Legal Agreement: Terms of Service

TERMS & CONDITIONS

 

1. DEFINITIONS

“Agreement” means, collectively, THIS Membership Agreement, including these Terms & Conditions (the “Terms and Conditions”), the attached Membership Details Form cover page(s) (the “Membership Details Form”), and any other attachments, exhibits, and/or supplements. 

“Authorized Signatory” means an individual authorized to legally bind the Member.

“Capacity” means the maximum number of individuals allotted to the Member’s Office Space as set forth in the Membership Details Form.

“Commitment Term” means the period of time from the Start Date to the last day of the period set forth on the Membership Details Form under “Length of Agreement” with respect to each Membership, and which may be extended upon mutual agreement of the parties.

“Individual Office Number” or “Desk Number” means each individual office number and/or workspace location as may be specified in the Membership Details Form. If the symbol “Ø” is included on the Membership Details Form, Candy Factory will provide the Individual Office or Desk Number(s) for the agreed upon Capacity prior to the Start Date.

“Landlord” means our landlord(s) at the Main Premises.

“Lease” means our lease with our Landlord at the Main Premises.

 “Main Premises” means the premises in which Candy Factory is located, as set forth in the Membership Details Form.

“Member” means each party authorized to receive the Services (defined below) (each Member shall be granted a “Membership”).

“Member Company” or “Member” means the company, entity, or individual entering into this Agreement as listed in the Membership Details Form.

“Office Space” means the actual office, dedicated desk, or workspace within the Main Premises corresponding to the Individual Office or desk Number(s), taken together.

“Premises” means a building or portion of a building in which Candy Factory offers offices, workstations, other workspaces, and/or other services to Members.

“Regular Business Days” are all weekdays, except local bank/government holidays.

“Regular Business Hours” are generally from 9:00a.m. to 5:00 p.m. on Regular Business Days.

“Set-Up Fee” means the fee the Member will be charged for each individual included in the Capacity of the Member’s Office Space; the Member is obligated to pay the Set-Up Fee for each individual who will work from the Office Space(s) which the Member occupies, including such Set-up Fees as may be due upon any transfer of Office Space corresponding to a Membership, including any upgrade or downgrade (i.e. transferring to an Office Space with a higher or lower Capacity).

“Start Date” means the date set forth in the Membership Details Form upon which the Services will begin being provided with respect to each Individual Office Number comprising a Membership.

“Candy Factory” or “us” means the Candy Factory Coworking, LLC entity with which the Member is contracting.

“Member Network” means the Candy Factory Members-only online community accessed through the internet or our mobile app.

 

2. THE BENEFITS OF MEMBERSHIP 

  • (2a) Services. Subject to the terms and conditions of this Agreement, and any other policies which Candy Factory makes available to the Member with prior notice from time to time, during the Term (defined below), Candy Factory will use commercially reasonable efforts to provide the Member with the services described below. Those services are referred to in this Agreement as the “Services,” which shall include:
  1. Non-exclusive access to, and use of, the Office Space.
  2. Regular maintenance of the Office Space.
  3. Furnishings for the Office Space of the quality and in the quantity typically provided to other member companies with similar office space, workstations, and/or other workspace, as applicable, in the Premises as of the date when this Agreement begins.
  4. Access to and use of the Candy Factory Member Network in accordance with the terms of services available on the Candy Factory website.
  5. Access to and use of the shared Internet connection in accordance with the terms of services available on the Candy Factory website.
  • (5a) Use of the printers, copiers and/or scanners available to our other member companies, in accordance with the terms described herein.
  • (5b) Use of the conference rooms in the Main Premises and use of conference rooms in any other Candy Factory Premises during Regular Business Hours, in each case subject to availability and the Member’s prior reservation of such conference rooms, in accordance with the terms described herein.
  • (5c) Heat and air-conditioning in the Office Space during Regular Business Hours.
  • (5d) Electricity for reasonable and customary shared office use in the downtown Denver corridor.
  • (5e) Use of kitchens and beverages made available to Candy Factory members.
  • (5f) Acceptance of mail and deliveries on behalf of the Member’s business during Regular Business Hours.
  • (5g) Opportunity to participate in any members-only events, benefits and promotions put on by Candy Factory in the Main Premises

Other services may be provided at the Main Premises by Candy Factory, in its sole and absolute discretion, for an additional fee to Member, such as car parking space, phone service, and IT services, and subject to any additional terms and conditions pertaining to any such services. 

  • (2b) Reserved Rights. Candy Factory entitled to access the Member’s Office Space, with or without notice, in connection with its provision of the Services, for safety or emergency purposes or for any other purposes. Candy Factory may temporarily move furnishings contained within the Member’s Office Space. Candy Factory reserves the right to alter or relocate the Member’s Office Space, provided that Candy Factory will not do so in a manner that substantially decreases the square footage of the Member’s assigned Office Space or related amenities. Candy Factory may also modify or reduce the list of Services or furnishings provided for the Member’s Office Space at any time. The Services may be provided by us, an affiliate and/or a third party.

 

  • (2c) Office Space Not Timely Available. If Candy Factory is unable to make the Office Space available by the Start Date, Candy Factory will not be subject to any liability related to such inability, nor will such inability affect the enforceability of this Agreement. This Agreement shall remain in full force and effect, provided that: (i) the failure to provide access to the Office Space does not last longer than two (2) months and (ii) at Candy Factory’s sole discretion, Candy Factory will either (x) provide the Member with alternate office space (which may or may not be within a Candy Factory building) with reasonably comparable Capacity during such period and charge the Member Membership Fee or (y) not charge the Member the Membership Fee during the period the Office Space is not available to the Member. Following the two (2) month period set forth in (i) above, the Member shall have the ability to terminate this Agreement upon seven (7) days’ prior notice to Candy Factory. If Candy Factory does provide the Member with alternate office space as described in clause (x) above, during the period it does so, the individuals named as Members shall be deemed to be Members and otherwise shall be fully subject to the terms of this Agreement. Notwithstanding anything in this paragraph to the contrary, if the delay in providing the Office Space is due to the Member’s actions or inactions, or due to changes in, or work performed at the Office Space requested by the Member, Candy Factory will not be subject to any liability related to such delay, nor will such delay affect the validity of this Agreement, and Candy Factory shall have no obligations to provide the Member with the benefits described in subsections (x) and (y) of this paragraph and the Member shall not be entitled to terminate this Agreement and shall be liable for the payment of the Membership Fees from the Start Date.

 

  •  (2d) Access Prior to Start Date. If Candy Factory, in our sole discretion, provides the Member’s with access to the Member’s Office Space for any period of time prior to the Member’s Start Date (a “Soft Open Period”), during any such Soft Open Period the Member’s and the Member shall be fully subject to the terms of this Agreement, regardless of whether Candy Factory chooses to charge the Member’s the Membership Fee during any such Soft Open Period. 

 

3. THE MEMBER’S MEMBERS

  • (3a) Member List. The Member is responsible for maintaining the accuracy of the Member’s list of individuals on the Candy Factory Member Network (the Member’s “Member List”). Only those individuals included on the Member List will be deemed to be part of the “Member,” and entitled to receive the Services described in this Agreement. To the extent permitted by law, all of the individuals on the Member’s List shall be required to provide valid government-issued identification in order to be issued an activated key card to access the Premises and a key for their Office Space(s). If the number of individuals regularly using the Member’s Office Space exceeds the Capacity, the Member will be required to pay the then-current additional per extra individual fee as set forth on the Candy Factory website. In no event will the number of such individuals exceed 1.5 times the Capacity, regardless of additional fees paid unless explicitly permitted by Candy Factory in writing; however, any individuals including the Member’s customers, employees, contractors, guests, invitees, licensees, agents, representatives, owners, officers, directors, managers, shareholders, directors, heirs, successors and assigns visiting Candy Factory from time to time on a non-permanent basis, shall not count toward this limit. Candy Factory reserves the right to further limit the number of individuals allowed to work for Member in the Office Space at any time while this Agreement is in effect. Upon the addition of an individual to the Member List, Candy Factory will create a profile for each such individual on the Candy Factory Member Network. Such profile will be viewable by Candy Factory, its employees and agents, and other members. The created profile will include only the individual’s name and the Member Company for which he/she works; any additional information, including a photograph, shall be added solely as determined by the Member. 

 

  • (3b) Changes to or Removal of Authorized Signatory. An Authorized Signatory for the Member generally has the sole authority to make changes to or terminate this Agreement on the Member’s behalf, but only as permitted by this Agreement. An Authorized Signatory will generally serve as the Member’s primary contact regarding matters that involve the Member, ; the  Office Space; the Primary Premises; or the Premises. Candy Factory will be entitled to rely on communications to or from the Authorized Signatory as notice to or from the applicable Member Company. However, an executive officer of the applicable Member Company (“Executive Officer”) will have the authority to override the request of an Authorized Signatory, as applicable, provided that Candy Factory receives such a request within 24 hours following such Authorized Signatory’s request. Candy Factory will be entitled to request reasonable documentation to confirm that an individual claiming to be an Executive Officer truly is one and to exercise its discretion in determining whether a particular position constitutes an “Executive Officer.” An Executive Officer will also have the authority to remove or replace the individual serving as the Authorized Signatory . Unless Candy Factory receives instructions from the Authorized Signatory or Executive Officer, if the individual designated as the  Authorized Signatory or Executive Officer ceases to provide services to the Member Company or ceases using the Office Space regularly, Candy Factory will use its reasonable judgment in designating a replacement Authorized Signatory.

 

4.     MEMBERSHIP FEES; PAYMENTS

  • (4a) Payments Due Upon Signing. Upon completing, signing and submitting this Agreement to Candy Factory, the Member will be obligated to deliver to Candy Factory, in the amount(s) set forth on the Member’s Membership Details Form, (i) the Service Retainer and (ii) the Set-Up Fee.

 

  • (4b) Membership Fee. During the Term (defined below) of this Agreement, the Member’s Membership Fee will be due monthly and in advance on the first (1st) day of each month during which this Agreement is in effect. The Member is obligated to make payment of all Membership Fees owed to Candy Factory as and when due.
  • The Member agrees to pay promptly: (i) all sales, use, excise, value added, and any other taxes which the Member is required to pay to any other governmental authority (and, at Candy Factory’s request, will provide to Candy Factory evidence of such payment) and (ii) all sales, use, excise, value added and any other taxes attributable to the Member’s Membership as shown on the Member’s invoice. The Membership Fee set forth on the Membership Details Form covers the Services for only the number of individuals indicated in the Membership Details Form.
  • Additional individuals will result in additional fees as set forth on  Candy Factory’s website.

On each anniversary of the Start Date the Membership Fee will be subject to an automatic three percent (3%) increase over the then current Membership Fee. Following any Commitment Term, Candy Factory reserve the right to further increase or decrease the Membership Fee at our sole discretion upon thirty (30) days’ prior notice to the Member in advance of and in accordance with the Termination Notice Period described below in Section 5(d).

 

  • (4c) Invoices; Financial Information. Candy Factory will send or otherwise provide invoices and other billing-related documents, information and notices to the Member or, if a Billing Contact is indicated on the Membership Details Form, the Billing Contact. Any change of the Billing Contact will require notice from the Authorized Signatory or Executive Officer in accordance with this Agreement. 

 

  • (4d) Credits; Overage Fees. Each month, the Member’s will receive a certain number of credits for conference room use and a certain number of credits for color and black and white copies and printed pages, as specified on the Membership Details Form. These allowances may not be rolled over from month to month. If those allocated credits are exceeded, the Member will be responsible for paying fees for such overages. The current overage fee schedule is listed on Candy Factory’s website. All overage fees are subject to increase from time to time at Candy Factory’s sole discretion and upon notice to the Member.

 

  • (4e) 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 month in which such payment is due, the Member will also be responsible for paying the then-current late charge. The current late fee schedule is listed on Candy Factory’s website. All late fees are subject to increase from time to time at Candy Factory’s sole discretion upon notice to the Member.

 

  • (4f) Form of Payment. Candy Factory accepts payment of all sums due and owing under this Agreement solely by the methods Candy Factory communicates to the Member during the membership sign up process or from time to time (and upon notice to the Member) during the Term. The Member is required to inform Candy Factory promptly of any changes to the Member’s payment information. At Candy Factory’s sole discretion, changing the Member’s payment method may result in a change in the amount required under this Agreement to be held as the Service Retainer.

 

  • (4g) Outstanding Fees. Any outstanding fees due and owing by the Member will be charged in arrears on a monthly basis. When Candy Factory receives funds from the Member, Candy Factory will first apply them to any balances which are in arrears (including any outstanding late fees) 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 Candy Factory provides notice to the Member’s, Candy Factory may, in its sole discretion, withhold Services or terminate this Agreement in accordance with Section 5.

 

  • (4h) No Refunds. Except as otherwise provided for herein, there are no refunds of any fees or other amounts paid by the Member in connection with the Services.

 

5.     TERM AND TERMINATION

  • (5a) Term. This Agreement will be effective when signed by both parties (“Effective Date”); provided that Candy Factory has no obligation to provide the Member with the Services until the later of (i) the date on which payment of the Member’s Service Retainer, Set- Up Fee and first month’s Membership Fee has been received by us or (ii) the Start Date. Unless otherwise set forth on the Membership Details Form, or in a separate written document signed by both Member and Candy Factory, following the Commitment Term (any term after the Commitment Term shall be hereinafter referred to as a “Renewal Term”), this Agreement shall continue on a month-to-month basis, subject to the Termination Notice Periods (defined below). The Commitment Term and all subsequent Renewal Terms shall constitute the “Term.” 

 

  • (5b) Move In / Move Out. If the Start Date is a Regular Business Day, the Member will be entitled to move into the Office Space no earlier than 11:00a.m. on that day, provided that the Member has complied with the payment obligations described in Section 5(a). If the Start Date is not a Regular Business Day, the Member will be entitled to move into the Office Space no earlier than 11:00 a.m. on the last Regular Business Day of the Termination Effective Month (defined below), the Member must vacate the Office Space and remove all of its personal property by no later than 4:00 p.m.

 

  • (5c) Termination Prior to Start Date by the Member. In addition to any other remedies Candy Factory may pursue, if Member terminates this Agreement prior to the Start Date, that will result in the immediate forfeiture of the Set- Up Fee and Service Retainer as well as any amounts expended by Candy Factory at the Member’s request to prepare the Office Space for the Member’s use. The Member’ shall remain obligated to pay all such amounts in the event the Member has not paid any portion thereof at the time of such termination.

 

  • (5d) Termination by The Member after the Start Date. The Member may terminate this Agreement by providing written notice to Candy Factory prior to the month in which the Member intends to terminate this Agreement (“Termination Effective Month”) in accordance with the notice periods set forth in the chart below [the “Termination Notice Period(s)”]. The applicable Termination Notice Period shall be determined by the Commitment Term and Capacity for the relevant Individual Office Number, as depicted in the chart below, and as displayed on the Membership Details Form. The Termination Notice Periods shall apply to any termination by the Member during the Term. After receiving such notice Candy Factory will deliver to the Member the then applicable Candy Factory Exit Form (“Exit Form”), which the Member must complete and submit to Candy Factory. After the Member’s submission of such notice, the termination will be effective on the later of the last Regular Business Day of the Termination Effective Month or the expiration of the Commitment Term. No termination by the Member shall be effective during the Commitment Term (except pursuant to Section 2(c) of this Agreement), and termination by the Member during the Commitment Term shall constitute a breach of this Agreement. Unless the parties both agree otherwise in a separate written document signed by both of them, no downgrade of the Office Space (i.e. transferring to an office space with a lower Capacity) shall be permitted during the Commitment Term. If the Member terminates this Agreement prior to the end of the Commitment Term (or during any relevant Termination Notice Period), the Member’s Membership Fee Obligations shall become immediately due and payable to Candy Factory. In addition to any rights, claims and remedies Candy Factory chooses to pursue in its discretion, the Member’s Service Retainer shall be forfeited immediately upon any breach of this Agreement by the Member. Notice of any such termination by Member must be provided to Candy Factory during Regular Business Hours. In addition, Member shall also be required to contemporaneously complete, sign, date (which must be done by Member’s Authorized Signatory or Executive Officer) and furnish Candy Factory with its then applicable Exit Form. No termination of this Agreement by Member under this subsection d. will entitle Member to any pro ration with respect to Member’s last month's Membership Fee. For instance, if the Member terminates this Agreement; vacates its Office Space; and furnishes Candy Factory with the then applicable Exit Form as set forth above and before the last Regular Business Day of April, the Member will still be required to pay Candy Factory its full Membership Fee for the month of April.

 

Member Company Termination Notice Periods Required:

Commitment Term

Capacity            /             1-4               /             5+

 1 - 12 months   |     1 month notice   |   2 months notice

 13 – 24+months  |  2 months notice  |  3 months notice 

  • Example: If the Capacity for the Office Space is between one (1) and four (4) Members, and the Commitment Term is between one (1) and eleven (11) months, the applicable Termination Notice Period would be one (1) month, and to terminate this Agreement effective the last Regular Business Day of April (provided that the Commitment Term shall not have expired by such date) the last opportunity for Member to provide notice to Candy Factory would be during Regular Business Hours on the last Regular Business Day of March.

 

  • (5e) Candy Factory may withhold Services or immediately terminate this Agreement: (i) upon breach of this Agreement by the Member (which includes individuals working for Member); (ii) upon termination, expiration or material loss of Candy Factory’s rights in the Premises; (iii) if any outstanding fees are still due and payable by Member after Candy Factory provides notice to it; (iv) if the Member (i.e. any individuals working for Member) fails to comply with the terms and conditions of the Candy Factory Member Network Terms of Service, our Wireless Network Terms of Service, or any other policies or instructions  made available to Member by Candy Factory or applicable in any other way to the Member; or (v) at any other time, when Candy Factory, in its sole discretion, sees fit to do so. The Member will remain liable for past due amounts, and Candy Factory may exercise its rights to collect any such amounts, despite termination or expiration of this Agreement.
  • Any Member (including any and all individuals who work for it) will no longer receive the Services and is no longer authorized to access any portion of the Main Premises, including the Office Space, upon the  earlier of the termination or expiration of this Agreement; or (y)  Candy Factory’s notice to the Member’s that such Member violated this Agreement.

 

  • (5f) Service Retainer. The Service Retainer will be paid by Member to Candy Factory at the time of Member’s execution of this Agreement, and shall held by Candy Factory as a retainer for performance of all of the Member’s obligations under this Agreement, including the Membership Fee Obligations, and is not intended to be a reserve from which Members can choose to have amounts due and payable by it to Candy Factory deducted. Candy Factory will return the Service Retainer, or any portion of it remaining after deducting outstanding fees and other costs due to Candy Factory by Member, including any unsatisfied Membership Fee Obligations, to the Member by bank transfer or other method that Candy Factory communicates to the Member within thirty (30) days (or earlier if required by applicable law) after the later of (i) the termination or expiration of this Agreement and (ii) the date on which the Member provides to Candy Factory all account information necessary for Candy Factory to make such payment. Return of the Service Retainer is also subject to the Member’s complete performance of all of the Member’s obligations under this Agreement, including full payment  of the Member’s Membership Fee Obligations and any additional obligations applicable while this Agreement is in effect and, as the case may be, following termination or expiration of this Agreement.

 

  • (5g) Removal of Property Upon Termination. Prior to the termination or expiration of this Agreement, the Member will remove all of the Member’s property (and that of the Member’s employees, contractors, guests, invitees, licensees, agents, representatives, owners, officers, directors, Members, Managers, shareholders, directors, heirs, successors and assigns) from the Office Space and the Main Premises. After providing the Member with seventy-two (72) hours’ notice, Candy Factory will be entitled to dispose of any such property remaining in or on the Office Space or the Main Premises after the termination or expiration of this Agreement, and will not have any obligation to store such property, and the Member hereby waives any claims and demands regarding such property or Candy Factory’s handling or disposal of such property. The Member will be responsible for paying any fees reasonably incurred by Candy Factory in relation to such removal. Candy Factory shall have no implied obligations relating to any such property as a bailee or custodian, and the Member hereby indemnifies Candy Factory, and agrees to keep Candy Factory indemnified, with respect of any claims of any third parties with respect to  such property. Following the termination or expiration of this Agreement, Candy Factory will not forward or hold mail or other packages addressed to Member but delivered to us, whether delivered to the Office Space; the Main Premises; or at any other location.

 

6.  HOUSE RULES

In addition to any rules, policies and/or procedures that are specific to the Office Space or any other portion of the Main Premises used by the Member (including its employees, contractors, guests, invitees, licensees, agents, representatives, owners, officers, directors, Members, Managers, shareholders, directors, heirs, successors and assigns).

  • (6a) Member acknowledges and agrees that:

1. keys, key cards and other such items used to gain physical access to the Main Premises, or the Office Space. remain the property of Candy Factory. The Member will cause its employees, contractors, guests, invitees, licensees, agents, representatives, owners, officers, directors, Members, Managers, shareholders, directors, heirs, successors and assigns, to safeguard Candy Factory’s property and the Member’s shall promptly notify Candy Factory and be liable for replacement fees should any such property be lost, stolen or destroyed by Member, its employees, contractors, guests, invitees, licensees, agents, representatives, owners, officers, directors, Members, Managers, shareholders, directors, heirs, successors or assigns;

2. the Member shall promptly notify us of any change to the Member’s contact and/or payment information;

3. Candy Factory will provide notice to the Member of any changes to Services, fees, or other updates via the email address specified by the Member in the Membership Details Form. It is the Member’s responsibility to read such emails and to ensure that all individuals working for Member____________ are aware of any changes, regardless of whether Candy Factory notifies such individuals directly;

4. carts, dollies and other freight items which may be made available may not be used in the passenger elevator in the Premises, except at Candy Factory’s sole discretion;

5. for security reasons, Candy Factory may, but has no obligation to, regularly record certain areas in the Premises and the Main Premises via video;

6. all of the individuals working for, and comprising the ownership of, Member are at least 18 years of age;

7. In the absence of (a) advance, written permission by Candy Factory, which may be withheld by Candy Factory at its sole discretion; and (b) adhering to all applicable governmental rules; regulatons; ordinances; code provisions; and statutes, Member (including its employees, contractors, guests, invitees, licensees, agents, representatives, owners, officers, directors, Members, Managers, shareholders, directors, heirs, successors and assigns) shall not sell, serve or consume, or permit the sale, service, or consumption, of any alcohol from or in the Premises, the Main Premises or the Office Space.

8. the Member shall provide Candy Factory with no less than 48 hours’ written notice of and complete all required paperwork, and receive written approval from Candy Factory prior to hosting any event at the Premises;

9. the Member will be responsible for any damage to the Office Space other than normal wear and tear;

10. the Member will be responsible for replacement fees for any item(s) provided to the Member by the Candy Factory community team for temporary use should any such property be lost, stolen, damaged or destroyed;

11. Candy Factory shall not liable for any mail or packages delivered to the Member, whether to the Office Space or the Main Premises, without a Candy Factory employee’s signature indicating acceptance of same;

12. the Member shall not make any structural or nonstructural alterations or installations (including, but not limited to, wall attachments, furniture, IT equipment, and/or glass paneling) to the Office Space or elsewhere within the Main Premises or the Premises without prior approval by Candy Factory, which approval may be withheld at Candy Factory’s sole discretion. In the event that any such alterations or installations are made, the Member shall be responsible for the full cost and expense of same (as well as for the full cost and expense of their removal and, as the case may be, any related restoration to the area where they were installed) .  Prior to the earlier of the termination or expiration of this Agreement, the Member shall arrange for such removal and restoration via Candy Factory.  Candy Factory shall have the right, but not the obligation, to deduct any such costs it may occur in relation to said removal and restoration not otherwise paid for by the Member from the Service Retainer. In no event is  the Member (or any of its employees, contractors, guests, invitees, licensees, agents, representatives, owners, officers, directors, Members, Managers, shareholders, directors, heirs, successors and assigns)permitted to perform any of these actions. Only a member of Candy Factory’s facilities staff is entitled to perform any such alteration, installation, removal or restoration. Candy Factory encourages Member to reach out to a member of Candy Factory’s community team for more information relating to such alteration, installation, removal and restoration well in advance of same;

13. Member shall ensure that its computers, tablets, mobile devices and other electronic equipment (and those of its employees, contractors, guests, invitees, licensees, agents, representatives, owners, officers, directors, Members, Managers, shareholders, directors, heirs, successors and assigns) are (a) kept up-to-date with the latest software updates provided by the software vendor and (b) kept clean and free of any malware, viruses, spyware, worms, Trojans, or anything that is designed to perform malicious, hostile and/or intrusive operations. Candy Factory reserves the right to remove any device from its networks that poses a threat to its networks or users until and unless the threat is remediated; and

the Member’s consent to Candy Factory’s non-exclusive, non- transferable use of the Member’s name and/or logo in connection with identifying the Member as a Member Company of Candy Factory, alongside those of other member companies, on a public-facing “Membership” display on Candy Factory’s website, as well as in video and other marketing materials. The Member warrants that the Member’s logo does not infringe upon the rights of any third party, and that the Member has the full authority to provide this consent. The Member may terminate this consent at any time upon thirty (30) days’ prior written notice to Candy Factory.

 

  • (6b) No Member will:
  1. perform any activity or cause or permit anything that is reasonably likely to be disruptive or dangerous to (a) Candy Factory, or to any other member companies, or to their respective employees, guests, contractors, invitees, licensees, agents, representatives, owners, officers, directors, Members, Managers, shareholders, directors, heirs, successors or assigns, or to their respective property, including, without limitation, in the Office Space, the Main Premises or the Premises;
  2. use the Services, the main Premises, the Premises or the Office Space to conduct or pursue any illegal or offensive activities, or comport themselves to the community in a similar manner. All Members shall act in a respectful manner towards Candy Factory representatives, other member companies, and their respective employees, guests, contractors, invitees, licensees, agents, representatives, owners, officers, directors, Members, Managers, shareholders, directors, heirs, successors and assigns;
  3. misrepresent itself, himself or herself, to the Candy Factory or the Candy Factory community, either in person (including, but not limited to, at the Premises, the Main Premises and the Office Space) or on the Candy Factory Member Network;
  4. take, copy or use any information or intellectual property belonging to other member companies or their respective employees, guests, contractors, invitees, licensees, agents, representatives, owners, officers, directors, Members, Managers, shareholders, directors, heirs, successors or assigns , including, without limitation any confidential or proprietary information, 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;
  5. take, copy or use for any purpose (a) the name "Candy Factory", “ or any of Candy Factory’s other business names, trademarks, service marks, logos, designs, copyrights, patents, trade secrets, trade dress, marketing material, other identifiers or other intellectual property ("Intellectual Property"); (b) any derivations, modifications or similar versions of the same; or (c) any photographs or illustrations of any portion of  the Premises, the Main Premises, or the Office Space, for any purpose, including competitive purposes, without the Candy Factory’s prior consent, which consent may be withheld by Candy Factory at its sole discretion , provided that during the Term of this Agreement the Member will be able to use “Candy Factory” in plain text to accurately identify an address its office location within the Main Premises. The Member acknowledges that Candy Factory owns all rights. The Member may not file for ownership rights of any of Candy Factory’s Intellectual Property with any governmental authority or use its Intellectual Property in any advertising, including domain names, social media handles, or any form of media invented in the future. The Member may not, directly or indirectly, interfere with or object to, in any manner, Candy Factory’s ownership rights or the use of its Intellectual Property or engage in any conduct that is likely to cause confusion between Candy Factory and the Member itself, herself or himself, without Candy Factory’s prior consent, which consent may be withheld by Candy Factory at its sole discretion, and this provision will survive termination or expiration of this Agreement;
  6. film within any portion of the Premises or the Main Premises, including within the Office Space, without completing all required paperwork and receiving express written consent from Candy Factory, which consent may be withheld by Candy Factory at its sole discretion;
  7. use the Office Space in a retail, medical, or other capacity involving frequent visits by members of the public, as a residential or living space, or for any exclusively non- business purpose;
  8. sell, manufacture or distribute any controlled substance, including, but not limited to, alcoholic beverages, from the Office Space, the Premises or the Main Premises, or obtain a license for such sale, manufacture, importation, or distribution, using the Premises, Main Premises or the Office Space, or the addresses thereof;
  9. use Candy Factory’s mail and delivery services for fraudulent or unlawful purposes, and Candy Factory shall not be liable for, and Member shall hold Candy Factory harmless from, and indemnify it for, any such use;
  10. store significant amounts of currency or other valuable goods or commodities in the Office Space, the Premises or the Main Premises that are not commonly kept in commercial offices. In the event that the Member does so, Candy Factory will not be liable for any such loss, and Member shall hold Candy Factory harmless from, and indemnify it for, and such loss;
  11. make any copies of any keys, keycards or other means of entry to the Premises, the Office Space or the Main Premises, or lend, share or transfer any such keys or keycards to any third party, unless authorized by Candy Factory in advance, which authorization may be withheld by Candy Factory at its sole discretion;
  12. install any locks to access the Office Space or anywhere within the Premises or the Main Premises, unless authorized by Candy Factory in advance, which authorization may be withheld by Candy Factory at its sole discretion;
  13. allow any guest(s) to enter the Premises, the Main Premises or the Office Space without registering such guest(s) and performing any additional required steps as required by Candy Factory’s policies;
  14. operate any equipment within the Premises, the Main Premises or the Office Space that has a higher heat output or electrical consumption than that of a typical personal office, environment, or places excessive strain on the electrical, IT, HVAC or structural systems in the Premises, the Main Premises or the Office Space, with such determination to be made in Candy Factory’s sole discretion, and with r Candy Factory’s prior approval, which approval may be withheld by Candy Factory at its sole discretion; or
  15. bring any weapons of any kind (including, but not limited to, guns, knives or any biological or chemical agent of any kind), or any other offensive, dangerous, hazardous, flammable or explosive materials into the Premises, the Main Premises or the Office Space.

The Member is responsible for ensuring that its employees, guests, contractors, invitees, licensees, agents, representatives, owners, officers, directors, Members, Managers, shareholders, directors, heirs, successors and assigns, comply with all “House Rules” and with all other rules, policies and/or procedures that are specific to the Premises, the Main Premises and the Office Space used by the Member, and agree that in the event of any penalty or fine resulting from the breach of any such rules, policies and/or procedures, the Member will be responsible for paying the entirety of such penalty or fine in a timely manner.

 

7.     ADDITIONAL AGREEMENTS

  • (7a) Information Technology. In order to utilize all the functionalities offered by Candy Factory, it may be necessary to install software onto a Member’s computer, tablet, mobile device and/or other electronic equipment. In addition, a Member may request that Candy Factory troubleshoot problems a Member may have with respect to printing, accessing the network connection or other issues. If Candy Factory provides such services, Candy Factory will not be responsible for any damage to t any such computer, tablet, mobile device and/or other electronic equipment.

 

  • (7b) Network Connection. Candy Factory provides shared Internet access to Members via, at Candy Factory’s sole discretion, a wireless or wired network connection. For those Members wishing to implement a private wired network, Candy Factory may allow the Member to install a firewall device for the Member’s exclusive access and use, subject to Candy Factory’s approval, which approval may be withheld by Candy Factory at its sole discretion, and the Member will be responsible for the prompt removal of the same upon the earlier of the termination or expiration of this Agreement. Prior to any such installation or removal, the Member shall coordinate with the Candy Factory IT team to discuss the actual setup, appropriate time, manner and means for such installation or removal, and any additional fees that may result from the request. To the extent that Candy Factory incurs any costs in connection with such installation or removal, which are not otherwise paid by the Member, Candy Factory shall have the right, but not the obligation, to deduct such costs from the Service Retainer. The Member shall also be responsible for the prompt payment of any monthly fees incurred relating to the Member’s private, secured wired network.
  • Waiver of Claims. To the extent permitted by law, the Member, on the Member’s own behalf and on behalf of its employees, guests, contractors, invitees, licensees, agents, representatives, owners, officers, directors, Members, Managers, shareholders, directors, heirs, successors and assigns ,waive any and all claims, damages, actions, causes of action, and rights (including, but not limited to, those for personal injury, death, property damage and theft), against Candy Factory  its affiliates, employees, guests, contractors, invitees, licensees, agents, representatives, owners, officers, directors, Members, Managers, shareholders, directors, heirs, successors and assigns (including their respective employees, guests, contractors, invitees, licensees, agents, representatives, owners, officers, directors, Members, Managers, shareholders, directors, heirs, successors and assigns) (collectively, the “Candy Factory Parties”) and Candy Factory’s landlord at the Premises, the Main Premises or the Office Space, except to the extent caused by the gross negligence, willful misconduct or fraud of the Candy Factory Parties.

 

  • (7c) Limitation of Liability. To the extent permitted by law, the aggregate monetary liability of any of the Candy Factory to the Member, its employees, guests, contractors, invitees, licensees, agents, representatives, owners, officers, directors, Members, Managers, shareholders, directors, heirs, successors and assigns, for any reason and for all causes of action, will not exceed the total Membership Fees paid by the Member to Candy Factory under this Agreement in the twelve (12) months prior to the claim arising. Furthermore, none of the Candy Factory Parties will be liable, under any theory, for any claims, damages, actions, causes of action, and rights (including, but not limited to, those for personal injury, death, property damage and theft), including, those for indirect, special, incidental, consequential, or punitive, damages, or any loss of profits or business interruption. The Member acknowledges and agree that  neither the Member nor its  employees, guests, contractors, invitees, licensees, agents, representatives, owners, officers, directors, Members, Managers, shareholders, directors, heirs, successors and assigns, may  commence any action or proceeding against any of the Candy Factory 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. Notwithstanding anything contained in this Agreement to the contrary, the Member acknowledges and agrees that neither it nor its employees, guests, contractors, invitees, licensees, agents, representatives, owners, officers, directors, Members, Managers, shareholders, directors, heirs, successors and assigns, shall commence any action or proceeding against any of the Candy Factory Parties other than for the Services for which Candy  Factory and the Member are directly contracting  hereunder, and any amount recoverable via any such action or proceeding shall be limited to the assets of Candy Factory.  such entity for any amounts due or for the performance of any obligations in connection with this Agreement.

 

  • (7d) Indemnification. The Member shall hold the Candy Factory Parties harmless from, and indemnity them from and against any and all claims, including third party claims, liabilities, and expenses including reasonable attorneys’ fees, resulting from any breach or alleged breach of this Agreement by the Member, its employees, guests, contractors, invitees, licensees, agents, representatives, owners, officers, directors, Members, Managers, shareholders, directors, heirs, successors or assigns or their actions or omissions, except to the extent that such a claim results from the gross negligence, willful misconduct or fraud of the Candy Factory Parties. The Member shall be liable for the actions of, and all damages, claims, actions, causes of action, and rights (including, but not limited to, those for personal injury, death, property damage and theft), including, those for indirect, special, incidental, consequential, or punitive, damages, or any loss of profits or business interruption, caused by all persons and pets that the Member or its employees, guests, vendors, contractors, invitees, licensees, agents, representatives, owners, officers, directors, Members, Managers, shareholders, directors, heirs, successors or assigns, invite to enter any part of the Premises, the Main Premises or the Office Space. Neither the Member nor its employees, guests, vendors, contractors, invitees, licensees, agents, representatives, owners, officers, directors, Members, Managers, shareholders, directors, heirs, successors or assigns, shall enter into any settlement that requires a materially adverse act or admission by, or imposes any obligation upon, any of the Candy Factory Parties unless the Member has first obtained  the relevant Candy Factory Party’s written consent, which consent may be withheld by any such Party at said Party’s sole discretion. None of the Candy Factory Parties shall be liable for any obligations arising out of any such settlement made without said prior written consent.

 

  • (7e) Insurance. The Member shall maintain, at its sole expense and at all times during the Term, personal property insurance and commercial general liability insurance covering the Member and its employees, guests, vendors, contractors, invitees, licensees, agents, representatives, owners, officers, directors, Members, Managers, shareholders, directors, heirs, successors or assigns  for property loss, damage, personal injury, death, and business loss/interruption, and denial of use of or access to, all or part of the Premises, the Main Premises and the Office Space in a form and amount appropriate to the Member’s business, but in no event less than two (2) million dollars annual aggregate per policy period. In addition, the Member is responsible for maintaining, at the Member’s own expense and at all times during the Term, workers’ compensation insurance providing statutory benefits in accordance with the law and employer’s liability in an amount appropriate for  the Member’s business. The Member’s will ensure that Candy Factory and its Landlord shall each be named as additional insureds on the Member’s required commercial general liability policy, and that all insurance policies obtained by Member as required hereunder shall include a clause stating that Member’s insurer waives all rights of recovery, under subrogation or otherwise, which the Member may have against Candy Factory and Candy Factory’s Landlord. The Member shall provide proof of insurance at the time Member executes this Agreement and, thereafter, every three (3) months. 

 

  • (7f) Pets. If the Office Space is in Premises designated by Candy Factory to be one in which pets are permitted, and if any individual working for Member plans on regularly bringing a pet into the Office Space or otherwise into the Premises, Candy Factory may require Member or, at Candy Factory’s election, said individual, to produce proof of vaccination for such pet and evidence of compliance with any and all other applicable local regulations. If any such individual  brings a pet into the Premises, the Member will be responsible for any injury or damage caused by the pet to other members or guests or other occupants of the Premises, the Main Premises or the Office Space, or to the property of (i) Candy Factory; (ii) any other members (or their respective  employees, guests, vendors, contractors, invitees, licensees, agents, representatives, owners, officers, directors, Members, Managers, shareholders, directors, heirs, successors or assigns) or (ii) Candy Factory’s Landlord.  Under no circumstances shall any Candy Factory Parties  be responsible for any injury to such pets. Candy Factory reserves the right, in its sole discretion,
  • to restrict the right of any individual working for or otherwise affiliated with Member (including any employees, guests, vendors, contractors, invitees, licensees, agents, representatives, owners, officers, directors, Members, Managers, shareholders, directors, heirs, successors or assigns, of Member) to bring a pet into the Premises, the Main Premises or the Office Space.

 

  • (7g) Other Members. Candy Factory does not control and shall not be responsible for the actions of other Candy Factory members (or their respective employees, guests, vendors, contractors, invitees, licensees, agents, representatives, owners, officers, directors, Members, Managers, shareholders, directors, heirs, successors or assigns), or of any other third parties. If a dispute arises between Candy Factory Member (including any of its employees, guests, vendors, contractors, invitees, licensees, agents, representatives, owners, officers, directors, Members, Managers, shareholders, directors, heirs, successors or assigns) and any other Candy Factory member (including any with said other member’s employees, guests, vendors, contractors, invitees, licensees, agents, representatives, owners, officers, directors, Members, Managers, shareholders, directors, heirs, successors or assigns), Candy Factory shall have no responsibility or obligation to participate, mediate or indemnify any party involved in said dispute.

 

  • (7h) Third Party Services. Services do not include, and Candy Factory shall not be involved in, or in any way liable to Member, for, the provision of products or services to Member by third parties (“Third Party Services”) that the Member may elect to purchase in connection with its Membership, including via the Candy Factory Services Store, even if they appear on the Member’s Candy Factory invoice. Third Party Services are provided solely by the applicable third party (“Third Party Service Providers”) and pursuant to separate arrangements between the Member and the applicable Third Party Service Providers. By adding an individual to the Member List, the Member is thereby authorizing that individual to access and use the Services.

 

  • (7i) Privacy. Candy Factory collects, processes, transfers and secures personal data relating to the Member and all individuals working for Member at the Main Premises, the Office Space and the Premises, and in accordance with all applicable data protection laws. Note that the Member are not obligated to provide us with personal information and any information collected by us will be provided by the Member’s at the Member’s own will and with the Member’s explicit consent granted herein by execution of this Agreement.

 

  • (7j) The Member hereby (i) undertakes, where necessary, to obtain consent from each such Individual to the collection, processing, transferring and securing of data described herein and (ii) confirm that the same shall be done in accordance with all applicable law.

 

8.     ARBITRATION AND CLASS ACTION WAIVER

  • (8a) Governing Law. This Agreement and the transactions contemplated hereby shall be governed by and construed under the law of the State of Colorado, without regard to conflicts of law provisions thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods.
  • (8b) Venue. The parties agree that the sole jurisdiction and venue for any and all suits and special proceedings arising out of, in connection with, or by reason of, this Agreement, will be in the state courts in and for the City and County of Denver, State of Colorado. 

EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS OR EVENTS CONTEMPLATED HEREBY OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF ANY PARTY HERETO.  THE PARTIES HERETO EACH AGREE THAT ANY AND ALL SUCH CLAIMS AND CAUSES OF ACTION SHALL BE TRIED BY THE COURT WITHOUT A JURY.  EACH OF THE PARTIES HERETO FURTHER WAIVES ANY RIGHT TO SEEK TO CONSOLIDATE ANY SUCH LEGAL PROCEEDING IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER LEGAL PROCEEDING IN WHICH A JURY TRIAL CANNOT OR HAS NOT BEEN WAIVED.

 

  • (8c) Class Action Waiver. Any proceeding to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. Neither the Member nor Candy Factory 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. The Member also agrees not to participate in claims brought in a private attorney general or representative capacity, or any consolidated claims involving another person's account, if Candy Factory is a party to the proceeding. THE MEMBER IS HEREBY GIVING UP ITS RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM THE MEMBER MAY HAVE AGAINST CANDY FACTORY, INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS.

 

9.  MISCELLANEOUS

  • (9a) Nature of the Agreement; Relationship of the Parties. The whole of the Premises, THE Main Premises and Office Space remains in Candy Factory’s possession and control. This Agreement is a contract for the provision of services and Candy Factory is giving the Member with the right to share with Candy Factory the use of the Office Space so that Candy Factory can provide the Services to the Member. Notwithstanding anything in this Agreement to the contrary, the Member’s and Candy Factory 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 the Member’s 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. Notwithstanding the foregoing, in the event that Member violates this Agreement and fails to cure such default within (5) calendar days of a notice from Candy Factory setting forth such default, Member herby acknowledges that it shall be considered a trespasser, and that it shall be subject to ejection via an action in forceable entry and detainer pursuant to Colorado’s laws pertaining to same. 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. The Member acknowledges and agrees that the Member is entering into this Agreement for the purposes of and in the course of the Member’s trade, business and/or profession, and not as a consumer. Neither party will in any way misrepresent that relationship.

 

  • (9b) Updates to the Agreement. Changes to membership and overage fees, will be governed by Sections 4(b) and 4(d) of this Agreement, Candy Factory may, from time to time, update this Agreement and will provide notice to the Member of any such updates. The Member’s will be deemed to have accepted and be bound by the new terms and conditions set forth in any such update following the passage of two (2) full calendar months after the date of such notice of the update(s). Member’s continued use of the Office Space or Services beyond said two (2) month period will constitute Member’s acceptance of the new terms and conditions set forth in each such update.

 

  • (9c) 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.

 

  • (9d) Subordination. This Agreement is subject and subordinate to Candy Factory’s Lease with its landlord and to any supplemental documentation and to any other agreements to which said Lease is subject or subordinate. However, the foregoing does not imply or create any sublease or other similar relationship involving an interest in real property.

 

  • (9e) Extraordinary Events. Candy Factory 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 Candy Factory’s reasonable control, including, without limitation (i) any delays or changes in the construction of, or Candy Factory’s ability to procure any space in, any portion of the Premises, and (ii) any delays or failure to perform caused by conditions under the control of Candy Factory’s landlord for its lease of the Main Premises.

 

  • (9f) Severable Provisions. Each provision of this Agreement shall be considered severable. To the extent that any provision of this Agreement is prohibited or otherwise limited, this Agreement shall be considered amended to the smallest degree possible in order to make the Agreement effective under applicable law.

 

  • (9g) Survival. Sections 1, 2(b), 4 (to the extent any payments remain outstanding), 5(d), 5(f), 5(g), 6(b), 7(a) through 7(f), 7(h), 8, and 9, and all other provisions of this Agreement reasonably expected to survive the termination or expiration of this Agreement, will do so.

 

  • (9h) Notices. Any and all notices under this Agreement will be given via email (which, for purposes of this Agreement, shall be considered the same as a written notice), and will be effective on the first business day after being sent. All notices will be sent via email to the email addresses specified on the Membership Details Form, except as otherwise provided in this Agreement. Notwithstanding the foregoing, Candy Factory may mail notices to either (or both) the Member’s Authorized Signatory or Executive Officer, as Candy Factory determines in its reasonable discretion. All Notices from Member to Candy Factory shall be sent by the Authorized Signatory or Executive Officer. In the event that Candy Factory receives multiple notices from different individuals within the Member’s company containing inconsistent instructions, the Authorized Signatory’s notice will control unless Candy Factory, in its sole discretion, decides otherwise.

 

  • (9i) Headings; Interpretation. The headings in this Agreement are for convenience only and are not to be used to interpret or construe any provision of this Agreement. Any use of “including,” “for example” or “such as” in this Agreement shall be read as being followed by “without limitation.” References to any times of day in this Agreement refer to the time of day in the Office Space’s time zone. Furthermore, this Agreement shall not be interpreted against either party by virtue of said party having been its preparer or “draftsman,” and the parties acknowledge and represent that they are both to be considered to have prepared, drafted and negotiated this Agreement and entered into it having first consulted with counsel of their choosing or knowingly opting not to do so.

 

  • (9j) No Assignment. Except in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of the shares or assets of the Member or, as the case may be, the Member’s parent corporation, the Member may not transfer or otherwise assign any of the Member’s rights or obligations under this Agreement, or this Agreement itself, (including by operation of law) without Candy Factory’s prior consent, which consent may be withheld at Candy Factory’s sole discretion. Candy Factory may assign this Agreement without the Member’s consent.

 

  • (9k) Sanctions. The Member hereby represents and warrants that (i) during the Term of this Agreement, the Member and all individuals who work for it will comply with all applicable U.S. and non-U.S. economic sanctions and export control laws and regulations, including, but not limited to, the economic sanctions regulations implemented under statutory authority and/or Executive Orders and administered by the U.S. Treasury Department's Office of Foreign Assets Control (“OFAC”) (31 C.F.R. Part 500 et seq.), the U.S. Commerce Department’s Export Administration Regulations (15 C.F.R. Part 730 et seq.), the economic sanctions rules and regulations of the European Council, United Kingdom, and EU Member States, and EU's Dual-use Regulation 428/2009 (collectively, “Trade Control Laws”); (ii) neither the Member nor any individual working for the Member, or Member’s subsidiaries, affiliates, directors, officers, Members, Managers, shareholders or principals, is (a) a citizen or resident of, an entity organized under the laws of, or otherwise located in, a country subject to comprehensive territorial sanctions maintained by OFAC (hereinafter referred to as “Sanctioned Countries”), (b) identified on U.S. Government restricted party lists including the Specially Designated Nationals List and Foreign Sanctions Evaders List administered by OFAC; the Denied Parties List, Unverified List or Entity List maintained by the U.S. Commerce Department Bureau of Industry and Security; or the List of U.S. State Department Directorate of Defense Trade Controls, (c) a listed person or entity on the Consolidated List of persons and entities subject to asset-freezing measures or other sanctions maintained by the European Union, and by the Member States of the European Union, or (d) a person or entity subject to asset- freezing measures or other sanctions maintained by the United Kingdom's HM Treasury (collectively referred to herein as "Restricted Parties"); (iii) neither  the Member nor any individual working for the Member, or Member’s subsidiaries, affiliates,  directors,  officers, Members, Managers, shareholders or principals, are 50% or more owned, individually or in the aggregate, directly or indirectly by one or more Restricted Parties or otherwise controlled by Restricted Parties; (iv) less than 10% of the Member’s total annual revenues are, and will continue to be for the duration of the Agreement, generated from activities involving, directly or indirectly, one or more of the Sanctioned Countries; and (v) neither the Member nor any individual working for the Member, or Member’s subsidiaries, affiliates, directors, officers, Members, Managers, shareholders or principals, will, at any time during the Term, engage in any activity under this Agreement, including the use of Services provided by Candy Factory in connection with this Agreement, that violates applicable Trade Control Laws or causes Candy Factory to be in violation of Trade Control Laws.

 

  • (9l) Anti-Money Laundering. The Member hereby represents and warrants that at all times, the Member and its employees, contractors, subcontractors, agents, representatives, subsidiaries, affiliates, directors, officers, Members, Managers, shareholders or principals, have conducted and will conduct the Member’s operations in accordance with all laws that prohibit commercial or public bribery and money laundering (the “Anti-Money Laundering Laws”), and that all funds which the Member will use to comply with the Member’s payments obligations under this Agreement will be derived from legal sources, pursuant to the provisions of Anti-Money Laundering Laws. The Member will provide  Candy Factory with all information and documents that Candy Factory may, from time to time, request from it in order to comply with all Anti- Money Laundering Laws.

 

  • (9m) Anti-Corruption Laws. Neither the Member nor any of the Member’s subsidiaries, affiliates, employees, contractors, agents, representatives, subcontractors, directors, officers, Members, Managers, shareholders or principals, or anyone else acting on the Member’s behalf,
  • (i) has, directly or indirectly, offered, paid, given, promised, or authorized the payment of any money, gift or anything of value to: (A) any Government Official or any commercial party, (B) any person while knowing or having reason to know that all or a portion of such money, gift or thing of value will be offered, paid or given, directly or indirectly, to any Government Official or any commercial party, or (C) any employee or representative of Candy Factory or the Candy Factory Parties for the purpose of (1) influencing an act or decision of the Government Official or commercial party in his or her official capacity, (2) inducing the Government Official or commercial party to do or omit to do any act in violation of the lawful duty of such official, (3) securing an improper advantage or (4) securing the execution of this Agreement, (ii) will authorize or make any payments or gifts or any offers or promises of payments or gifts of any kind, directly or indirectly, in connection with this Agreement, the Services or the Office Space. For purposes this section, “Government Official” means any officer, employee or person acting in an official capacity for any government agency or instrumentality, including state-owned or controlled companies, and public international organizations, as well as a political party or official thereof or candidate for political office.

 

  • (9n) Compliance with Laws. The Member hereby represents and warrants that at all times, the Member and its employees, contractors, subcontractors, agents, representatives, subsidiaries, affiliates, directors, officers, Members, Managers, shareholders or principals, have conducted and will conduct the Member’s operations ethically and in accordance with all applicable laws, statutes, rules, regulations, codes, ordinances.

 

  • (9o) Brokers. Except as may be provided for through the Candy Factory broker referral program, the Member hereby represents and warrants that the Member has not used a broker or realtor in connection with the membership transaction described within, and covered by, this Agreement. If the Member seeks to terminate this Agreement or ceases to pay its monthly Membership Fee except as otherwise explicitly permitted herein (each, an “Early Exit”), within fifteen (15) days of doing so, the Member shall reimburse Candy Factory for any fees previously paid by Candy Factory to a broker or realtor in connection with the membership transaction described within, and covered by, this Agreement, corresponding to the period following such Early Exit. The Member hereby agrees to indemnify Candy Factory for, and hold it harmless from, any and all claims, damages, actions, and causes of action arising from the breach of any warranty or representation made by Member within this Agreement.

 

  • (9p) Counterparts and Electronic Signature. This Agreement may be executed in any number of counterparts by either handwritten or electronic signature, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement, and each of which counterparts may be delivered by emailing the other party to this Agreement signed scanned document or electronically signed portable document format (pdf) version of the contract (as applicable). Each party agrees to the execution of this Agreement in this manner, and the parties acknowledge that execution in this manner creates a binding contract between the parties on the Effective Date.

 

  • (9q) Entire Agreement. This Agreement constitutes the entire agreement between the parties relating to the subject matter hereof and shall not be changed in any manner except by a writing executed by both parties or as otherwise permitted herein. All prior agreements and understandings between the parties regarding the matters described herein have merged into this Agreement.