Welcome to http://www.emberfuel.com/ hereafter “Emberfuel Coworking, LLC”. By using http://www.emberfuel.com/ (and any of its related sites, services or tools), you agree to the following terms with Emberfuel Coworking, LLC.
This Agreement is effective on 12/19/2016, for current users, and upon acceptance for new users. You accept this User Agreement by clicking the Submit button when registering as a member of the space or with a Emberfuel Coworking, LLC account; accessing or using Emberfuel Coworking, LLC sites, services, or tools; or as otherwise indicated on a specific site, service, or tool.
Please be advised: This User Agreement contains provisions that govern how claims you and Emberfuel Coworking, LLC have against each other are resolved (see Limitation of Liability and Legal Disputes Sections below). It also contains an Agreement to Arbitrate, which will, with limited exception, require you to submit claims you have against Emberfuel Coworking, LLC to binding and final arbitration, unless you opt-out of the Agreement to Arbitrate (see Legal Disputes, Section B (“Agreement to Arbitrate”)). Unless you opt-out: (1) you will only be permitted to pursue claims against Emberfuel Coworking, LLC on an individual basis, not as part of any class or representative action or proceeding and (2) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
While using Emberfuel Coworking, LLC sites, services and tools, you will not:
post content or items in inappropriate categories or areas on our sites and services;
violate any laws, third party rights or our policies;
use our sites, services or tools if you are not able to form legally binding contracts or are temporarily or indefinitely suspended from using our sites, services, or tools;
fail to deliver payment for any services purchased by you;
circumvent or manipulate our fee structure, the billing process, or fees owed to Emberfuel Coworking, LLC;
post false, inaccurate, misleading, defamatory, or libelous content;
post inappropriate or offensive content;
circumvent any Emberfuel Coworking, LLC policy or determinations about your account status such as temporary or indefinite suspensions or other account holds, limitations or restrictions;
transfer your Emberfuel Coworking, LLC account (including Feedback) and user ID to another party without our consent;
distribute or post spam, unsolicited or bulk electronic communications, chain letters, or pyramid schemes;
distribute viruses or any other technologies that may harm Emberfuel Coworking, LLC, or the interests or property of Emberfuel Coworking, LLC users;
export or re-export any Emberfuel Coworking, LLC tools except in compliance with the export control laws of any relevant jurisdictions and in accordance with posted rules and restrictions;
copy, modify, or distribute rights or content from the Emberfuel Coworking, LLC sites, services, or tools or Emberfuel Coworking, LLC copyrights and trademarks; or
harvest or otherwise collect information about users, including email addresses, without their consent.
Emberfuel Coworking, LLC and its community of users (the “Community”) work together to keep our sites, services, and tools working properly and the Community safe. Please report problems, offensive content, and policy violations to us.
Emberfuel Coworking, LLC takes every effort to ensure that listed items do not infringe upon the copyright, trademark, or other intellectual property rights of third parties. If you believe that your intellectual property rights have been violated, please inform us immediately and we will investigate.
Emberfuel Coworking, LLC, has sole discretion, without limiting other remedies, to restrict, limit, suspend, or terminate services and user accounts, as well as prohibit access to its sites, services, and tools, and their content, delay or remove hosted content, and take technical and legal steps to restrain users who create problems or possible legal liabilities, infringe the intellectual property rights of third parties, or act inconsistently with the letter or spirit of Emberfuel Coworking, LLC’s policies. Emberfuel Coworking, LLC reserves the right to cancel unconfirmed accounts or abandoned accounts after any lapse of time.
Emberfuel Coworking, LLC charges a membership fee for the physical use of the space. The fees charged for using the services are listed on our Site, and Membership Agreement, Fees may change from time to time. Changes to that schedule are effective immediately upon change. We may choose to temporarily change the fees for our services for promotional events (for example, free passes), and such changes are effective immediately or as needed. Access to the Emberfuel Coworking, LLC site is not a specific fee service, but we retain the right to make any future modifications to fees and site access as needed.
Unless otherwise stated, all fees are quoted in United States Dollars. If your payment method fails or your account is past due, we may collect fees owed using other collection mechanisms. (This includes charging other payment methods on file with us, retaining collection agencies and legal counsel, and for accounts over 180 days past due, deducting the amount owed from your PayPal account balance.) In addition, you will be subject to late fees, and we may suspend or restrict you from using our sites, services, and tools until full payment is made. Emberfuel Coworking, LLC, or the collection agencies we retain, may also report information about your account to credit bureaus, and as a result, late payments, missed payments, or other defaults on your account may be reflected in your credit report.
When providing us with content or posting content on Emberfuel Coworking, LLC sites, you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise any and all copyright, trademark, publicity, and database rights you have in the content, in any media known now or in the future.
Notice for Claims of Intellectual Property Violations and Copyright Infringement Pursuant to Section 512(c) of Title 17 of the United States Code
We respond to notices of alleged copyright infringement as required by the United States Digital Millennium Copyright Act.
We try to keep Emberfuel Coworking, LLC and its sites, services, and tools safe, secure, and functioning properly. You acknowledge that we cannot guarantee the continuous operation of or access to our sites, services, or tools. You further acknowledge that operation of and access to our sites, services, or tools may be interfered with as a result of technical issues or numerous factors outside of our control. You agree that you are making use of our sites, services, and tools at your own risk, and that they are being provided to you on an “AS IS” and “AS AVAILABLE” basis. Accordingly, to the extent permitted by applicable law, we exclude all express or implied warranties, terms and conditions including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement. In addition, to the extent permitted by applicable law, we are not liable, and you agree not to hold Emberfuel Coworking, LLC responsible, for any damages or losses (including, but not limited to, loss of money, goodwill or reputation, profits, or other intangible losses or any special, indirect, or consequential damages) resulting directly or indirectly from:
Your use of or your inability to use our sites, services and tools;
Delays or disruptions in our sites, services, or tools;
Viruses or other malicious software obtained by accessing our sites, services, or tools or any site, services, or tool linked to our sites, services, or tools;
Glitches, bugs, errors, or inaccuracies of any kind in our sites, services, and tools or in the information and graphics obtained from them;
The content, actions, or inactions of third parties using our sites, services, or tools;
A suspension or other action taken with respect to your account;
The duration or manner in which your listings appear in search results as set forth in the Listing Conditions Section below;
Your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to this User Agreement or our policies; Emberfuel Coworking, LLC reserves the right to modify its policies and this User Agreement at any time consistent with the provisions outlined herein.
Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so such disclaimers and exclusions may not apply to you.
Regardless of the previous paragraphs, if we are found to be liable, our liability to you or to any third party is limited to the greater of (a) the amount of fees in dispute not to exceed the total fees, which you paid to us in the 12 months prior to the action giving rise to the liability, or (b) $100.
If you have a dispute with one or more users, you release us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees, and agents) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
Emberfuel Coworking, LLC sites contain robot exclusion headers. Information on our sites is subject to constant updates and changes. You agree that you will not use any robot, spider, scraper, or other automated means to access our sites for any purpose without our express written permission.
Additionally, you agree that you will not:
take any action that imposes or may impose (to be determined in our sole discretion) an unreasonable or disproportionately large load on our infrastructure;
copy, reproduce, modify, create derivative works from, distribute, or publicly display any content (except for your information) from our sites, services, or tools without the prior express written permission of Emberfuel Coworking, LLC and the appropriate third party, as applicable;
interfere or attempt to interfere with the proper working of our sites, services, or tools, or any activities conducted on or with our sites, services, or tools; or
bypass our robot exclusion headers or other measures we may use to prevent or restrict access to our sites.
Information Sharing and Registration with
Social Media Websites
Our Disclosure of Your Information
Information You Share on Emberfuel Coworking, LLC
No Spam, Spyware or Spoofing
Accessing, Reviewing and Changing Your Personal Information
You can browse our website without telling us who you are or revealing any personal information about yourself. If you register for an account with us, you give us your personal information, and you are not anonymous to us. If you choose to provide us with personal information, you consent to the transfer and storage of that information.
When you visit our website or use our applications, services, or tools, we collect information sent to us by your computer, mobile phone, or other access device. This information is not associated with you personally unless you sign in as a registered user.
We may collect the following types of personal information in order to provide you with the use and access to our website, applications, services and tools:
email address, phone number, mobile telephone number, physical contact information,
financial information, such as credit card or bank account numbers, Pay pal Information, or other access you allow for paying your membership, when applicable
transactional information based on your activities or use of our sites, in order to utilize our services, for billing, and other information you provide to take advantage of our space and resources
personal information you provide to us through community discussions, member information pages, correspondence, chats, dispute resolution, or shared by you from other social applications, services, or websites
additional personal information we ask you to submit to authenticate yourself or if we believe you are violating site policies
other supplemental information obtained if or as needed from third parties such as demographic and navigation data; and credit check information, and additional information about you from a credit bureau, as permitted by law
information from your interaction with our sites, services, content and advertising, including, but not limited to, device ID, device type, geo-location information, computer and connection information, statistics on page views, traffic to and from the sites, ad data, IP address and standard web log information
We offer sign-on services that allow you to use third party login credentials to access the Emberfuel Coworking, LLC website. We also offer services that allow you to share information with third party social media websites such as Facebook, Google Plus, Twitter, and others.
Our primary purpose in collecting personal information is to provide you with access to our sites and our resources, and provide you with a safe, smooth, efficient, and customized experience. You agree that we may use your personal information to:
provide access to the site and the services and any customer support you may request;
resolve disputes, collect fees, and troubleshoot problems;
prevent, detect, and investigate potentially prohibited or illegal activities, and enforce our User Agreement;
customize, measure, and improve our services, content, and advertising; and
compare information for accuracy, and verify it with third parties;
We do not sell or rent your personal information to third parties for their marketing purposes without your explicit written consent. We may combine your personal information with information we collect from other companies and use it to improve and personalize our services, content and advertising.
We disclose personal information to respond to legal requirements, enforce our policies, respond to claims that a listing or other content violates the rights of others, or to protect anyone’s rights, property, or safety. Such information will be disclosed in accordance with applicable laws and regulations.
We also share your personal information with:
Service providers under contract who help with our business operations (such as, but not limited to, fraud investigations, bill collection, site operations, and any co-branded or affiliate coworking locations).
Other third parties to whom you explicitly ask us to send your information (or about whom you are otherwise explicitly notified and consent to when using a specific service).
Law enforcement, governmental agencies, or authorized third-parties, in response to a verified request relating to a criminal investigation or alleged illegal activity or any other activity that may expose us, you, or any other Emberfuel Coworking, LLC user to legal liability. In such events, we will disclose information relevant and necessary to the investigation or inquiry, such as name, city, state, ZIP code, telephone number, email address, User ID history, IP address, fraud complaints, bidding and listing history, and anything else we may deem relevant to the investigation.
Credit bureaus. We may report information about your account to credit bureaus. Late payments, missed payments, or other defaults on your account may be reflected in your credit report.
Without limiting the above, in an effort to respect your privacy and our ability to keep the community free from bad actors, we will not otherwise disclose your personal information to law enforcement, other government officials, or other third parties without a subpoena, court order or substantially similar legal procedure, except when we believe in good faith that the disclosure of information is necessary to prevent imminent physical harm or financial loss or to report suspected illegal activity.
Your User ID may be displayed on our site. Other people may be able to see your activity on our site and when they are present in our location. Notices sent to other community members about suspicious activity and policy violations on our sites refer to User IDs and specific items. So if you associate your name with your User ID, the people to whom you have revealed your name will be able to personally identify your site activity by the name you have disclosed.
If you access our sites from a shared computer or a computer in an Internet café, certain information about you, such as your User ID, activity, or reminders from our site, may also be visible to other individuals who use the computer after you.
You agree to use user information only for:
Networking and community growth;
using services offered through Emberfuel Coworking, LLC, or
other purposes that a user expressly allows of you.
We use “cookies” (small data files placed within your computing device) on certain of our pages to help analyze our web page flow; customize our services, content and advertising; measure promotional effectiveness, and promote trust and safety.
A few important things you should know about our use of these technologies are:
Most cookies are “session cookies,” meaning that they are automatically deleted from your hard drive at the end of a session.
You are always free to decline our cookies if your browser permits, although doing so may interfere with your use of some of our sites or services.
You may encounter cookies from third parties, known as service providers, that we have allowed on our site that assist us with various aspects of our web site operations and services
You also may encounter cookies from third parties on certain pages of the sites that we do not control and have not authorized. (For example, if you view a web page created by another user, there may be a cookie placed by that web page.).
We and our users do not tolerate spam. You are not licensed to add other Emberfuel Coworking, LLC users, even a user who has done business with you, to your mailing list (email or physical mail) without their express consent. You may not use our communication tools to send spam or otherwise send content that would violate our User Agreement. We automatically scan and may manually filter messages to check for spam, viruses, phishing attacks, and other malicious activity or illegal or prohibited content, but we do not permanently store messages sent through these tools.
Accessing, Reviewing and Changing Your Personal Information
Your password is the key to your account. Use unique numbers, letters, and special characters, and do not disclose your Emberfuel Coworking, LLC password to anyone. If you do share your password or your personal information with others, remember that you are responsible for all actions taken in the name of your account. If you lose control of your password, you may lose substantial control over your personal information and may be subject to legally binding actions taken on your behalf. Therefore, if your password has been compromised for any reason, you should immediately notify us and change your password.
You can see, review, and change most of your personal information by signing on to Emberfuel Coworking, LLC. Generally, we will not manually modify your personal information because it is very difficult to verify your identity remotely. You must promptly update your personal information if it changes or is inaccurate. Once you make a public posting, you may not be able to change or remove it. Upon your request, we will close your account and remove your personal information from view as soon as reasonably possible, based on your account activity and in accordance with applicable law. We do retain personal information from closed accounts to comply with law, prevent fraud, collect any fees owed, resolve disputes, troubleshoot problems, assist with any investigations, enforce our User Agreement, and take other actions otherwise permitted by law.
You will indemnify and hold us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees, and agents) harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your breach of this User Agreement, your improper use of Emberfuel Coworking, LLC sites, services, or tools, and/or your violation of any law or the rights of a third party.
No agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by this User Agreement.
Except as explicitly stated otherwise, legal notices shall be served on Emberfuel Coworking, LLC registered agent (in the case of Emberfuel Coworking, LLC) or to the email address you have designated on your account (in your case). Notice to you shall be deemed given 24 hours after the email is sent. Alternatively, we may give you legal notice by mail to the Registration Address associated with your account, should it exist, as identified in your Emberfuel Coworking, LLC user information. In such case, notice shall be deemed given three days after the date of mailing.
You and Emberfuel Coworking, LLC agree that any claim or dispute at law or equity that has arisen or may arise between us will be resolved in accordance with the provisions set forth in this Legal Disputes Section. Please read this Section carefully. It affects your rights and will have a substantial impact on how claims you and we have against each other are resolved.
You agree that the laws of the State of Washington, without regard to principles of conflict of laws, will govern this User Agreement and any claim or dispute that has arisen or may arise between you and Emberfuel Coworking, LLC, except as otherwise stated in this User Agreement.
You and Emberfuel Coworking, LLC each agree that any and all disputes or claims that have arisen or may arise between you and Emberfuel Coworking, LLC shall be resolved exclusively through final and binding arbitration, rather than in court, except that you may assert claims in small claims court, if your claims qualify. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate.
Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND EMBERFUEL COWORKING, LLC AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS PART OF ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND EMBERFUEL COWORKING, LLC AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER EMBERFUEL COWORKING, LLC USERS.
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual. An arbitrator also must follow the terms of this User Agreement as a court would.
The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (as applicable), as modified by this Agreement to Arbitrate. The AAA’s rules are available at www.adr.org. A form for initiating arbitration proceedings is available on the AAA’s website at http://www.adr.org.
The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or Emberfuel Coworking, LLC may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and Emberfuel Coworking, LLC subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. Attendance at an in-person hearing may be made by telephone by you and/or Emberfuel Coworking, LLC, unless the arbitrator requires otherwise.
The arbitrator will decide the substance of all claims in accordance with the laws of the State of Washington, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Emberfuel Coworking, LLC users, but is bound by rulings in prior arbitrations involving the same Emberfuel Coworking, LLC user to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
With the exception of any of the provisions of this Agreement to Arbitrate (“Prohibition of Class and Representative Actions and Non-Individualized Relief”), if a court decides that any part of this Agreement to Arbitrate is invalid or unenforceable, the other parts of this Agreement to Arbitrate shall still apply. If a court decides that any of the provisions of this Agreement to Arbitrate (“Prohibition of Class and Representative Actions and Non-Individualized Relief”) is invalid or unenforceable, then the entirety of this Agreement to Arbitrate shall be null and void. The remainder of the User Agreement and its Legal Disputes Section will continue to apply.
Future Changes to the Agreement to Arbitrate
Notwithstanding any provision in the User Agreement to the contrary, you and we agree that if we make any change to this Agreement to Arbitrate (other than a change to any notice address or website link provided herein) in the future, that change shall not apply to any claim of which you provided Emberfuel Coworking, LLC with written notice prior to the effective date of the change.
Unless you and we agree otherwise, in the event that the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt-out of the Agreement to Arbitrate or a court order, you agree that any claim or dispute that has arisen or may arise between you and Emberfuel Coworking, LLC must be resolved exclusively by a state or federal court located in Walla Walla County, Washington. You and Emberfuel Coworking, LLC agree to submit to the personal jurisdiction of the courts located within Walla Walla County, Washington for the purpose of litigating all such claims or disputes.
Emberfuel Coworking, LLC is located at 26 E Main St, Suite 203, Walla Walla, WA 99362. Unless stated otherwise in this User Agreement, if any of the provisions in this User Agreement shall be deemed invalid, void, or for any reason unenforceable, such provisions shall be deemed severable and shall not affect the validity and enforceability of any remaining provisions. In our sole discretion, we may assign this User Agreement, by providing notice of such assignment in accordance with the Notices Section. Headings are for reference purposes only and do not limit the scope or extent of such Section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this User Agreement.
We may amend this User Agreement at any time by posting the amended terms on www.emberfuel.com. Our right to amend the User Agreement includes the right to modify, add to, or remove terms in the User Agreement. Except as stated otherwise in this User Agreement or elsewhere, all amended terms shall automatically be effective 30 days after they are initially posted. Otherwise, any other amendments to this User Agreement must be in writing, signed and dated by you and Emberfuel Coworking, LLC. For purposes of this provision, a “writing” does not include an email message and a signature does not include an electronic signature.
This User Agreement (including incorporated policies and rules) sets forth the entire understanding and agreement between us with respect to the subject matter hereof. The following Sections survive any termination of this User Agreement: Fees and Services, Release, Content, Limitation of Liability, Indemnity and Legal Disputes.
Cobot is the web platform used by Emberfuel Coworking 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.