Terms and conditions
General Terms and Conditions
These Membership Terms and Conditions are incorporated into and made part of the Agreement entered into by and between Ernest and Member. Capitalized terms not otherwise defined herein have the meanings ascribed to them on the signature page to the Agreement (the “Signature Page”).
1. SPACE AND SERVICES
(a) Suite. Subject to these terms and conditions and timely payment of all applicable fees set forth herein, Ernest will permit the Member to access and to use the Suite, located at the property, building, or space owned, leased, or otherwise controlled by Ernest at the Ernest Location (the “Premises”).
(b) Start Date. Ernest will use commercially reasonable efforts to make the Suite available to Member as of the License Start Date set forth on the Signature Page, provided that if the Suite is not available to Member on the License Start Date as set forth on the Signature Page, the date of the License Start Date shall be automatically amended to be the date the Member actually receives access to the Suite. Ernest reserves the right upon thirty (30) days’ notice in writing, to relocate, reduce or increase the size, number, or configuration of the Suite from time to time, in which case the applicable fees will be proportionately reduced or increased, as determined at Ernest’s sole discretion; provided that any increase in the fees set forth on the Signature Page shall require Member’s prior written consent. Ernest will provide the Member with reasonable advance written notice should changes to the License Start Date be necessary.
(c) Services. Subject to the terms and conditions of the Agreement, during the Term, Ernest will use commercially reasonable efforts to provide certain services (collectively, the “Services”) to the Member. The Services shall include: (1) exclusive access to the Suite during operating hours, including the standard power outlets therein; (2) non-exclusive access to and use of common area restrooms and a common area kitchen within the Premises; (3) heating and air-conditioning; (4) limited access to and use of the conference rooms and/or photo studio on the Premises, subject to availability and reservation requirements set forth in the Membership Handbook; (5) access to and use of shared internet connection and printers/scanners; and (6) other services as may be described in the Membership Handbook provided to Member. Any or all of the Services may be provided by Ernest, an affiliate of Ernest, or any third-party service provider designated by Ernest from time to time at its sole discretion. All Services that may be provided by or on behalf of Ernest may be added, deleted, or changed at any time at the sole discretion of Ernest, with or without prior notice to Member.
(d) Business Hours. Business hours for the Premises may vary by location—the hours of operation in effect will be posted at the Premises or otherwise made available to Member (the “Operating Hours”). Ernest reserves the right to close the Premises on national holidays and on days with inclement weather at the discretion of Ernest. Availability of Services shall be as set forth in the Membership Handbook. The Premises may be accessible outside of Operating Hours using the key card assigned to Member, in accordance with the procedures set forth in the Membership Handbook or other policy documents applicable to the Premises.
(e) Software. In order to receive certain Services (including but not limited to access to the network, shared printing, etc.), Member may be required to install on Member’s computer or electronic device certain drivers or software tools (collectively, “Software”). Member acknowledges and agrees that Software may be owned, controlled, or provided by third parties, and that the installation or use of any Software may be subject to separate licenses, terms, conditions, or restrictions. Ernest provides no warranties with respect to the Software (even if provided by or through Ernest), and as a condition of use of the Software, Member, on behalf of itself and its employees, agents, and invitees, waives any claim against Ernest, its affiliates, and any person acting on behalf of Ernest or its affiliates arising from or in conjunction with the installation or use of such Software.
(f) Maintenance. Ernest will use commercially reasonable efforts to maintain the Premises in good functional condition; provided that Member is and will remain responsible for, and will indemnify, defend and hold harmless Ernest and its affiliates for any and all damage to the Suite, Premises and/or the building in which the Premises is located, exceeding normal wear and tear, caused by Member or its agents, employees and invitees, and for the acts and omissions of Member and its employees, agents, or invitees.
(g) Access to Machinery. Ernest may, but is not required to, make available dollies, pallet jacks, and similar machinery for the use by Members for daily operations. Such equipment and machinery shall be available on a first come, first serve basis. Access to such machinery is subject to the policies, procedures, and codes of conduct set forth in the Membership Handbook. There is no charge for Member’s use of this machinery, so long as it does not exceed the limits stated in the Membership Agreement. Use of forklifts or other heavy machinery, is restricted to Ernest employees only and subject to additional fees, as described in the Membership Handbook.
(h) Ernest Access. Member acknowledges that Ernest and its designees will at all times have access to the Suite, upon at least twenty-four (24) hours’ notice to Member (except in case of an emergency, which shall be determined at Ernest’s sole discretion, and for routine janitorial or similar access), for purposes including but not limited to the maintenance and safety of the same and any emergency situations. Ernest may temporarily move and/or replace parts and components of the Suite at Ernest’s sole discretion. Notwithstanding the foregoing, except in the case of emergency, Ernest will use commercially reasonable efforts not to disrupt Member’s business in or use of the Suite. Ernest may modify or reduce the list of Services or furnishings provided for the Suite at any time.
(i) License Only. Notwithstanding anything herein to the contrary, this Agreement is a revocable license to access the Suite and receive certain Services, upon the terms and conditions set forth herein. The relationship between Ernest and Member is that of a licensor and licensee only, and not a landlord-tenant or lessor-lessee relationship. This Agreement will not be construed to grant Member any right, title, interest, easement, or lien in or to Ernest’s business, the Suite, the Premises, or anything contained therein, nor will this Agreement be interpreted or construed as a lease. Member acknowledges and agrees that this Agreement creates no tenancy interest, leasehold estate, or other real property interest in Member’s favor and Member hereby waives any and all claims and/or defenses based upon any such interest. For clarification see Section 7(f) which in effect states that no partnership, joint venture, agency, or business relationship is created by virtue of the License.
(j) Credits; Overage Fees. Based on Member’s Suite selection, each month, Member will receive a certain number of credits for conference room and/or photo studio use, as specified in the Membership Handbook. Credits may not be rolled over from month to month. If these allocated amounts are exceeded, you will be responsible for paying fees for such overages as set forth in the Membership Handbook. All fees are subject to increase from time to time.
2. TERM AND TERMINATION OF AGREEMENT
(a) Term. The Term of this Agreement is as set forth on the Signature Page.
(b) Termination for Breach. Ernest may terminate this Agreement at its sole discretion, effective immediately if Member or any of its agents, employees, or invitees breaches any provision in this Agreement or violates any Ernest rules, policies, or codes of conduct, including those set forth in the Membership Handbook. Provided that, if Member fails to pay any fee when due, if it is Member’s first delinquency in any twelve (12)-month period, Ernest will send Member written notice of the delinquency, and Member will have five (5) days from the date of such notice to cure the delinquency by paying all amounts owed (including late fees and finance charges, as applicable). Member is only entitled to one notice and cure period per twelve (12)-month period, and for any subsequent delinquency Ernest may terminate Member’s license and membership immediately, at Ernest’s sole discretion.
(c) Termination for Convenience. Ernest may terminate this Agreement (i) immediately in the event that Ernest’s rights in the Premises terminate or expire for any reason; or (ii) upon thirty (30) days’ written notice to Member at Ernest’s sole and absolute discretion.
(d) Removal of Property upon Termination. On or prior to the termination or expiration of this Agreement, Member will remove all of its property from the Suite and Premises, it being understood and agreed that Member has no right to continue to use and/or access the Suite or any Services after the expiration or termination of this Agreement. In addition to any other rights and remedies Ernest has hereunder, subject to applicable laws and regulations, Ernest will be entitled to remove and dispose of any of such property remaining in or at the Suite or the Premises after the termination of this Agreement, without notice to Member (whether belonging to Member or its employees, agents, or invitees), and Member waives any claims or demands regarding such property. Following the termination or expiration of this Agreement, Ernest will not forward or hold mail or other packages delivered to the Premises on behalf of the Member.
(e) Effect of Termination. Following the termination or expiration of this Agreement for any reason, Member will remain liable for all amounts due or owing as of the effective date of such termination or expiration. Without limiting the foregoing, if this Agreement is terminated for breach pursuant to Section 2(b) above, Member will remain liable for all License Fees owed through the remainder of the Term, and such License Fees will be due and payable immediately upon such termination. In the event this Agreement is terminated for convenience pursuant to Section 2(c) above, Ernest will within a reasonable time following the effective date of the termination return to Member any pre-paid License Fees or other fees applicable to the post-termination period. This Section 2 and Sections 4 through 7 of this Agreement will survive the termination or expiration of this Agreement for any reason, as will all other provisions of this Agreement that may be reasonably expected to survive such termination or expiration.
(a) License Fees. Beginning on the License Start Date, and continuing during the Term of this Agreement, Member will pay, in advance, the monthly license fee specified on the Signature Page (“License Fee”) via the online payment system provided by Ernest or as otherwise directed by Ernest. The License Fee is due on or before the 1st of each month during the Term, provided that if the License Start Date falls on a date that is not the 1st day of the month, then on the License Start Date Member will pay the pro rata portion of the monthly License Fee for the remainder of that month. All License Fees must be paid in U.S. dollars in the form as requested by Ernest. All amounts paid under this Agreement are nonrefundable and noncancelable, except as expressly provided herein. When Ernest receives funds from Member, such funds will be applied first to any past-due balances, oldest to newest, then second to the then current monthly fees due and owing.
(b) Other Fees. Credit card transactions are subject to a 3.5% surcharge to cover Ernest’s cost to accept and process credit card transactions. A ten percent (10%) late fee will be charged on any outstanding balance existing on the 5th day after the due date of such fee. Additionally, Member may be subject to additional fees or penalties for late payments, returned checks, or other declined payments due to insufficient funds, as set forth in fee schedules published or posted by Ernest from time to time. Member acknowledges that all fees are subject to change from time to time at the discretion of Ernest. Any late fees, charges and penalties are in addition to any other rights and remedies Ernest may have for Member’s breach of this Agreement.
(c) Security Deposit. The Security Deposit must be paid in the amount and at the time set forth on the Signature Page. The Security Deposit will be refunded to Member within forty-five (45) days after termination of this Agreement, subject to provisions set forth herein and to the complete satisfaction of Member’s obligations under this Agreement, as determined by Ernest at its sole discretion, including paying any outstanding fees owed to Ernest hereunder. The Security Deposit will be held by Ernest, without liability for interest, as security for the performance by Member of Member’s covenants and obligations under this Agreement. Member acknowledges and agrees that the Security Deposit will not be considered an advance payment of the License Fee or a measure of Member’s liability for damages in case of default by Member. Ernest may, from time to time, including after termination or expiration of the Agreement, and without prejudice to any other remedy, use the Security Deposit to the extent necessary to make good any arrearages of the License Fee or to satisfy any other covenant or obligation of Member hereunder. Following any such application of the Security Deposit during the Term, Member will pay to Ernest on demand the amount so applied in order to restore the Security Deposit to its original amount. To the extent of any unapplied Security Deposit after the termination of this Agreement, Ernest will only refund the same to Member, unless an authorized representative of Member directs Ernest in writing to send the refund to another person or location. If during the Term of this Agreement, Member changes the Suite to one(s) carrying higher License Fees, Member acknowledges and agrees that Member will deliver to Ernest the incremental increase in the Security Deposit as required by Ernest.
(d) Suspension of Services. Ernest may withhold or suspend any Services and/or access to the Suite and the Premises while there are any outstanding amounts due or Member is otherwise in breach of this Agreement, in addition to any other rights and remedies Ernest may have.
(e) No Refunds. There are no refunds of any fees or other amounts paid by Member or its employees or agents in connection with the Services.
4. MEMBER OBLIGATIONS
(a) Background Checks. Ernest reserves the right to conduct a basic criminal and OFAC background check on any or all of Member’s owners, officers, employees, and agents who will be granted access to the Premises (particularly if Member desires after-hours access for such persons), and Member agrees to use good faith efforts to assist Ernest with the same, at no cost of Member. After-hours access may only be granted to those persons who pass such background check to Ernest’s sole and absolute satisfaction. Member represents and warrants that neither Member, nor any of its owners, officers, employees or agents has been or will be: (a) designated as a “blocked person” as such term is described in Executive Order 13224, issued September 23, 2001 by George W. Bush, President of the United States; or (b) a person or entity described either as a Specially Designated Global Terrorist or a Specially Designated Nationals and Blocked Persons by the Office of Foreign Assets Control (“OFAC”) of the U.S. Department of the Treasury. The continued accuracy throughout the Term of this Agreement of the foregoing representation and warranty is an ongoing material condition to this Agreement and, accordingly, Member has the obligation during the Term to immediately notify Ernest by written notice if the foregoing representation and warranty should ever become false. Any breach of the representation and warranty or failure on the part of Member to so update Ernest constitutes a breach of this Agreement.
(b) Security. Member acknowledges that all keys, key cards, key fobs, and other such items used to gain physical access to the building, Premises and/or the Suite remain the property of Ernest, or its landlord or the owner of the Premises (as applicable, “Landlord”). Member will not attempt to (or allow others to) gain unauthorized access to any computer systems located at or serving the Premises or any content or data of Ernest, other members, or any other person. Neither Member nor any of its agents, employees or invitees are permitted to enter any other Suite in the Premises. Member will use its best efforts to safeguard the Premises and Ernest’s property and will be liable for all costs and expenses should any such property be lost, stolen, or damaged as a result of Member’s and/or its employees, agents or invitees acts or omissions. Member is solely responsible for maintaining all necessary security and control of any and all usernames, passwords, or any other credentials issued to or used by Member or its employees, agents or invitees, for use with Ernest’s computer systems, networks, or other Services provided under this Agreement. Member will not allow (and will instruct its employees and agents to not allow) a party unknown to them to enter the Suite or the Premises and acknowledges that such action may result in the termination of this Agreement. Member is and will remain responsible for the actions or omissions of all persons that Member or its employees, agents or invitees allow or invite to enter the Suite or the Premises.
(c) Complaints. Member agrees that all issues and complaints relating to the Suite or other members will be directed solely to Ernest. Member will have no direct access to or communication with the Landlord (if other than Ernest), and Member agrees not to send any complaints or demands to the Landlord directly.
(e) Rules and Policies. Additional rules may be set forth in the Membership Handbook or other policy documents applicable to each Ernest location, which are subject to change from time to time at Ernest’s sole discretion from time to time, whether communicated to Member verbally, by email, other written notice, or public posting. Member acknowledges receipt of such rules and policies and agrees to abide by such rules and policies at all times. Without limiting the foregoing, each Member and each of its owners, officers, employees, agents, and invitees who will be granted access to the Premises are required to agree to and sign Ernest’s Anti-Harassment Policy prior to accessing using the Suite or Services.
(f) Prohibited Conduct. In addition to any other applicable rules and policies issued by Ernest, Member agrees to the following terms and conditions:
(g) No Assignment or Sublicense. Member may not sell, lease, license, distribute or grant any interest in the Suite or any of the Services to any third party. Further, Member may not assign this Agreement in whole or in part, or otherwise transfer, sublicense or otherwise delegate any of Member’s rights or obligations under this Agreement, to any third party. If a Member is an entity, any change in ownership in excess of 20%, or control of Member beyond those deemed Designees under Section 4(n), requires prior written consent of Ernest.
(h) No Alterations. Member may not alter the Suite or Premises in any manner or attach or affix any items to the walls, floors, or windows, without the prior written consent of Ernest.
(i) No Unapproved Items. Member may not store any of its property or materials in any area of the Premises, except the Suite. Member may not bring any additional furniture, furnishings or decorations into the Premises or Suite or install any satellite or microwave antennas, dishes, cabling or telecommunications lines in the Premises or Suite without the prior written consent of Ernest at its sole discretion. Member acknowledges that carts, dollies and other freight items may not be used in any passenger elevator except by appointment made with Ernest, which may be approved at Ernest’s sole discretion.
(j) No Retail Use. Member will use the Office Space, if any, solely as general office space and the Warehouse Space, if any, as general warehouse space, each in the conduct of Member’s business and for no other use whatsoever. Use of the Space for retail, medical or other type of business involving frequent visits by members of the public is not permitted. Regular use of the Space is limited to the Member’s designees subject to background checks as set forth in this Agreement.
(k) No Illegal Activities. Member may not use the Premises, Suite, or any Services to conduct or pursue any illegal activities or comport themselves to the other members or the community at large in a similar manner. Member may not use the Premises, any Services, or any Ernest computer systems or networks to conduct or pursue any illegal activities, including but not limited to, creation, growth, warehousing, or distribution of illegal drugs, chemicals, pharmaceuticals, or related paraphernalia, downloading, distributing or viewing any illegal content, engaging in any activity in violation of OFAC regulations, and/or illegally downloading any copyrighted content, or any other activity that violates any intellectual property rights, and any such conduct using the Premises or Ernest’s systems or networks may result in immediate termination of this Agreement. For the sake of clarity, the restrictions and restrictive covenants set forth in the subsection apply to require permits or approvals from governmental authorities where Member has not applied for or received such permit or approval.
(l) No Offensive Behavior. Member may not conduct any activity that is generally regarded as offensive to other people, including but not limited to, theft, involvement in hate groups or activities involving pornographic or sexually explicit materials or obscenities, whether written, oral, or in any form or medium. Member will refrain from any activities that may be disruptive, including but not limited to, acts of disorderly nature, excessive noise, or producing smoke, debris, or liquids that leaks or outflows such Member’s Suite(s). Member may not conduct any activity which may be hazardous to other persons in the building. Ernest may determine at its sole discretion what activities may be deemed offensive, disruptive, or hazardous.
(m) No Malware, Spamming. Member may not upload any files that Member knows or suspects to contain or may contain viruses, Trojan Horses, worms, time bombs, corrupted files, or any other malicious code, whether known or unknown that may damage or disrupt Ernest’s or any other person’s computer systems or networks. Member will take precautions to prevent the spread of viruses, including but not limited to, using up-to-date anti-virus software, enacting policies to avoid opening suspicious emails, and avoiding suspicious websites. Spamming other members or any other persons is strictly prohibited, and any such conduct using the Premises or Ernest’s systems, or networks may result in immediate termination of this Agreement.
(n) Member List. Member shall provide a list of those individuals that will be entitled to receive the benefits of the Services set forth herein (each a “Designee”). No individual shall have the right or be entitled to receive the benefits of the Services if such individual is not recorded as a Designee on the Member’s list with Ernest. The number of Designees that may be included on the Member’s list are as set forth in the Membership Handbook.
5. INTELLECTUAL PROPERTY AND CONFIDENTIALITY
(a) Trademarks. Member may not use Ernest’s name, logo, trademarks, service marks or domain names (collectively, “Ernest Marks”) in any way in connection with Member’s business, without the express written consent of Ernest, at its sole discretion. Member will comply with all standards established by Ernest from time to time with respect to the Ernest Marks. Member hereby acknowledges and agrees that all right, title, and interest in and to the Ernest Marks belong to Ernest, and that all usage and goodwill of the Ernest Marks will inure only to the benefit of Ernest. Member will not use, register, or attempt to register any trademarks or domain names that are confusingly similar to the Ernest Marks, nor use the Ernest Marks in any manner that would indicate that Member has any rights thereto. If consent to use the Ernest Marks is granted as set forth above, Ernest reserves the right to revoke Member’s rights to use the Ernest Marks at any time at Ernest’s sole discretion.
(b) Publicity. Member may use the address of the Suite as its business address, but only during the Term of this Agreement. Member may not use photos or illustrations of the Premises, or any Ernest Marks, in any of Member’s marketing materials or in any other manner without the express written consent of Ernest. Further, no press release, advertising, sales literature or other publicity statements relating to the existence or substance of this Agreement, or the relationship of the parties may be made by Member without the prior written approval of Ernest. Member grants Ernest and its affiliates the right to use Member’s trade name(s), logos and/or trademarks in Ernest’s materials prepared for its shareholders or members, or prospective shareholders or members.
(c) Member Directory. Ernest may place Member’s name and contact information in a directory of Ernest members; provided that Member will be given the opportunity to “opt-out” of such listing which it may do at any time.
(d) Photo and Video Shoots. Member acknowledges that promotional photography and/or video recording (a “Shoot”) may occur from time to time in the Premises, including a designated area in the Premises for such Shoots (the “Shoot Designated Area”) and excluding the Suite without Member’s prior written consent. Ernest will provide Member with reasonable advance notice of any such Shoot, and at such time Member may request that Ernest endeavor to avoid capturing Member’s name, likeness, image, voice and/or appearance in the background any such recordings. Ernest will use commercially reasonable efforts to comply with Member’s request, excluding moving the Shoot from the Shoot Designated Area. Subject to the foregoing, by entering that portion of the Premises in which a Shoot is taking place, Member and Member’s employees, agents, and invitees’ consent to such photography and/or video recording and the release, publication, exhibition or reproduction of such recordings in which they may appear for promotional purposes by Ernest and its affiliates and representatives. Subject to the foregoing, Member and its employees, agents, and invitees each hereby releases and discharges Ernest and its agents, representatives, and assignees from any and all claims and demands arising out of or in connection with the use of the name, likeness, image, voice, or appearance of Member or any of its employees, agents, or invitees, including any and all claims for invasion of privacy, right of publicity, misappropriation, misuse, and defamation. Member represents and warrants to Ernest that its employees, agents, and invitees will have been informed of and agreed to this consent, waiver of liability, and release before they enter that portion of the Premises in which a Shoot is taking place.
(e) Confidential Information. Member may receive or learn certain confidential information about Ernest or Ernest’s other members, including without limitation, information regarding its or their business operations, business and marketing plans, pricing, technology, finances, and methods (collectively, “Confidential Information”). Member agrees to hold all Confidential Information, whether belonging to Ernest or its other members, in strict confidence and to take all reasonable precautions to protect such Confidential Information. Member acknowledges that any disclosure or unauthorized use of Ernest’s Confidential Information will constitute a material breach of this Agreement and cause substantial harm to Ernest for which damages would not be a fully adequate remedy. In the event of any such breach, Ernest will have, in addition to any other available rights and remedies, the right to injunctive relief (without being required to post any bond or security). If an employee or agent of Ernest becomes aware of any Confidential Information of Member, Ernest agrees to cause such employee or agent to hold such Confidential Information in strict confidence and to take all reasonable precautions to protect such Confidential Information, except any disclosure required by law, court order or in connection with a breach of this Agreement by Member.
(a) Waiver of Claims. Member will be solely responsible for maintaining the insurance coverage required hereunder and Member will look solely to such insurance for any and all claims, damages, costs, expenses, liabilities, and rights it may have, except to the extent arising or resulting from the gross negligence or willful misconduct of an Ernest Party (defined hereunder). To the maximum extent permitted by law, Member, on its own behalf and on behalf of its owners, officers, employees, agents and invitees, hereby Waives (as defined hereunder) any and all claims, actions, damages, costs, expenses, liabilities and rights against Ernest, its affiliates, and each of its and their past, present and future principals, members, assignees, managers, directors, officers, employees, agents, successors and assigns (each an “Ernest Party” and collectively, “Ernest Parties”) arising or resulting from (i) any injury or damage to, or destruction, theft, or loss of, any tangible or intangible property located in or about the Suite, the Premises or the building in which the Premises is located, (ii) any personal injury, bodily injury or property damage (as such terms are defined by insurance regulations) occurring in or at the Suite, the Premises or the building in which the Premises is located, or (iii) any interruption or stoppage of any Service, except to the extent arising or resulting from the gross negligence or willful misconduct of an Ernest Party. For purposes of this Agreement, “affiliates” of Ernest include any person or entity that controls, is controlled by, or is under common control with Ernest, including without limitation, any subsidiaries or parent companies; and the term “Waives” means that Member, and its owners, officers, employees, agents, and invitees waive and knowingly and voluntarily assume the risk of.
(b) Disclaimer of Warranties. Ernest expressly disclaims and excludes all warranties, whether express, implied, or statutory, with respect to the Suite, the Premises and the Services provided by or on behalf of Ernest, including but not limited to, any warranty of merchantability, fitness for a particular purpose, non-infringement, habitability, or quiet enjoyment, or any warranties that may have arisen or may arise from course of performance, course of dealing or usage of trade. Ernest makes no representations or warranties regarding the quality, reliability, timeliness or security of the Suite or any Services provided by or on behalf of Ernest, or that any Services will be uninterrupted or operate error free. The Suite, Premises and Services provided by Ernest are provided “as is” and “with all faults”. Member has made its independent determination as to whether the use of the Premises meets its needs, and Ernest makes no representation that the Premises, and the Services provided, will be sufficient to meet Member’s needs.
(c) Limitation of Liability. The aggregate monetary liability of the Ernest Parties to Member, its owners, officers, employees, agents, and invitees for any reason and for all causes of action, whether in contract, in tort, or otherwise, not otherwise waived as set forth above, will not exceed the total fees paid by Member to Ernest under this Agreement during the two (2)-month period before the cause of action accrued. Notwithstanding anything herein to the contrary, in no event will any Ernest Party be liable for any claim or cause of action, whether in contract, in tort, or otherwise for any indirect, special, consequential, or punitive damages, including but not limited to, loss of profits or business interruption, even if Ernest has been advised of such damages. Member acknowledges that Ernest’s obligations under this Agreement are consideration for the foregoing limitations of liability. The limitations, waivers, disclaimers, and exclusions in this Agreement apply to the maximum extent allowed by law, even if a remedy fails its essential purpose.
(d) Limitation of Actions. To the extent not otherwise waived as set forth above, Member must commence any action, suit or proceeding against any Ernest Parties, whether in contract, tort, or otherwise, within one (1) year of the cause of action’s accrual, and Member, on its own behalf and on behalf of its owners, officers, employees, agents, and invitees, hereby Waives any claims not brought within such time period.
(e) Indemnification. Member will indemnify, defend and hold harmless each of the Ernest Parties from, and against any and all actual claims, actions, proceedings, damages, liabilities, costs and expenses of every kind, whether known or unknown, including but not limited to reasonable attorney fees (collectively, “Claim(s)”), to the extent resulting from or arising out of (i) any breach of this Agreement by Member or Member’s owners, officers, employees, agents, or invitees; or (ii) any actions, errors, omissions, negligence, willful misconduct or fraud of Member or Member’s owners, officers, employees, agents or invitees. If any such Claim is brought against any of the Ernest Parties, Member will defend the Claim at Member’s expense, upon written notice from Ernest, using counsel approved by Ernest in writing, such approval not to be unreasonably withheld. The Ernest Parties’ refusal to consent to a settlement shall not be deemed unreasonable when the proposed settlement requires or results in the Ernest Parties, or any one of them, admitting to any wrongdoing or liability.
(f) Insurance Requirements. Member, at its expense, is required to maintain at all times during the Term of this Agreement, (i) personal property insurance covering any and all personal property of Member and its owners, officers, employees, agents and invitees from time to time, within the Suite, the Premises and/or the building in which the Premises is located, (ii) commercial general liability insurance covering personal injury, bodily injury and property damage, of at minimum $1 million per occurrence (iii) business interruption insurance, and (iv) if applicable, worker’s compensation insurance as required by law, all of which insurance coverage will be in the form and amount reasonably acceptable to Ernest. All insurance policy(ies) to be carried by Member must (1) name, as additional insureds, Ernest and its Landlord(s) (including any master landlord and their respective lender(s)), or other persons with responsibility for the Premises whom Ernest may designate in writing to Member, and (2) be endorsed to waive all rights of subrogation against Ernest and its Landlord(s). Member will promptly provide proof of insurance to be carried above, and in the form required above, including without limitation, the inclusion of the required additional insureds and waivers of subrogation. Further, Member, on its own behalf and on behalf of its employees, agents and invitees, hereby waives all rights of recovery against the Ernest Parties by way of subrogation or otherwise. If Member fails to maintain any insurance hereunder, Ernest’s failure to take any action regarding such breach, including but not limited to, requesting or requiring proof of the existence of any such insurance at any time, and/or providing notice to Member of any such non-compliance, will not be considered or construed in any manner as a waiver of any rights of Ernest for such breach, nor will such failure of Member to carry any such insurance or such failure of Ernest to take any action with regard to such breach impose any obligation or liability on Ernest in any manner. Ernest reserves the right, but will not be obligated, to purchase any insurance on behalf of Member, at Member’s expense. If Member fails to carry insurance and a Claim occurs that would otherwise be covered by Member’s insurance, Ernest, without imposing any liability on Ernest or waiving any rights Ernest has with regard to Member’s breach, may, but will not be obligated to, make a claim under any insurance policy carried by Ernest to cover such Claim, in which event Member will be liable to Ernest for all costs and expenses of Ernest to cover such Claim, including, but not limited to, the applicable deductible and a reasonable portion of the premium as determined by Ernest. Ernest, at its expense, will maintain during the Term insurance in such amounts as required under Ernest’s lease with its Landlord for the Premises (the “Lease”).
(g) Non-Solicitation. Member will not, during the Term of this Agreement and for a period of one (1) year thereafter, solicit the employment of any officer, employee, contractor, subcontractor, or service provider of Ernest, which causes such person, directly or indirectly, to decrease or terminate its employment or business with Ernest. If Member hires any employee, contractor, or subcontractor of Ernest during the period described, Member will pay to Ernest an amount equal to such person’s annual salary with Ernest. Notwithstanding the foregoing, nothing in this paragraph shall restrict or preclude Member from hiring any person who responds to a general solicitation of employment through an advertisement not targeted specifically at Ernest or its employees.
(a) Breach of Agreement. In the event of a breach of this Agreement by Member, Ernest will have any and all rights and remedies available to Ernest as set forth in the Agreement, at law and/or in equity, including without limitation, recovery of all court costs and reasonable attorneys’ fees incurred by Ernest in pursuing such remedies, whether suit is filed or not, all of which rights and remedies are cumulative and not exclusive of each other.
(b) Entire Agreement. This Agreement, including all schedules and attachments incorporated by reference, sets forth the entire understanding of the parties relating to its subject matter, and all other understandings, written or oral, are superseded. This Agreement will also be deemed to include all policies, procedures, and requirements published by Ernest from time to time, with which Member hereby agrees to comply. Except as otherwise provided in this Agreement, this Agreement may not be amended except in a writing executed by both parties.
(c) Subordination. Notwithstanding anything herein to the contrary, this Agreement is at all times subject and subordinate to the Lease with Landlord and to any other agreements to which the Lease is subject or subordinate. Member acknowledges that Member has no rights under the Lease.
(d) Governing Law; Venue; Waiver of Jury Trial. This Agreement is governed by the laws of North Carolina, without giving effect to any conflict of law principle that would result in the laws of any other jurisdiction governing this Agreement. Any action, suit, or proceeding arising out of the subject matter of this Agreement will be litigated in courts located in Buncombe County, North Carolina. Member consents and submits to the jurisdiction of any local, state, or federal court in Buncombe County, North Carolina. EACH PARTY, BY ENTERING INTO THIS AGREEMENT, HEREBY IRREVOCABLY AGREES TO WAIVE ANY RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THE SUBJECT MATTER OF THIS AGREEMENT.
(e) Waivers. Neither party will be deemed by any act or omission to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by the waiving party, and then only to the extent specifically set forth in writing. Further, one or more waivers of any covenant or condition by either party will not be construed as a waiver of a subsequent breach of the same covenant or condition, and the consent or approval by either party to or of any act requiring such consent or approval will not be deemed to render unnecessary future consent or approval to or of any subsequent similar act.
(f) Relationship of the Parties. The parties to this Agreement are independent contractors and will not be considered agents, employees, servants, joint venturers, or partners of one another. Neither party has the authority to bind the other party except as explicitly set forth in this Agreement, and neither party will make any representation or warranty otherwise. Ernest will have no responsibility for any fee or expense incurred by Member in connection with either party’s performance this Agreement, or provision or use of the Services.
(g) Successors and Assigns. In the event of any transfer or transfers of Ernest’s interest in the Premises, Ernest will automatically be relieved of any and all respective obligations accruing from and after the date of such transfer. Following any such transfer(s), all rights, obligations, and interests of Ernest under this Agreement will apply to, inure to the benefit of, and be binding on any such successors and assigns of Ernest.
(h) No Third-Party Beneficiaries. Except for third parties entitled to indemnity under this Agreement or third parties whose liability is specifically limited pursuant to the terms of this Agreement, the parties to this Agreement do not intend to confer any right or remedy on any third party.
(i) Force Majeure. Neither party is liable for, and will not be considered in default or breach of this Agreement on account of, any delay or failure to perform as required by this Agreement (with the exception Member’s obligation to pay any sum due to Ernest hereunder, including without limitation, the License Fees, which obligation will remain unaffected by the provisions of this paragraph) as a result of any causes or conditions that are beyond such party’s reasonable control and which such party is unable to overcome by the exercise of reasonable diligence, provided that the affected party will use commercially reasonable efforts to promptly resume normal performance.
(j) Severability. If a provision of this Agreement is determined to be unenforceable in any respect, the enforceability of the provision in any other respect and of the remaining provisions of this Agreement will not be impaired.
(k) Notices. Unless expressly specified otherwise herein, all notices, requests, demands and other communications to be delivered hereunder will be in writing and delivered in person, by nationally recognized overnight carrier, or by registered or certified mail, return-receipt requested and postage prepaid, to the following addresses: if to Ernest, to: Ernest, Attn: CEO, 135 Sweeten Creek Road, Asheville, NC 28803; and if to Member: to the address provided by Member upon execution of this Agreement, and if none, then to the Suite. All notices will be deemed effective as of the date of confirmed delivery or refusal of receipt. In addition to the foregoing methods, notices from Ernest to Member may also be delivered by email to the email address provided by Member upon execution of this Agreement. Notices of non-renewal by Member may, at the Member’s option, be delivered by email to the Ernest email address provided to Member upon execution of this Agreement. Delivery of notices by email hereunder will be deemed effective upon transmission. Each party may update its respective address and/or e-mail address from time to time upon written notice to the other. Member must promptly provide Ernest with any change of address, e-mail address and other contact information (including phone number). Member agrees to accept community-wide emails sent out to all members by Ernest from time to time, which will be the responsibility of Member to review.
(l) Updates to Agreement. Except as specifically stated otherwise in this Agreement, Ernest may from time to time update the terms of this Agreement by providing at least thirty (30) days’ notice to Member; provided that such updates shall not materially interfere with Member’s rights under this Agreement or impose any additional material obligations on Member. Member acknowledges that Member’s continued use of the Suite and/or Services beyond such thirty (30)-day period will constitute acceptance of such updated terms. In addition, License Fees are subject to change from time to time at Ernest’s sole discretion upon thirty (30) days’ written notice. Member acknowledges that Ernest may serve notice of any changes to Services, fees (other than License Fees hereunder) or other updates through community-wide emails sent out to all members or through notices posted at the Premises, and Member agrees to accept and review such community-wide notices.
(m) Accord and Satisfaction. No payment by Member or receipt by Ernest of a lesser amount than required hereunder will be deemed to be other than on account of the earliest amounts due hereunder, nor will any endorsement or statement on any check or any letter accompanying any check or payment be deemed an accord and satisfaction and Ernest may accept such check or payment without prejudice to its rights to recover the balance of such amounts or pursue any other rights and remedies it has under this Agreement.
(n) Time of Essence. Time is of the essence with respect to the performance of each of Member’s obligations under this Agreement.