Somerville Studios SHARED WORKSPACE Membership Agreement

 

Somerville Studios Membership Agreement

This Agreement, including the Terms and Conditions, Membership Details form, will be effective when signed by both parties. In the event of any conflict between the Terms and Conditions and the Membership Details form, the Membership Details form shall prevail. By signing this Agreement you represent to us that you have the proper authority to execute this Agreement on behalf of the company listed above and incur the obligations described in this Agreement on behalf of such company.


TERMS & CONDITIONS

1. Definitions: “Authorized Signatory” means an individual authorized to legally bind your company. “Main Premises” means the Premises in which the Office Space is located, as set forth in the Membership Details form. “Member” means each person you authorize on your Member List as being allowed to use your Office Space and receive the Services (defined below) or other benefits of your Somerville Studios Membership. “Member Company” means a company, entity, or individual that enters into a Membership Agreement with Somerville Studios. “Office Space” means the office number and/or workspace location(s) specified in the Membership Details form. “Premises” means a building or portion of a building in which Somerville Studios offers or plans to offer offices, workstations, other workspaces, and/or other services to Member Companies. “Primary Member” means the primary in-Premises Member contact for Somerville Studios. “Start Date” means the start date set forth on the Membership Details form. “Somerville Studios,” “we” or “us” means the Somerville Studios entity you are contracting with, which may be amended by Somerville Studios from time to time. “You” means the company or other entity listed on the Membership Details form.

2. Services. Subject to the terms and conditions of this agreement, including any attachments, exhibits, and addenda (including any additional or supplemental Membership Details forms) (collectively, the “Agreement”) and any other policies we make available to you from time to time, during the Term (defined below), Somerville Studios will use commercially reasonable efforts to provide you (and your Members, as applicable) the services described below. These services are referred to in this Agreement as the “Services.” ● Non-exclusive access to the Office Space. ● Regular maintenance of the Office Space, consistent with the maintenance provided to similar workspaces in the Premises, provided that we will not be responsible for damage exceeding normal wear and tear. ● Furnishings for the Office Space of the quality and in the quantity typically provided to other Somerville Studios Member Companies with similar office space, workstations, and/or other workspace, as applicable, in the Premises. ● Access to and use of the shared Internet connection. ● Use of the conference rooms at Somerville Studios Premises during such Premises Regular Business Hours on Regular Business Days, subject to availability and your prior reservation of such conference rooms. ● Heat in the Office Space during Regular Business Hours on Regular Business Days. ●

Business Hours/Days. “Regular Business Hours” are generally from 9:00 a.m. to 6:00 p.m. on Regular Business Days in the time zone where the applicable Office Space is located, with the exception of days prior to local bank/government holidays, when Regular Business Hours end at approximately 2:00 p.m. “Regular Business Days” are all weekdays, except local bank/government holidays and up to three other days of which we will inform you.

Our Reserved Rights. We are entitled to access your Office Space, with or without notice, in connection with our provision of the Services, for safety or emergency purposes or for any other purposes. We may temporarily move furniture contained in your Office Space. We reserve the right to alter your Office Space, provided that we will not do so in a manner that substantially decreases the square footage of your assigned Office Space or related amenities. We may also modify or reduce the list of Services or furnishings provided for your Office Space at any time. The Services may be provided by us, an affiliate or a third party.

Office Space Not Timely Available. If we are unable to make the Office Space available by the Start Date for any reason, including due to (i) changes in construction plans, delays in obtaining permits, or any other obstacles in procuring space in any Premises, or (ii) delays caused by you or by changes requested by you, we will not be subject to any liability related to such inability, nor will such failure affect the validity of this Agreement. In this event, except as set forth in this Agreement, you will not be obligated to make payments of the Membership Fee until the Office Space is made available to you.

MEMBERSHIP FEES; PAYMENTS -

Payments Due Upon Signing. Upon submitting a signed and completed Agreement, you will be obligated to deliver to us, in the amount(s) set forth on your Membership Details form.

Membership Fee. During the Term (defined in the AcuityScheduling Confirmation) of this Agreement, we will process payment for your Membership Fee and other then-outstanding fees, in advance, monthly and no later than the fifth (5th ) business day of each month. You shall be responsible for having the necessary funds available in your payment account as of the first day of the month. Our pricing may be changed at any time without further notice. We reserve the right to change our prices for monthly contracts at any time without further notice. You can lock a price by signing a year contract.

Invoices; Financial Information. Somerville Studios will send or otherwise provide invoices and other billing-related documents, information and notices to the Member, at the address stated in this agreement, unless a different Billing Contact is indicated on the Membership Details form.

Change of the Billing Contact will require notice from the Authorized Signatory in accordance with this Agreement.

Late Fees. If payment for the Membership Fee or any other accrued and outstanding fee is not made by the tenth (10th) day of the subscription in which such payment is due, you will be responsible for paying the then-current late charge.

Outstanding Fees. When we receive funds from you, we will first apply funds to any balances which are in arrears and to the earliest month due first. Once past balances are satisfied, any remaining portion of the funds will be applied to current fees due. If any payments remain outstanding after we provide notice to you, we may, in our sole discretion, withhold Services or terminate this Agreement in accordance with the terms here in.
No Refunds. Except as provided here in, there are no refunds of any fees or other amounts paid by you or your Members in connection with the Services.


TERM AND TERMINATION

 

Term. This Agreement will be effective when signed by both parties (Effective Date); provided that we have no obligations to provide you with the Services until the later of (i) the date on which payment of your Service Retainer and first month's Membership Fee has cleared or (ii) the Start Date. If the Start Date is a Regular Business Day, you will be entitled to move into the Office Space after 11 a.m. (in the Office Spaces time zone) on the Start Date. If the Start Date is not a Regular Business Day, you will be entitled to move into the Office Space after 11 a.m. (in the Office Spaces time zone) on the first Regular Business Day after the Start Date. Unless otherwise set forth on the Membership Details form, following the Term, this Agreement shall continue on a month-to-month basis (any term after the Term, a “Renewal Term”). The Term and all subsequent Renewal Terms shall constitute the “Term. If no Term is indicated on your Membership Details Form, the default Term shall commence on the Start Date and end one (1) month after the Start Date. This Agreement will continue until terminated in accordance with this Agreement.

Termination or Suspension After the Start Date by Us. We may withhold Services or immediately terminate this Agreement: (i) upon breach of this Agreement by you or any Member; (ii) upon termination, expiration or material loss of our rights in the Premises; (iii) if any outstanding fees are still due after we provide notice to you; (iv) if you or any of your Members fail to comply with the terms and conditions of this Agreement, the Somerville Studios Member Network Terms of Service, our Wireless Network Terms of Service, or any other policies or instructions provided by us; or (v) at any other time, when we, in our reasonable discretion, see it to do so. You will remain liable for past due amounts, and we may exercise our rights to collect due payment, despite termination or expiration of this Agreement.  You may terminate this agreement by providing thirty days notice.  Notice is effective the first day of the next calendar month after Somerville Studios receives your termination notice.

Removal of Property Upon Termination. Prior to the termination or expiration of this Agreement, you will remove all of your, property from the Office Space and Premises. After providing you with reasonable notice, we will be entitled to dispose of any property remaining in or on the Office Space or Premises after the termination or expiration of this Agreement and will not have any obligation to store such property, and you waive any claims or demands regarding such property or our handling of such property. You will be responsible for paying any fees reasonably incurred by us regarding such removal. Following the termination or expiration of this Agreement, we will not forward or hold mail or other packages delivered to us.

HOUSE RULES.  In addition to any rules, policies and/or procedures that are specific to your Main Premises:

You acknowledge and agree that: ● keys, key codes and other such items used to gain physical access to the Premises or the Office Space remain our property. You will safeguard our property and you will be liable for replacement fees should any such property be lost, stolen or destroyed; ● you shall promptly notify us of any change to your contact and payment information; ● we will provide notice to you of any changes to services, fees, or other updates by emailing the email addresses provided by you● carts, dollies and other freight items which may be made available may not be used in the passenger elevator except at our discretion; ● for security reasons, we may, but have no obligation to, regularly record certain areas in the Premises via video; ● we may disclose information about you as necessary to satisfy any applicable law, rule, regulation, legal process or governmental request or as we otherwise deem reasonably necessary for the protection of us, other Members; ● you will abide by other rules and regulations as determined by us and communicated to you, including by email. We may add, delete or amend the rules and regulations at our reasonable discretion and with notice to you, provided that neither the enforcement of such rules nor the additions, deletions or amendments of such rules shall be discriminatory – that is, such rules or additions will similarly apply to all other Members and Member Companies with Office Space in the Premises receiving similar services; ● you are at least 21 years of age; ● you shall be solely and fully responsible for ensuring that no alcohol is consumed by anyone who is younger than the legal age for consuming alcohol in the applicable jurisdiction; ● your Office Space has a limited capacity. ● common spaces are to be enjoyed by all our Member Companies, members and guests unless otherwise instructed by us, and are for temporary use and not as a place for continuous, everyday work; ● you will provide us with reasonable notice of and complete all required paperwork prior to hosting any event at the Premises; ● you may not make any alterations and/or installations of additional design elements and furniture in the Office Space without prior consultation and approval by us. In the event that any alterations and/or installations are made, you shall also be responsible for the full cost and expense of the removal of any such items and any restoration necessitated by any such alterations. To the extent that we incur any costs in connection with such alteration, installation or removal which are not otherwise paid by you we shall deduct such costs from the Service Retainer. Prior to any such alteration, installation or removal you shall coordinate with the Somerville Studios community manager at the Premises to discuss the appropriate time, manner and means for our facilities team to perform such alteration, installation or removal, at no time shall you or any of your Members perform any alteration, installation or removal yourself; ● you have no expectation of privacy or security with respect to Somerville Studios' Internet connection, networks, telecommunications systems or information processing systems (including any stored computer files, email messages and voice messages), and your activity and any files or messages on or using any of those systems may be monitored at any time without notice, including for security reasons and to ensure compliance with Somerville Studios' policies, regardless of whether such activity occurs on equipment owned by you or Somerville Studios. To use our wireless network you must agree to our Wireless Network Terms of Service available at Somerville Studios.com/legal/wireless-network-terms-of -service; ● you and your computers, tablets, mobile devices and other electronic equipment must be (i) kept up-to-date with the latest software updates provided by the software vendor and (ii) kept clean of any malware, viruses, spyware, worms, Trojans, or anything that is designed to perform malicious, hostile and/or intrusive operations. We reserve the right to remove any device from our networks that poses a threat to our networks or users until the threat is remediated; and ● you grant us permission to use your name, trademark and/or logo to identify you as a Member of Somerville Studios. You acknowledge that we may, from time to time, use your name, trademark and/or logo incidentally and/or in passing in connection with promotion of our and our partners businesses, products and services during and after the Term.

To the extent (i) any such use is objectionable to you, (ii) you notify us of your objections in writing and (iii) provided that we work promptly and in good faith to remove or minimize to the extent reasonably possible under the circumstances the effect of the objected-to conduct, you hereby waive any claims or damages against us relating to such use.

No Member will: ● perform any activity that is reasonably likely to be disruptive or dangerous to us or any other Member Companies, or our or their employees, guests or property, including without limitation the Office Space or the Premises; ● will use the Premises for any living purposes including but not limiting to sleeping overnight; ● use the Services to conduct or pursue any illegal activities; ● use the Services to conduct any activity that is generally regarded as offensive; ● attach or affix any items to the walls or make any other alterations to the Office Space, or install antennas or telecommunication lines or devices in the Office Space or the Premises or bring any additional furniture into the Office Space or the Premises, in each case without our prior written consent; ● misrepresent himself or herself to the Somerville Studios community, either in person or on the Somerville Studios Member Network; ● take, copy or use any information or intellectual property belonging to other Member Companies or their Members or guests, including without limitation personal names, likenesses, voices, business names, trademarks, service marks, logos, trade dress, other identifiers or other intellectual property, or modified or altered versions of the same, and this provision will survive termination of this Agreement; ● take, copy or use for any purpose the name “Somerville Studios” or any of our other business names, trademarks, service marks, logos, trade dress, other identifiers or other intellectual property or modified or altered versions of the same, or take, copy or use for any purpose any pictures or illustrations of any portion of the Premises, without our prior consent, and this provision will survive termination of this Agreement; ● use the Office Space in a “retail," medical,” or other nature involving frequent visits by members of the public; ● make any copies of any keys, key codes or other means of entry to the Office Space or the Premises or lend, share or transfer any keys or keycards to any third party, unless authorized by us in advance; ● install any locks to access the Office Space or anywhere within the Premises, unless authorized by us in advance; or ● allow any guest(s) to enter the building without registering such guest(s) and performing any additional required steps according to our policies. You are responsible for ensuring your Members comply with all House Rules.

Waiver of Claims. To the extent permitted by law, you, on your own behalf and on behalf of your Members, employees, agents, guests and invitees, waive any and all claims and rights against us and our landlords at the Premises and our affiliates, parents, and successors and each of our and their employees, assignees, officers, agents and directors (collectively, the “Somerville Studios Parties”) resulting from injury or damage to, or destruction, theft, or loss of, any property, person or pet.

Limitation of Liability. The aggregate monetary liability of any of the Somerville Studios Parties to you or your Members, employees, agents, guests or invitees for any reason and for all causes of action, will not exceed the total Membership Fees paid by you to us under this Agreement in the twelve (12) months prior to the claim arising. None of the Somerville Studios Parties will be liable under any cause of action, for any indirect, special, incidental, consequential, reliance or punitive damages, including loss of profits or business interruption. You acknowledge and agree that you may not commence any action or proceeding against any of the Somerville Studios Parties, whether in contract, tort, or otherwise, unless the action, suit, or proceeding is commenced within one (1) year of the cause of action's accrual.

Indemnification. You will indemnify the Somerville Studios Parties from and against any and all claims, including third party claims, liabilities, and expenses including reasonable attorneys fees, resulting from any breach of this Agreement by you or your Members or your or their guests, invitees or pets or any of your or their actions or omissions. You are responsible for the actions of and all damages caused by all persons and pets that you, your Members or your or their guests invite to enter any of the Premises. You shall not make any settlement that requires a materially adverse act or admission by us or imposes any obligation upon any of the Somerville Studios Parties without our written consent. None of the Somerville Studios Parties shall be liable for any settlement made without its prior written consent.

Insurance. You are responsible for maintaining, at your own expense and at all times during the Term and for a period of two (2) years after, personal property insurance and commercial general liability insurance covering you and your Members for property loss and damage, injury to your Members and your Members guests or pets and prevention of or denial of use of or access to, all or part of the Premises, in form and amount appropriate to your business. You will ensure that Somerville Studios and the landlord of the applicable Premises shall each be named as additional insured's on any such policies of insurance and that you waive any rights of subrogation you may have against Somerville Studios and the landlord of the applicable premises. You shall provide proof of insurance upon our request.

Pets. If the Office Space is in Premises designated by us to be one in which pets are permitted, and if any Member plans on regularly bringing a pet into the Office Space or otherwise into the Premises, we may require this Member to produce proof of vaccination for such pet in a form satisfactory to us. All pets should remain inside the Office Space unless accompanied by a Member. If any of your Members brings a pet into the Premises, you will be responsible for any injury or damage caused by this pet to other members or guests or other occupants of the Premises or to the property of (i) Somerville Studios or any employees, members or guests or (ii) the owner(s) or other occupants of the Premises. None of the Somerville Studios Parties will be responsible for any injury to such pets. We reserve the right to restrict any Member's right to bring a pet into the Premises in our sole discretion.

Other Members. We do not control and are not responsible for the actions of other Member Companies, Members, or any other third parties. If a dispute arises between Member Companies, members or their invitees or guests, we shall have no responsibility or obligation to participate, mediate or indemnify any party.

Governing Law. This Agreement and the transactions contemplated hereby shall be governed by and construed under the law of the Commonwealth of Massachusetts

Proceedings; Judgment. The proceedings shall be confidential and in English. The award rendered shall be final and binding on both parties. Judgment on the award may be entered in any court of competent jurisdiction. In any action, suit or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover, in addition to any other relief awarded, the prevailing party's reasonable attorneys fees and other fees, costs and expenses of every kind in connection with the action, suit or proceeding, any appeal or petition for review, the collection of any award or the enforcement of any order, as determined by the arbitrator(s) or court, as applicable. This Agreement shall be interpreted and construed in the English language, which is the language of the official text of this Agreement.

Class Action Waiver. Any proceeding to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. Neither you nor we will seek to have any dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in a representative capacity. No proceeding will be combined with another without the prior written consent of all parties to all affected proceedings. You and we also agree not to participate in claims brought in a private attorney general or representative capacity, or any consolidated claims involving another person's account, if we are a party to the proceeding.

Miscellaneous. This instrument, executed in multiple counterparts, is to be construed as a Massachusetts contract, is to take effect as a sealed instrument, sets forth the entire contract between the parties, is binding upon and inures to the benefit of the parties hereto and may only be canceled, modified or amended by a written instrument executed by both Member and Somerville Studios.  If two or more persons are named herein as Member their obligations hereunder shall be joint and several.  The captions and marginal notes are used only as a matter of convenience and are not to be considered a part of this agreement or to use in determining the intent of the parties to it.  Any waiver of a breach or default hereunder shall not be deemed a waiver of subsequent breach or default or either the same provision or any other provision of this agreement.

The waiver of any one time breach of any term, condition, covenant, obligation, or agreement of this contract shall not be considered to be a waiver of that or any other term, condition, covenant, obligation, or agreement or of any subsequent breach thereof.  The failure of either party to enforce any terms or conditions of this contract shall not constitute a waiver of the same or other terms and condition or otherwise prevent or preclude such party from exercising the rights or remedies hereunder, at law or in equity.

Nature of the Agreement; Relationship of the Parties. Your agreement with us is the commercial equivalent of an agreement for accommodation in a hotel. The whole of the Office Space remains our property and in our possession and control. We are giving you the right to share with us the use of the Office Space so that we can provide the Services to you. Notwithstanding anything in this Agreement to the contrary, you and we agree that our relationship is not that of landlord-tenant or lessor-lessee and this Agreement in no way shall be construed as to grant you or any Member any title, easement, lien, possession or related rights in our business, the Premises, the Office Space or anything contained in or on the Premises or Office Space. This Agreement creates no tenancy interest, leasehold estate, or other real property interest. The parties hereto shall each be independent contractors in the performance of their obligations under this Agreement, and this Agreement shall not be deemed to create a fiduciary or agency relationship, or partnership or joint venture, for any purpose. Neither party will in any way misrepresent our relationship.

Waiver. Neither party shall 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.

Subordination. This Agreement is subject and subordinate to our lease with our landlord of the Premises and to any supplemental documentation and to any other agreements to which our lease with such landlord is subject to or subordinate. However, the foregoing does not imply any sublease or other similar relationship involving an interest in real property.

Extraordinary Events. Somerville Studios will not be 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 as a result of any causes or conditions that are beyond Somerville Studio's reasonable control, including without limitation (i) any delays or changes in construction of, or Somerville Studio's ability to procure any space in, any Premises, and (ii) any delays or failure to perform caused by conditions under the control of our landlord at the applicable Premises.

Severable Provisions. Each provision of this Agreement shall be considered separable. To the extent that any provision of this Agreement is prohibited, this Agreement shall be considered amended to the smallest degree possible in order to make the Agreement effective under applicable law