speaking on the phone, please adjust the volume of your voice. If your phone call might disrupt other people using the Hatchery, please make your phone call in an available conference room, or take the call outside.
o We suggest you put your cell phone on vibrate mode to prevent disturbing others.
o Although visitors are allowed in the Hatchery, everyone needs to abide by the Rules concerning noise levels.
• All Hatchery Members are responsible for keeping the common areas tidy, which means that everyone should clean their workspace and take care of the garbage once they have finished working for the day. Please recycle whenever possible.
• Cleaning supplies are kept in dedicated places.
Use of the Internet
• Illegal data file download (torrent) is not allowed.
• Do your best towards fair internet usage.
• Members are reminded that the Hatchery is a work space, and appropriate work attire should be worn. Generally, the adage “no shoes, no shirt, no service” applies.
Cobot is the web platform used by The Hatchery 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.