Workstation West Berkeley Coworking Membership License Agreement – Terms and Conditions
This is a binding agreement between you as the Member (“Licensee”) and Creative Arts Gallery, LLC, dba Workstation West Berkeley (hereafter referred to as WWB). Please read it carefully to understand what you can expect of us and what we expect of you.
WWB is a co-working business offering shared workspace in West Berkeley. Licensee desires to obtain a license from WWB and to become a member and occupy space at WWB’s West Berkeley office and WWB agrees to grant such membership license and the associated benefits of WWB as set forth below.
NOW, THEREFORE, for and in consideration of the foregoing promises, the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties do hereby covenant and agree as follows:
A. Definition of Terms:
1. “Additional Fees” means charges for all additional goods or services you use each month not explicitly covered by your Membership Fee which may include, without limitation, premium beverage and snack items, printing and conference room usage beyond the hours included in your Membership Fee, fees for special events that you host at WWB, etc.
2. “Common Spaces” refers to those areas of the WWB Premises designated by WWB for shared access by Members. Common spaces currently include the kitchen area, hot seat room, bathrooms, private phone booths, outdoor patio and garden areas.
3. “Default” means any of the conditions described in Section J below.
4. “Fees” or “Fee” means both the Membership Fee and all Additional Fees.
5. “Force Majeure” means strikes, acts of God, shortages of labor or commercially available materials, war, terrorist acts, civil disturbances and other causes beyond the reasonable control of the performing party.
6. “Guest” means any person(s) that Licensee invites onto the Premises who is not a current member of WWB. Guest policy, and Member’s responsibilities for their Guests, are enumerated in sections F.11 and G below.
7. “License” means the license granted in Section B below.
8. “Licensee” means the person entering into this Agreement with WWB.
9. “Member”, “You”, “Your” refers to the Licensee.
10. “Membership Fee” means the amount due based on your current membership category. 11. “Office Space” refers to the specific office or workspace location (if applicable) paid for and authorized to be occupied by you pursuant to this Agreement.
12. “Premises” refers to the entire property commonly known as: 2241 Sixth St, 2247 Sixth St., 831 Bancroft Way, and 833 Bancroft Way.
13. “We”, “Us”, “Our” or “WWB” refers to Workstation West Berkeley.
14. “WWB Member Portal” refers to the online program used by WWB to register and manage Members.
B. License. Subject to Licensee’s compliance with the terms and provisions of this Agreement, WWB hereby grants Licensee a revocable license to enter upon the Premises for the purpose of general office use and associated business activities as more specifically described herein (the “License”) for the time period when Licensee maintains an active membership. This license does not extend to any other person.
C. Payment of Membership and Related Fees
1. Hourly and Daily Hot Seat charges go into effect immediately at the time of the reservation. Hourly members will be charged 1 hour at the time of reservation, with the balance due upon checkout that day. A 10-minute grace period is allowed before an additional hourly rate is
charged for the final hour or partial hour. Monthly Hot Seats and Dedicated Desk Memberships are month-to-month, and payments are due in advance on the first of each month. The first payment is due upon booking your Membership.
2. Members may pay via credit card or debit card or ACH bank transfer. Monthly membership payments are considered late if not received by 6 pm on the third of the month. We will charge a late fee of 10% of the applicable membership fee per day starting on the 4th day after the due date until payment is made in full (including all accrued late fees). WWB reserves the right to suspend the Member’s access if their account isn’t brought current within five (5) business days.
3. Members who pay with a credit card will be charged an extra 3% to cover service fees. You also agree to pay in a timely manner all sales, excise, use, value added and any other taxes required of you by any governmental authority and/or attributable to your Membership Fee set forth in this Agreement.
4. Monthly and Dedicated Desk Memberships will automatically renew on the first of each month at the current monthly rate unless we have received a written notice of termination from you at least 14 days in advance (not including holidays).
5. We will automatically charge your card for additional services you use each month, such as premium beverage and snack items, or printing and conference room usage beyond the credit hours included in your monthly membership.
6. When we receive payments from you, we will first apply funds to any fee balances which are in arrears (which could include Membership fees, late fees, printing, conference room, food/beverage) and to the oldest payment due first. Once past balances are paid, any remaining portion of the funds will be applied to the current fees due.
7. We do not provide refunds of any fees paid by you.
D. Term and Termination
1. Term: The Term of the License and this Agreement is based on your membership category. Hot Seat Hourly, Daily and Weekly Members may terminate their membership at any time under the condition that all payments have been settled. There will be no refunds for Member fees already paid.
2. Hot Seat Monthly and Dedicated Desk Members may terminate their Membership by sending an email to WWB staff (workstationwb@gmail.com) specifying the date when the member wants their Membership to conclude (which date must be at least 14 days after the email notice (not including holidays). The request must be received by WWB staff at least 14 days (not including holidays) in advance of your monthly renewal date. WWB reserves the right the decline to renew any recurring Membership with or without cause.
3. Termination by WWB
a. WWB may terminate this Agreement in the event of any violation or default by you or any of your Guests of this Agreement or the Terms and Conditions if you fail to promptly cure the violation or Default after being notified by WWB of such breach in accordance with Section J below.
b. Notwithstanding the foregoing, WWB may immediately suspend or terminate this Agreement in the case of a material breach or inappropriate actions by you or any of your Designated Members that WWB in its sole judgement and discretion deems to be unsafe or that may adversely affect WWB, its staff, Members, guests or invitees.
c. WWB may also immediately suspend or terminate this Agreement in the event the current owners sell WWB and/or the physical Premises or there is otherwise a material change in ownership of the business or the Premises; or if WWB is unable to perform its obligations for reasons beyond its reasonable control, including but not limited to government laws or proceedings, labor disturbances, interruption of power or internet service; health mandates or emergencies; fire; explosion; catastrophe; war or act of terrorism; weather; or earthquake.
E. Obligation to Return Office Space in Good Condition
1. You are responsible for leaving any work space that you have used in clean condition and in good repair, excepting only normal wear and tear.
2. You must return any keys or other property belonging to WWB and inform us of any security access codes that may have been changed.
3. Dedicated Desk members must also remove all personal property from the Premises upon the termination or expiration of your Membership. We shall be entitled to dispose of any personal property that you do not remove after giving you reasonable notice, and we have no obligation to store your property. You will be responsible for paying the reasonable
cost incurred by us to remove the personal property. We will have no responsibility or liability for forwarding or holding mail or packages delivered after the termination or expiration date.
F. Member Benefits
1. Hours of Access
a. Members have access to the Premises Monday – Friday, 9 am – 5 pm, except that those who have purchased an Extended Hours membership have access from 7 am – 11 pm. The patio/garden area is open 9:00 AM – 5:00 PM seven days per week, regardless of membership category. Workstation staff are on site Monday through Friday 9:00 AM – 5:00 PM, and the alarm system will generally be activated outside of those hours.
b. Notwithstanding the foregoing hours of access, WWB reserves the right to close the Premises in case of emergencies such as earthquake, fire, civil unrest, public health emergencies or similar events beyond the reasonable control of WWB that may pose a safety or security risk, in the sole discretion of WWB.
c. Holiday Closures: Currently, WWB observes the holidays listed below. We will be closed to new drop-ins and existing hourly/daily/weekly/monthly members and will not provide staffing on these holidays:
i. New Year’s Day (or the following Monday if it falls on the weekend)
ii. Memorial Day
iii. Independence Day (July 4 – or the following Monday if it falls on a weekend) iv. Labor Day
v. Thanksgiving and the following day
vi. Christmas Day and the last full week of December
d. Evening/Weekend Closures: WWB reserves the right to hold special weekday events on the Premises between 6:00 PM-11:00 PM and between 6:00 AM- 9:00 AM and anytime on weekends, which may include use of the Common Spaces and hot seat areas. A minimum of 48-hour notice shall be sent to all members via the WWB Member Portal or via email should a special event restrict access to various areas of the Premises. Some events may include speakers and/or playing of music. Some of these events will be open to WWB Members, and we will notify you of that via the WWB Member Portal or via email.
e. Weekday Closures: WWB reserves the right to hold special events on the Premises during weekday business hours (9:00 AM-6:00PM) which may include use of the Common Spaces and hot seat areas. These events will occur not more than 10 days per year. Members who wish to work during an event and are precluded from using the Hot Seat room may contact WWB staff, who will endeavor to offer alternate working space, if available.
2. Common Spaces and Furnishings
Members have non-exclusive access to the Common Spaces, which include the kitchen area, bathrooms, outside patio and garden, private phone booths, and unoccupied hot seats. These Common Spaces are to be enjoyed by all our Workstation members and guests. Members agree to use these spaces in a responsible and courteous manner, to not cause any damage and to promptly remove any personal items when you are not using those spaces. Members also agree not to use, or allow their guests to use, the private phone booths for extended periods of time (which shall be defined by Workstation staff in their sole discretion) so as to keep them available for all Members.
3. Utilities
Heating and electricity for reasonably acceptable office use will be provided, as well as regular maintenance, by WWB. WWB reserves the right to charge for excess use or in the case of extraordinary increases in utility service charges upon not less than 14 days’ notice.
4. Printers/Copiers/Scanners
Your Membership category determines whether your Membership includes these services. Any services beyond what is included in the basic membership package will be charged at the then current rate for all Members, which may be adjusted from time to time.
5. Conference Rooms
There are two conference rooms available to Members on a prior reservation basis; hourly rates are as posted on the WWB website. For members with conference room credits included in their membership, unused conference room credit hours do not roll over or accrue from month to month.
a. Conference rooms are for meetings with customers, teammates, and clients only. They are not to be used by Members as a private office, a lunchroom, or other prohibited purposes as directed by WWB staff in their sole discretion.
b. If you schedule a meeting, you are responsible for cleaning up after using the conference rooms and removing any food, dishes or other items brought into the room. If you re-arrange furniture in the conference room, please return it to the original set-up when you are finished. You are responsible for ensuring that all your Guests leave Workstation immediately after the meeting (or they may purchase a Membership pass if they wish to stay longer) and the exit door is locked.
c. If you book/ use a conference room or event space for a portion of an hour you will be billed for the entire hour, unless you have made alternative arrangements with staff in advance.
6. Networking, Social and Cultural Events
WWB is intended to be a collaborative and dynamic environment that may choose to offer special events for its members to promote positive professional relationships, networking opportunities, and celebrations.
7. Internet
a. Access to the internet, as currently configured, is provided as a part of your Membership, but only during the hours when the Member has an active, paid Membership and only while the Member is physically on the Premises within the Workstation building or on the patio. Each Member receives a password that can be used across a limited number of devices, as defined by WWB staff in its sole discretion.
b. If you inform us or if we determine that you require a dedicated bandwidth connection, you may request or we may require you to upgrade to a dedicated bandwidth appropriate for your use, and you shall be solely responsible for any extra charges. This is possible at some dedicated desks that have been pre-wired for this option.
c. We will handle service interruptions in a commercially reasonable manner. d. You are responsible for protecting your own computer and data from electrical surges, theft, viruses, malware, spyware, worms and other malicious programs and theft. You agree to keep your electronic devices up to date with the latest software updates provided by the software vendor, including security software. WWB reserves the right to remove any device from our networks that we deem poses a threat to our networks or users. e. You are responsible for troubleshooting any technical issues that may arise with your own computer; our staff is not able to provide personalized IT support.
f. You may not upload files that you know, or reasonably should know, contain viruses, Trojan Horses, worms, time bombs, cancelbots, corrupted files, or any other type of software program that may damage the operation of another’s computer or property of another.
g. You may not download any file(s) that you know, or reasonably should know, cannot be legally reproduced, displayed, performed and/or distributed in such a manner or is contaminated in such a way that you would be prohibited from uploading it.
h. You may not access any websites that you know, or reasonably should know, contain illegal content, video or information. Workstation provides internet service to its members but is not responsible for website access or content. Every Member is responsible for their own use of the internet.
i. You agree not to resell any aspect of the internet access, whether for profit or otherwise, share your IP address or ISP Internet connection with anyone, or authorize any other individual or entity to use the Internet access.
8. Mail
a. Members with a dedicated desk membership may use the address of Workstation (2247 Sixth St., Berkeley, CA 94710) for receiving a reasonable amount of mail (currently defined as up to 50 envelopes and 6 small packages per month) during regular business hours (9-5, Monday through Friday). WWB reserves the right to modify the definition of what is a “reasonable” amount of mail from time to time, in its sole discretion, and will provide at least 14 days advance written notice to any Members using this service.
b. If you receive larger volumes of mail than we are prepared to handle, we may ask that you make special arrangements with us that involve an additional fee.
c. We won’t receive any furniture, or large or bulky equipment or packages on your behalf unless you secure our specific written permission in advance. We reserve the right to decline to provide this service.
d. It is your responsibility to check with the WWB staff to ask if you have mail. Except as expressly provided in this Agreement, we will hold your mail for only three (3) weeks and may, in our sole discretion, dispose of it after that. If you want us to hold your mail longer or want to receive a larger package and we agree, you must make prior arrangements in writing.
e. WWB is not responsible for keeping track of any packages received without a WWB staff signature indicating they accepted delivery.
9. Use of Kitchen and Beverages
a. Members have non-exclusive use of the kitchen and are welcome to complimentary beverages which include coffee, tea and filtered water for personal use by Members while using the Workstation.
b. Premium beverages (those in the refrigerated case) are provided in accordance with the
rules as currently posted in the kitchen. Members shall comply with the rules and pay for extra drinks as applicable in cash or via Venmo.
c. Members are responsible for rinsing any mugs or glassware provided by WWB that they use and placing them in the dishwasher. If Members bring any other food service items, they are responsible for promptly cleaning and removing them from the Premises.
d. Members are expected to be respectful of others in their use of common areas and the kitchen by keeping them neat and clean and removing any personal belongings. Please leave the kitchen as clean as you found it. You’re welcome to leave it cleaner!
e. Abuse of the kitchen and beverages policies may result in a fine and/or termination of this Agreement, at the sole discretion of WWB.
10. Parking for Bicycle and Small Rolling Devices
a. A limited amount of bicycle parking is available free to Members in the designated bicycle storage area on a first-come, first-served basis.
b. Smaller rolling devices (like skateboards, scooters) must be kept in your space at Workstation and out of walkways and aisles or anywhere else where they may become a hazard.
c. You may not use bikes, skateboards, scooters, roller skates, or rollerblades within Workstation premises.
d. WWB reserves the right to limit the number and type of rolling devices permitted on the Premises.
11. Guests - Any Members who have reserved a Conference Room may have Guests at no additional charge in the Conference Room during their reserved time, up to the permitted capacity of that room.
G. Creating a Productive Space at Workstation West Berkeley: Our goal is to create a productive, interactive, positive office environment to foster the success of our Members. Respect for others is fundamental to our community and we expect you to help maintain that spirit. We expect you to refrain from doing things that are incompatible with these objectives. Toward that end, by becoming a Member you agree to the following:
1. You are responsible for your actions and conduct and those of your Guests including, without limitation, any damage you or your Guests cause to WWB’s or any other person’s property or any injury you or your Guests sustain or cause to any person. You will reimburse us or the injured person for any damage or injury you may cause.
2. All Members and Guests must be at least 18 years of age; no children are permitted unless authorized by WWB staff in advance.
3. You and your Guests agree to comply with all the terms and conditions set forth in this Agreement, as they may be amended from time to time.
4. You are responsible for promptly notifying WWB staff in writing of any change to your contact and/or payment information. You will do your part to keep Workstation in a clean, neat and attractive condition at all times. Do not leave personal property lying around that is unsightly or valuable. If you do, we may ask you to remove them. You agree to be responsible for any damage that you cause to any part of the Premises exceeding normal wear and tear.
5. Members are not permitted to bring animals or pets on the Premises other than registered service dogs or as otherwise required by law.
6. If you want to use our logo in any way, you must get our prior written agreement and we have the right to approve or deny such use in our sole and absolute discretion.
7. Members warrant that neither they nor their Guests will do any of the following:
a. Copy or use intellectual property or proprietary information, trademarks, logos or similar identifiers belonging to another Member or WWB during their membership or anytime thereafter, without their prior written consent.
b. Conduct any illegal or inappropriate activities on WWB premises, including, without limitation, solicitations, selling goods or services at retail in or from Workstation without prior written consent.
c. Do or cause anything that may reasonably be disruptive, offensive or dangerous to WWB staff, Members or other people who use the premises.
d. Bring weapons of any kind or any other dangerous, flammable or explosive materials onto the premises.
e. Conduct business at WWB that involves visits by members of the public.
f. Place any locks on office doors or desks, or anywhere else on the premises, without getting prior written permission from WWB.
g. Make use of our mail service for illegal or fraudulent purposes, and WWB shall not be liable for any such activities.
h. Violate the access rules, including using the Premises beyond the permitted hours for a regular Membership (unless you have an Extended Hours membership), or using the patio/garden outside permitted hours of 9 am – 5 pm (applicable to all members, including Extended Hours members).
i. Share their Kisi electronic access, physical keys or other means of access to the Premises with individuals who are not Members or authorized guests, or allow any third party to use such means of access, without prior authorization from WWB.
j. Smoke tobacco, vape, or consume or bring marijuana or any drug prohibited by law onto
the Premises, or consume or bring any alcohol onto the Premises without prior consent from WWB or in a way that may interfere with other Members, as determined by WWB staff in their sole discretion.
k. Bore into, make holes, or attach things to the walls without first getting our written permission.
l. Cut wires for any reason.
m. Sleep or reside at WWB.
n. Use WWB or our services in connection with contests, scavenger hunts, pyramid schemes, chain letters, junk email, spamming or any unsolicited message campaign (commercial or otherwise).
o. Create a false identity or misrepresent yourself to others.
p. Use any method of heating or air conditioning other than what we provide, without express written permission in advance.
q. Use designated private phone booths as a place for regular everyday work - they are reserved for limited time phone meetings, so as to keep them available to all Members. Abuse of this policy is grounds for termination of your Membership, at WWB‘s sole discretion.
r. Make use of the WWB wifi outside of the hours when the Member has an active, paid Membership, or when the Member is not physically on the Premises within the Workstation building or on the patio. Guests may only access wifi within a conference room during the time the room is reserved by the Member.
8. Members agree to comply with any additional policies or protocols WWB staff may implement to address the health, safety, or comfort of members including, but not limited to, COVID
protocols.
H. General Provisions and WWB Reserved Rights
1. Notices: Notices from WWB to Licensee and/or Designated Members shall be sent to the email address provided when you initiated your Membership (and Licensee will immediately advise WWB of any change in their email or other contact information). Notices from Licensee to WWB shall be sent to the WWB main email: workstationwb@gmail.com
2. We have placed cameras in the common areas for use as a security measure. Any alteration, modification, damage to or destruction thereof by the Licensee, Additional Members or any of their Guests shall be deemed a breach of this Agreement.
3. We may relocate electrical, internet or wi-fi services as needed to serve the needs of WWB or other occupants of the Premises.
4. We may access your office or desk space, with or without notice for maintenance, safety or emergency purposes.
5. With the exception of Private offices, we may move or alter desks and other furniture on our Premises.
6. We may have events, typically after normal business hours or on weekends, that require hot seats and designated desks and furniture in Common Spaces to be temporarily moved. We will give you at least 48 hours’ prior notice if this may affect your desk.
7. Modification: We may modify these General Terms and Conditions or modify or reduce the list of services at our discretion at any time but will give you 5 business days’ notice via the WWB Member Portal or via email.
8. We are committed to conserving energy, so we may not operate heating or ventilation systems during off hours, weekends or holidays unless prior arrangements have been made.
9. Our rates may change from time to time, but we will give you at least 14 days‘ notice via the WWB Member Portal or email before the rate change.
10. Privacy Policy: We will not share your information with other people except as needed to process your membership agreement and payments, or as required by law, regulation or legal process. We may request to share information about your work with other WWB members for the networking purposes or promotional material but will only do so with your prior approval.
11. Member interaction: We do not control and are not responsible for the actions of the other Members, Guests or any other user of the services or Premises. If a dispute arises between Members, or other users or their Guests, we have no responsibility or obligation to
participate, mediate or indemnify any party. And Licensee agrees to indemnify, defend and hold WWB harmless from and against any and all claims related thereto.
12. Events: If you would like to hold an event at WWB, please talk to staff to discuss scheduling, guest policy, insurance requirements, fees and terms and conditions. This License Agreement does not include the right to hold events on the Premises; these are subject to the event fees posted on the WWB website.
13. Security: The security of the Workstation and all our Members and Guests is of the highest
priority. Your cooperation and participation are important to maintain that security.
a. You are responsible for protecting WWB and your own personal property from theft, robbery and pilferage.
b. Don’t let anyone into WWB who is not a Member or a Guest. If you are unsure, direct that person to WWB staff immediately. Be alert for “tail-gaiting”- as you enter or leave the building, don’t let anyone else walk in who does not have their own authorized access. After normal business hours or on weekends, don’t let anyone in if you are uncertain whether they are authorized.
c. If you lose a key/keycard, you must inform us immediately. We will disable what you lost and issue you a new one, for a fee.
d. We will investigate any suspected break-in, theft or breach of security, including information technology, systems or networks and any suspected criminal activity that comes to our attention. In doing so, we may involve and cooperate with law enforcement authorities. We may prosecute those who breach our security in any way and/or who engage in any criminal activity.
14. Prohibition on Assignment and Subletting: Licensee is prohibited from (a) assigning this Agreement or subletting or transferring or delegating its Office Space or any portion of the Premises or any of its rights and obligations under this Agreement, to any person or entity and/or (b) mortgaging, pledging or encumbering this Agreement or Licensee's interest in the Premises to any entity and/or (c) making any involuntary assignment. Any such assignment, subletting or other transfer shall be void at its inception. Licensee shall not effect a transfer, by operation of law or otherwise. No transfer shall relieve Licensee of any of its obligations under this Agreement.
15. No Liens. You shall not permit mechanics’ or other liens to be placed upon the Premises.
16. Severability: 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 and shall remain in full force and effect to the fullest extent permitted by applicable law. All provisions of this Agreement reasonably expected to survive the termination of this Agreement will do so.
17. Relationship of Parties: This Agreement gives you the benefits of the services for which you have subscribed for the term for which you have paid; but it does not create any interests of any kind in the Premises or business of WWB. You acknowledge and agree: that this Agreement is not a lease or rental agreement, and our relationship doesn’t make you a tenant or us a landlord, nor does it make you our partner or a partner in the business of another co worker. That it doesn’t give you any rights of possession of any kind, rights in our business or the business of another co-worker, rights to any of our intellectual property or that of any other co-worker. That we are not your employer and you are not our employee or partner,, and we do not have any fiduciary duty to you. The parties to this Agreement are independent contractors in the performance of their obligations hereunder.
18. Broker/Realtor: You warrant that you have not retained a broker or realtor in connection with this WWB membership, and you agree to indemnify and hold WWB and Creative Arts Gallery, LLC harmless from any and all claims arising from a breach of this provision.
I. Indemnity and Waiver of Claims
To the fullest extent permitted by law, Licensee and its Designated Members hereby waive all claims against and releases WWB and its trustees, members, principals, beneficiaries, partners, officers, directors, employees, managers, mortgagees and agents (the “WWB Related Parties”) from all claims for any injury to or death of persons, damage to property or business loss in any manner related to (a) Force Majeure, (b) acts of third parties, (c) the bursting or leaking of any tank, water closet, drain or
other pipe, (d) the inadequacy or failure of any security services, personnel or equipment, if any, (e) any COVID 19 or other pandemic or disease related matters or (f) any matter that is not an express WWB obligation under this Agreement. Except to the extent caused by the gross negligence or willful misconduct of WWB, Licensee shall indemnify, defend and hold WWB and WWB Related Parties harmless against and from all liabilities, obligations, demands, damages (including, without limitation, consequential damages), penalties, claims, actions, losses (including economic losses) costs, charges and expenses, including reasonable attorneys’ fees and other professional fees (collectively referred to as “Losses”), which may be imposed upon, incurred by WWB, or asserted against WWB or any of the WWB Related Parties by any third party, and arising out of or in connection with: (i) any damage or injury occurring in or about the Premises; (ii) any acts or omissions (including violations of Law) of Licensee, or any of its Designated Members, employees, Guests, invitees and/or contractors (collectively the “Licensee Related Parties”); (iii) the use or occupancy or manner of use or occupancy of the Premises, by Licensee and any Licensee Related Parties; (iv) any act, error, omission or negligence Licensee and/or any Licensee Related Parties in, on or about Premises; (v) any breach or default in the performance of any obligation on the part of Licensee and/or any Licensee Related Parties to be performed under the Agreement; and (vi) any alterations of the Premises performed by Licensee and/or any Licensee Related Parties. The provisions of this section shall survive the termination or expiration of this Agreement until such time as they are absolutely barred by the applicable statutes of limitations.
J. Events of Default
1. Except as expressly provided herein, each of the following occurrences shall be a “Default”: (a) Licensee’s failure to pay any portion of the Membership Fee or any other Fee when due, if the failure continues for three (3) business days after written notice to Licensee (“Monetary Default”); (b) Licensee’s failure (other than a Monetary Default) to comply with any term, provision, condition or covenant of this Agreement, if the failure is not cured within ten (10) days after written notice to Licensee provided, however, if Licensee’s failure to comply cannot reasonably be cured within 10 days, Licensee shall be allowed additional time (not to exceed 30 days) as is reasonably necessary to cure the failure so long as Licensee begins the cure within 10 days and diligently pursues the cure to completion; (c) Licensee becomes insolvent, makes a transfer in fraud of creditors, makes an assignment for the benefit of creditors, admits in writing its inability to pay its debts when due or forfeits or loses its right to conduct business, e.g., the appointment of a receiver; (d) the License and/or membership rights hereunder are taken by process or operation of Law; (e) the filing of any voluntary petition in bankruptcy by Licensee, or the filing of an involuntary petition by Licensee’s creditors, which involuntary petition remains undischarged for a period of thirty (30) days; or (f) the attachment, execution or other judicial seizure of all or substantially all of Licensee’s assets or the Premises, if such attachment or other seizure remains undismissed or undischarged for a period of ten (10) business days after the levy thereof.
2. If WWB provides Licensee with notice of Licensee’s failure to comply with any specific provision of this Agreement on two (2) separate occasions during any twelve (12) month period, Licensee’s subsequent violation of such provision shall, at WWB’s option, be an incurable Default by Licensee. All notices sent under this section shall be in satisfaction of, and not in addition to, notice required by Law.
K. Remedies
1. Upon the occurrence of any Default under this Agreement, whether enumerated in Events of Default above or not, WWB shall have the option to pursue any one or more of the following remedies without any notice (except as expressly prescribed herein) or demand whatsoever (and without limiting the generality of the foregoing, Licensee hereby specifically waives any and all other notices or demand requirements imposed by applicable law):
a. Terminate the License and this Agreement and recover from Licensee an award of damages equal to the sum of the following:
(i) The worth at the time of award of the unpaid Fees which had been earned at the time of termination;
(ii) The worth at the time of award of the amount by which the unpaid Fees which would have been earned after termination until the time of award exceeds the amount of such Membership fees loss that Licensee affirmatively proves could have been reasonably avoided;
(iii) The Worth at the Time of Award of the amount by which the unpaid Fees for the balance of the Term after the time of award exceeds the amount of such Fee loss that Licensee affirmatively proves could be reasonably avoided;
(iv) Any other amount necessary to compensate WWB for all the detriment either proximately caused by Licensee's failure to perform Licensee's obligations
under this Agreement or which in the ordinary course of things would be likely to result therefrom; and
(v) All such other amounts in addition to or in lieu of the foregoing as may be
permitted from time to time under applicable law.
The "Worth at the Time of Award" of the amounts referred to in parts (i) and (ii) above, shall be computed by allowing interest at the lesser of a per annum rate equal to: (A)the greatest per annum rate of interest permitted from time to time under applicable law, or (B)the Prime Rate plus 5%. For purposes hereof, the “Prime Rate” shall be the per annum interest rate publicly announced as its prime or base rate by a federally insured bank selected by WWB in the State of California. The "Worth at the Time of Award" of
the amount referred to in part (iii), above, shall be computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus 1%; or
b. WWB may continue this Agreement in effect after Licensee's breach and abandonment and recover the unpaid Fee or Fees as it/they becomes due, if Licensee has the right to sublet or assign, subject only to reasonable limitations).
2. The subsequent acceptance of Fees hereunder by WWB shall not be deemed to be a waiver of any preceding breach by Licensee of any term, covenant or condition of this Agreement, other than the failure of Licensee to pay the particular Fees so accepted, regardless of WWB's knowledge of such preceding breach at the time of acceptance of such Fees. No waiver by WWB of any breach hereof shall be effective unless such waiver is in writing and signed by WWB.
3. LICENSEE HEREBY WAIVES ANY AND ALL RIGHTS CONFERRED BY SECTION 3275 OF THE CIVIL CODE OF CALIFORNIA AND BY SECTIONS 1174 (c) AND 1179 OF THE CODE OF CIVIL PROCEDURE OF CALIFORNIA AND ANY AND ALL OTHER LAWS AND RULES OF LAW FROM TIME TO TIME IN EFFECT DURING THE AGREEMENT TERM PROVIDING THAT LICENSEE SHALL HAVE ANY RIGHT TO REDEEM, REINSTATE OR RESTORE THIS AGREEMENT FOLLOWING ITS TERMINATION BY REASON OF LICENSEE'S BREACH. LICENSEE ALSO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY LITIGATION ARISING OUT OF OR RELATING TO THIS AGREEMENT.
4. No right or remedy herein conferred upon or reserved to WWB is intended to be exclusive of any other right or remedy, and each and every right and remedy shall be cumulative and in addition to any other right or remedy given hereunder or now or hereafter existing by agreement, applicable law or in equity. In addition to other remedies provided in this Agreement, WWB shall be entitled, to the extent permitted by applicable law, to injunctive relief, or to a decree compelling performance of any of the covenants, agreements, conditions or provisions of this Agreement, or to any other remedy allowed to WWB at law or in equity. Forbearance by WWB to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default.
5. If Licensee is in Default of any of its non-monetary obligations under the Agreement, WWB shall have the right to perform such obligations. Licensee shall reimburse WWB for the cost of such performance upon demand together with an administrative charge equal to 10% of the cost of the work performed by WWB.
6. This Section I “Remedies” shall be enforceable to the maximum extent such enforcement is not prohibited by applicable law, and the unenforceability of any portion thereof shall not thereby render unenforceable any other portion.
L. Resolution of Disputes
1. This Agreement shall be governed by the laws of the state of California and Alameda County superior court is the sole venue, regardless of conflicts of laws.
2. Resolution of Disputes: You and we agree to make a good faith effort to resolve any disputes we may have with each other in a collaborative manner.
3. If you and we cannot resolve a dispute by sitting down and talking to each other, you and we will try to resolve the dispute by mediation in the JAMS San Francisco office or with a reputable private, independent mediator or mediation service as you and we may agree. You and we may propose one or more proposed mediators to the other party with experience appropriate for the nature of the dispute. If you and we can’t agree on a mediator, we will ask JAMS to appoint one.
a. If we are unable to successfully resolve the dispute in mediation, you and we agree to submit the dispute to binding arbitration in the JAMS San Francisco office or to any other reputable private, independent arbitrator or arbitration service as the parties hereto may agree. You and we may propose one or more proposed arbitrators to the other party with experience appropriate for the nature of the dispute. If you and we can’t agree on an arbitrator, we will ask JAMS to appoint one.
b. The outcome of the arbitration shall be binding on you and we and neither party shall commence or pursue litigation in a court of law against the other.
c. You agree that any dispute you may have with us that may go to mediation or arbitration will be yours alone and not with or on behalf of any employee, guest, invitee or other third party of any kind. If either you or we obtain legal counsel in regard to a dispute you or we may have, you and we agree that each party shall be responsible for and pay their own
attorney’s fees, costs and expenses, regardless of the outcome of such matter. If you do not agree with this, you should not enter into this Agreement.
4. You agree not to assert any claims against us that exceed an amount equal to one month’s Membership Fee you have paid to us unless you have a reasonable claim that your loss is due to our gross negligence or willful misconduct.
5. Neither you nor we will seek to have any dispute heard as a class action or combined with another proceeding without prior written consent of all parties to the affected proceedings or participate in any claims brought by in a private attorney general or representative capacity.
M. Entire Agreement: This Agreement constitutes the entire agreement between the parties relating to use of WWB and shall not be changed in any manner except by written agreement signed by both parties, except as otherwise permitted herein. Any prior agreements between the parties regarding this subject matter are deemed merged into this Agreement.
N. Waiver of Rule of Construction: Licensee and WWB waive the benefit of any rule that this Agreement is to be construed strictly against one party or the other.
By completing this booking you acknowledge the following:
o You have read all the provisions of this Agreement and agree to them.
o You are duly authorized to enter into and sign this Membership Agreement, without any consents or approvals and that by so doing this Agreement will be binding on and enforceable against you.
o You acknowledge that you have inspected the premises (or have waived the right to inspect) and have found them, or otherwise accept them as being in good condition and repair, clean, and in operable condition, and accept them in their as-is condition. .
o You have obtained all necessary consents and approvals to be a Licensee and by doing so are not or will not be (through the delivery of notice or passage of time) in violation of any other agreements, contracts or understandings to which you may be a party.